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Harrigan v. Veterans Home
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:		1997 ME 224
Docket:		WCB-96-570
Argued:		October 7, 1997
Decided :		November 24, 1997

Panel:	WATHEN, C.J., and  ROBERTS, CLIFFORD, RUDMAN, DANA{1} and LIPEZ, JJ.




DONNA HARRIGAN v. MAINE VETERANS HOME



CLIFFORD, J.

	[¶1]  The employer, Maine Veterans Home, appeals from a decision of
the Workers' Compensation Board, granting the employee's petition for
award.  Because we agree with Maine Veterans' contention that the
employee's concurrent employment as a cashier at an amusement park was
seasonal and that the Board should have calculated her earnings from that
employment pursuant to 39-A M.R.S.A. § 102(4)(C) (Supp. 1996) to arrive at
her average weekly wage, we vacate the decision of the Board.
	[¶2]  Donna Harrigan was employed at Maine Veterans Home. 
Harrigan had a second job as a cashier at Palace Playland, an amusement
park in Old Orchard Beach, where she worked roughly 14 weeks a year
during the summer season when Palace Playland was open, from June until
Labor Day.  Harrigan suffered a work-related injury on August 4, 1994 at
Maine Veterans.  On Harrigan's petition for award, the Board calculated an
average weekly wage from Maine Veterans in the amount of $196.84. 
39-A M.R.S.A. § 102(4)(B) (Supp. 1996).  Maine Veterans contended before
the Board, as it does on appeal, that Harrigan's concurrent employment
at Palace Playland was seasonal within the meaning of
39-A M.R.S.A. § 102(4)(C), and that pursuant to that section her average
weekly wage from that employment should be calculated by dividing her
total earnings from Palace Playland by 52 weeks in a year, resulting in a
concurrent weekly wage of $31.63.  The Board rejected Maine Veterans'
contention.  Taking Harrigan's concurrent wage from Palace Playland of
$160 a week,{1} and applying 39-A M.R.S.A. § 102(4)(E) (Supp. 1996), the
Board added the two average wages to arrive at a total average weekly wage
of $356.84.  39-A M.R.S.A. §§ 102(4)(B) & (E).  We granted Maine Veterans'
petition for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp. 1996).
I.
	[¶3]  The methods for calculating the "average weekly wage" are set
out in 39-A M.R.S.A. §§ 102(4)(A), (B), (C) & (D) (Supp. 1996).  Those
methods must be analyzed for application in the order that they appear. 
Frank v. Manpower Temp. Servs., 687 A.2d 623, 625 (Me. 1996).  The first
method applies when an employee has been employed for at least 200 full
working days during the immediately preceding year prior to the injury. 
39-A M.R.S.A. § 102(4)(A) (Supp. 1996).  The second method applies to
employees who are employed for fewer than 200 days or whose earnings
vary from week to week:

B.  When the employment or occupation did not continue
pursuant to paragraph A for 200 full working days, "average
weekly wages, earnings or salary" is determined by dividing
the entire amount of wages or salary earned by the injured
employee during the immediately preceding year by the total
number of weeks, any part of which the employee worked
during the same period.  The week in which employment
began, if it began during the year immediately preceding the
injury, and the week in which the injury occurred, together
with the amounts earned in those weeks, may not be
considered in computations under this paragraph if their
inclusion would reduce the average weekly wages, earnings or
salary.

39-A M.R.S.A. § 102(4)(B).  The third method applies to "seasonal
employees:" 

C.  Notwithstanding paragraphs A and B, the average weekly
wage of a seasonal worker is determined by dividing the
employee's total wages, earnings or salary for the prior calendar
year by 52.

(1) For the purpose of this paragraph, the term "seasonal
worker" does not include any employee who is customarily
employed, full time or part time, for more than 26 weeks
in a calendar year.  The employee need not be employed by
the same employer during this period to fall within this
exclusion.

(2) Notwithstanding subparagraph (1), the term "seasonal
worker" includes, but is not limited to, any employee who
is employed directly in agriculture or in the harvesting or
initial hauling of forest products.

39-A M.R.S.A. § 102(4)(C) (emphasis added).  
	[¶4]  The fourth method applies when none of the first three
methods can be reasonably and fairly applied.  39 M.R.S.A. § 102(4)(D).  The
concurrent employment provision, subsection E, provides:

When the employee is employed regularly in any week
concurrently by 2 or more employers, for one of whom the
employee works at one time and for another of whom the
employee works at another time, the employee's average weekly
wages are computed as if the wages, earnings or salary received
by the employee from all such employers were wages, earnings
or salary earned in the employment of the employer for whom
the employee was working at the time of the injury.

39-A M.R.S.A. § 102(4)(E).  
	[¶5]  There is no dispute that because Harrigan was not employed at
Maine Veterans for 200 working days prior to her injury, subsection B
should apply to the calculation of her earnings from Maine Veterans and that
her average weekly wage from her employment at Maine Veterans was
properly calculated.  Harrigan contends, however, and the Board apparently
agreed, that subsection E requires the Board to apply the same calculation
method to determine the average wage at the concurrent employment as
the Board used to determine the wage at the employment responsible for
the injury, in Harrigan's case subsection B, despite the fact that the
concurrent earnings were from seasonal employment.  Harrigan relies on
the provision in subsection E that earnings in the concurrent employment
shall be computed as if earned "in the employment of the employer for
whom the employee was working at the time of the injury."  39-A M.R.S.A. §
102(4)(E).  We are unpersuaded that the concurrent employment language
in section 102(4)(E) operates to negate the application of section 102(4)(C)
to wages earned in seasonal employment.  
	[¶6]  As Maine Veterans points out, failing to calculate the average
weekly wage from Harrigan's position at Palace Playland pursuant to section
102(4)(C) results in a highly inflated average weekly wage to Harrigan,{2} and
is inconsistent with the purpose of the average weekly wage statute "'to
arrive at an estimate of the 'employee's future earning capacity as fairly as
possible.'"  Frank, 687 A.2d at 625 (citation omitted).  The seasonal
employment provision was originally enacted with the purpose of preventing
seasonal workers from collecting inflated benefits that would otherwise
occur if their average weekly wage was calculated as nonseasonal earnings. 
P.L. 1987, ch. 559, pt. B, § 14; Sen. Amend. B. to L.D. 1929, No. S-307,
Statement of Fact (113th Legis. 1987) (the purpose was to "prevent an
individual who is injured while working at a seasonal job from collecting
benefits year-round at an artificially-enhanced rate").{3}  
	[¶7]  Contrary to the contentions of Harrigan, and as we stated in
Valliere v. William Underwood Co., 537 A.2d 1161, 1162-63 (Me. 1988), the
concurrent wage provision in section 102(4)(E) "is not an independent
alternative method of computing average weekly wages," but is intended to
make clear that the employer legally liable for the payment of benefits to the
employee for the injury is responsible for the payment of benefits that are
based, in part, on the employee's lost earnings from her concurrent
employment.  The language of the statute and its purpose make it clear that
an employee's average weekly wage from concurrent employment should be
calculated separately, based on the nature of that employment,{4} and then
added together with the average weekly wage from the other source of
employment to arrive at a total average weekly wage that accurately reflects
her actual earnings.
II.
	[¶8]  Harrigan also contends that, even if subsection C were to apply
to calculate the average weekly wage from concurrent employment in a
seasonal position, her cashier position at Palace Playland, an amusement
park open in the summer season only, is not inherently seasonal, and
accordingly, subsection B, and not subsection C, should govern the
determination of the wages from that employment.  Harrigan relies
primarily on Frank, 687 A.2d at 625, in which we held, in part, that it was
error for the Board to treat the employee's "sporadic, short-term"
employment as a construction worker, and temporary assignment as a
factory worker, as "seasonal" employment for purposes of subsection C.  Id. 
We stated:

	The word "seasonal" implies the work must have some
relation to the seasons.  According to Webster's Dictionary, the
word "seasonal" means "[o]f, pertaining to, occurring at, or
affected by the season or seasons; as, seasonal storms; seasonal
industries."  Webster's New Collegiate Dictionary 763 (2nd
ed.1959).  Seasonal employment is employment that is
inherently seasonal in nature, and not merely employment that
is less than 26 weeks in duration.  As Professor Larson states,
pursuant to ordinary seasonal wage statutes, "it is the inherent
seasonal nature of the employment that controls, not the
claimant's seasonal connection with it."  See 2 A. Larson, The
Law of Workmen's Compensation, § 60.22(a), n. 39 (1993). 
Subparagraph 1 in Paragraph C is an "exclusion" to the
definition of a "seasonal worker."  The word "exclusion"
suggests that the employee must first qualify as a "seasonal
worker" and then meet the additional criteria of having worked
less than 26 weeks in a calendar year.

Id.   We also stated: "One employed as a ski instructor or a summer camp
counsellor is a seasonal employee."  Id. at 625 n. 2.  Harrigan contends that
a cashier position could, in theory, be available on a year-round basis, and is
therefore, not inherently seasonal. 
	[¶9]  Contrary to Harrigan's contention, "employment" within the
meaning of seasonal employment set out in section 102(4)(C) does not refer
to a generalized, theoretical vocation, such as "cashier," but to the
employee's actual employment within a specific industry.  Harrigan worked
as a cashier, a common position in a seasonal amusement park, and readily
admitted that the employment was summer employment only.  The language
of section 102(4)(C) does not require the Board to engage in a hypothetical
inquiry as to whether every occupation in an admittedly seasonal industry
could, in theory, be carried out on a year-round basis.  The history of the
seasonal employment calculation provision demonstrates that the primary
legislative focus is on the industry itself, and not on the employee's duties
within that industry.  The language of subparagraphs 1 and 2 were originally
added to former title 39 in 1989.  P.L. 1989, ch. 511 (codified at 39 M.R.S.A.
2(2)(B-1) (Supp. 1991)), repealed by Maine Workers' Compensation Act of
1992, P.L. 1991, ch. 885, § A-7.  The Statement of Fact provides:
 
This amendment provides that employees who are employed
directly in agriculture or directly in wood harvesting or the first
road transportation of harvested wood are considered seasonal
workers under the Workers' Compensation Act even if they
customarily work for more than 26 weeks in a calendar year. 
The amendment concentrates the potential savings under the
seasonal workers' provision in that area of the State's economy
that has experienced the highest workers' compensation
insurance premium costs.

Sen. Amends. A and B to L.D. 1521, Nos. S-321, S-337, Statement of Fact
(114th Legis. 1989).  It is significant that the statement of fact does not
mention a vocation or occupation within an industry, but more broadly refers
to the various seasonal industries that comprise a discrete "area" of the
economy.
	[¶10]  To fall within subsection C, the employment must be both
seasonal in nature and must not continue, full time or part-time, for more
than 26 weeks in a calendar year.  Frank, 687 A.2d at 625.  Harrigan
contends that, because the second sentence of subsection (C)(1) provides
that "[t]he employee need not be employed by the same employer during
this period to fall within this exclusion," the weeks she was employed at
Maine Veterans must be used in determining whether her earnings from
Palace Playland were seasonal.  39-A M.R.S.A. § 102(4)(C)(1).  We disagree. 
Both the language of the statute and its purpose compel us to conclude that
only those separate employments that are seasonal may be considered in the
determination of the 26-week exclusion.  It makes little sense to consider
weeks of employment in unrelated nonseasonal employment for purposes of
determining whether seasonal employment falls within the 26-week
exclusion.
	The entry is:
The decision of the Workers' Compensation
Board vacated.  Remanded to the Workers'
Compensation Board for further proceedings
consistent with the opinion herein.

Attorney for employee: Robert J. Piampiano, Esq., (orally) Troubh, Heisler & Piampiano, P.A. P O Box 9711 Portland, ME 04104-5011 Attorneys for employer: Robert W. Kline, Esq., (orally) Lisa M. Fitzgibbon, Esq. Carl W. Tourigny, Esq. Kline Law Offices P O Box 7859 Portland, ME 04112 Attorneys for amici curiae: Mark A. Cloutier, Esq. Cloutier, Barrett, Clourtier & Conley, P.A. 22 Monument Square Portland, ME 04101-4053 (Maine Oil Dealers Ass'n Workers' Comp. Trust) Evan M. Hansen, Esq. Elizabeth J. Wyman, Esq. Preti, Flaherty, Beliveau & Pachios P O Box 11410 Portland, ME 04104-7410 (for an ad hoc group of self-insureds)
FOOTNOTES******************************** {*} Dana, J., sat at oral argument but did not participate therafter. {1} Maine Veterans argues persuasively that the Board erred in concluding that Harrigan's net weekly earnings at Palace Playland were $160. On remand, however, the Board must calculate Harrigan's average weekly wage from Palace Playland pursuant to section 102(4)(C). {2} The Board's finding of $160 as Harrigan's gross weekly wages, carried out over 52 weeks, would result in total yearly gross earnings of $8,320. Her W-2 form for 1994 shows that her actual yearly earnings from Palace Playland were $1,644.81 {3} Former title 39 has been repealed and replaced by Title 39-A. Maine Workers' Compensation Act of 1992, P.L. 1991, ch. 885, §§ A-7, A-8 (effective January 1, 1993). The former Act contained virtually identical language with respect to the average weekly wage issue presented in this appeal. {4} Harrigan also contends that the Board's result is supported pursuant to subsection D, applicable when the first three methods cannot be fairly applied. We disagree. Even if section 102(4)(D) could be construed to have application, it provides in pertinent part that "'average weekly wages' means the sum, having regard to the previous wages, earnings or salary of the injured employee and of other employees of the same or most similar class, working in the same or most similar employment in the same or a neighboring locality. . . ." 39-A M.R.S.A. § 102(4)(D) (Supp. 1996) (emphasis added). Because Harrigan bore the burden of proof to establish the average weekly wage on her petition for award, Frank, 687 A.2d at 624, and because she provided no evidence of the earnings of comparable employees, there is no evidentiary basis to support a calculation of the average weekly wage pursuant to subsection D. St. Pierre v. St. Regis Paper Co., 386 A.2d 714, 719-20 (Me. 1978) (interpreting former 39 M.R.S.A. § 2(2)(C), repealed by Workers' Compensation Act of