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Bossie v. S.A.D. 24
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Decision:	1997 ME 233
Docket: 	WCB-96-753
Argued:	October 10, 1997
Decided:	December 17, 1997



	[¶1]  The employee, Barbara Bossie, appeals from a decision of the
Workers' Compensation Board granting her petition for award.  Concluding
that neither of the first three methods for computing the average weekly
wage in 39-A M.R.S.A. §§ 102(4)(A), (B) & (C) (Supp. 1997), could be fairly
applied, the Board purported to apply subsection 102(4)(D) by dividing her
yearly earnings by 52.  Bossie contends that, because there was no evidence
of the earnings of similarly situated employees pursuant to subsection D, the
Board should have applied subsection B to determine her average weekly
wage and divided her total earnings by the number of weeks she worked in
the preceding year.  St. Pierre v. St. Regis Paper Co., 386 A.2d 714, 719-20
(Me. 1978).  We agree and vacate the decision of the Board.
	[¶2]  Bossie was employed at School Administrative District No. 24
(S.A.D. #24) as a cook for twenty-four years.  She worked during the school
year for 36 weeks from August to June.  The parties stipulated that, at the
time of her injury, Bossie earned an hourly wage of $9.75 for a regular 30
hour week, with total earnings, including holiday pay, of $10,530 a year. 
The parties also agreed that an additional $188.19 a month, or $2,258.28 a
year, in employer contributions to Bossie's health insurance should be
included in her average weekly wage.  Bossie left work due to a gradual
work-related injury in January 1993.  The Board granted her petition for
award in 1996 and awarded short-term total and continuing partial
incapacity benefits pursuant to 39-A M.R.S.A. § 102(4)(D) by dividing
Bossie's total yearly earnings by 52 to arrive at an average weekly wage of
$246.26.  We granted Bossie's petition for appellate review pursuant to 39-A
M.R.S.A. § 322 (Supp. 1997). 
	[¶3]  The selection of the proper method for determining the
"average weekly wage" proceeds sequentially through four alternative
provisions outlined in 39-A M.R.S.A. §§ 102(4)(A), (B), (C) & (D) (Supp.
1997).  Frank v. Manpower Temp. Servs., 687 A.2d 623, 625 (Me. 1996).  By
its terms, the first method, subsection A, does not apply because Bossie had
not been employed for at least 200 full working days during the immediately
preceding year prior to her injury.  39-A M.R.S.A. § 102(4)(A).  The second
method, applicable to employments that do not continue for more than 200
days in the immediately preceding year, is therefore applicable by its terms:

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).{1}  Although Bossie bore the burden of proof to
establish the average weekly wage on her petition for award, Frank, 687
A.2d at 625, she met that burden by presenting sufficient evidence to
support a calculation pursuant to subsection B.
	[¶4]  S.A.D. #24 contends, however, that because Bossie ordinarily
worked 36 weeks out of the year, application of subsection B would lead to
an inflated average weekly wage, and therefore it was appropriate for the
Board to apply the so-called "fall-back" provision, subsection D.  Subsection
D provides:

D.  When the methods set out in paragraph A, B or C of arriving
at the average weekly wages, earnings or salary of the injured
employee can not reasonably and fairly be applied, "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, that reasonably represents the weekly earning capacity
of the injured employee in the employment in which the
employee at the time of the injury was working.

39-A M.R.S.A. § 102(4)(D).
	[¶5]  S.A.D. #24 argues that although subsection B is applicable on its
face, subsection D would be the best method for calculating the average
weekly wage of an employee, like Bossie, with a long-term history of
employment for substantially less than the normal full working year.  As
Professor Larson states in his treatise, the average weekly wage
determination is not based solely on what that employee is theoretically
capable of earning, but on the employee's actual work-history, e.g., the
employee's willingness to work full-time and the availability of full-time
employment in the competitive labor market.  2 A. Larson, The Law of
Workmen's Compensation, §§ 60.21(c), 60.22(a) (1993).  Professor Larson
is critical of jurisdictions that determine the earnings of long term part-
time employees based on what those employees might earn in hypothetical
full-time employment:

The flaw in this reasoning is that the purpose of the wage
calculation is not to arrive at some theoretical concept of loss of
earning capacity; rather it is to make a realistic judgment on
what the claimant's future loss is in the light of all the factors
that are known.  One of these factors is the established fact of
claimant's choice of a part-time relation to the labor market.  If
this is clear, and above all there is no reason to suppose it will
change in the future period into which the disability extends,
then it is unrealistic to turn a part-time able-bodied worker into
a full-time disabled worker.

Id. at § 60.21(c). In discussing the analagous situation of a school teacher,
Professor Larson states:

If a school teacher, for example, is paid $2,000 a month for nine
months of the year, there is no reason to calculate earning
capacity on the unrealistic basis of $2,000 a month for twelve
months; if the wage statute says that monthly wages shall be
multiplied by twelve, this (and any comparable situation) is an
appropriate occasion for application of the residual clause [our
subsection D], which exists for the express purpose of taking
care of just such nonstandard wage relations.

Id. at § 60.22(a).
	[¶6]  Although we agree with S.A.D. #24 that subsection D might have
been the best method of determining the average weekly wage in this case,
as the party asserting the application of subsection D, S.A.D. #24 bore the
burden of providing evidence to support a determination pursuant to that
subsection.  See Fernald v. Dexter Shoe Co., 670 A.2d 1382, 1385 (Me.
1996) (employer asserting that employee's earnings varied from week to
week bears burden of proof on employee's petition to show variability). 
Subsection D does not require rigid adherence to an exact mathematical
formula.  Roberts v. Smith, 415 A.2d 1089, 1090 (Me. 1980).  Nevertheless,
as Bossie contends, method D expressly requires a consideration of the
earnings of "comparable employees."  Harrigan v. Maine Veterans Home,
1997 ME 224, ¶ 7, ___ A.2d ___, n.4;  St. Pierre, 386 A.2d at 719-20. 
Indeed, we held in St. Pierre that the "comparable employee" requirement
of former 39 M.R.S.A. § 2(2)(C) (1989), repealed by the Maine Workers'
Compensation Act of 1992, P.L. 1991, ch. 885, § A-7, the predecessor
statute to subsection D, could not be satisfied by the consideration of the
earnings of only one "comparable employee."  386 A.2d at 719-20.  We
stated, in pertinent part, that the fall-back provision

plainly mandates that consideration be given to the earnings of
similarly situated employees, in the plural.  The picking of a
single 'comparable employee' and the averaging of that single
employee's wages during the preceding year does not comply
with the statute's requirement.  Except by the rarest of
coincidences, choice of even one 'comparable employee' in
addition to [the one chosen] would have changed, either up or
down, the resulting arithmetic average.  Even that, however,
would not satisfy the statute.  While the technique of designating
a single 'comparable' worker has the advantage of administrative
convenience to recommend it, that method of computation is
unduly restrictive and, as the facts of the present case illustrate,
may well disadvantage the employee by ascribing to him lower
'average weekly wages' than he is by law entitled to.  Manifestly,
both St. Regis and the commission erred in failing to give due
regard to all the factors enumerated in paragraph C. . . . 
Whatever greater burden is imposed upon the parties and the
commission by our reading of paragraph C to require more than
merely averaging the wages of a single 'comparable employee' is
required, we believe, by the clear intendment of the statute. 
The legislature alone has the authority to authorize an
administrative shortcut or any other rule of convenience that
those administering the Workmen's Compensation Act may

Id. (citations omitted) (emphasis added).  In this case, S.A.D. #24 did not
present evidence of the earnings of comparable employees and, therefore,
did not provide a basis for the application of subsection D.
	[¶7]  S.A.D. #24 contends that this case is distinguishable from St.
Pierre because, in that case, the employee had only worked for the employer
a short time prior to his injury.  386 A.2d at 716.  By contrast, Bossie's 24
year work history with her employer provided ample evidence of her
earning capacity, and, therefore, the Board was permitted to forego an
examination of the earnings of comparable employees pursuant to subsection
D.  We disagree.  The Legislature has carefully outlined four alternative
methods to best arrive at a fair estimate of the employee's earning capacity. 
As we have stated, "these methods are not to be applied in the alternative as
a matter of choice, but are to be applied in the order stated, to the facts as
they exist in the particular case, upon the principle of resorting to the best
evidence obtainable in determining the employee's average wage." 
Thibeault's Case, 119 Me. 336, 338, 111 A. 491, 492 (1920).  The
Legislature has reasonably concluded that in cases when the methods of
subsections A, B, or C cannot be fairly applied, the next most reliable
approach to arriving at a fair estimate of the employee's earning capacity
must include a consideration of the earnings of comparable employees.  We
therefore do not interpret the express language requiring consideration of
comparable employees as mere surplusage.  St. Pierre, 386 A.2d at 719-20. 
Moreover, as Bossie contends, the Board has, in effect, applied the
methodology of subsection C, the seasonal employment provision, to an
employment that regularly continues for more than 26 weeks in a calendar
year and, therefore, does not fall within the terms of that provision.  39
M.R.S.A. § 102(4)(C)(1).  Such an interpretation could potentially lead to the
application of the seasonal employment provision to all employees regularly
employed for more than 26, but fewer than 52, weeks in a calendar year,
and would therefore defeat the purpose of the 26 week limitation in
subsection (C)(1).  We see no support for this approach in the statutory
	[¶8]  S.A.D. #24 next contends that, while former 39 M.R.S.A.
§ 2(2)(C), at issue in St. Pierre, may have required consideration of
comparable employees in all cases, such a result is not required pursuant to
our current subsection D.  Former subsection C is remarkably similar to
subsection D:

C.  In cases where the foregoing methods of arriving at the
"average weekly wages, earnings or salary" of the injured
employee cannot reasonably and fairly be applied, said "average
weekly wages" shall be taken at such sum as, 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, shall reasonably represent the weekly
earning capacity of the injured employee at the time of the
injury in the employment in which he was working at such time.

39 M.R.S.A. § 2(2)(C) (1989) (emphasis added), repealed by the Maine
Workers' Compensation Act of 1992, P.L. 1991, ch. 885, § A-7.  Current
subsection 102(4)(D), by contrast, provides 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) (emphasis added). 
S.A.D. #24 contends that the replacement of the language "shall be taken" in
former subsection C, with the word "means" in current subsection D,
suggests that the consideration of comparable employees is now a matter of
Board discretion.  We disagree.  As we have stated, "'when statutory language
has acquired a consistent and entrenched meaning through prior judicial
decisions, we will not abandon our traditional interpretation of that language
unless there is express statutory language plainly showing a legislative intent
to abrogate those prior decisions.'"  Bureau v. Staffing Network, Inc., 678
A.2d 583, 588 (Me. 1996) (quoting Tripp v. Philips Elmet Corp., 676 A.2d
927, 930-31 (Me. 1996)).  The use of the word "means" in the context of
the current provision is no less mandatory than the phrase "shall be taken"
in former subsection (2)(C).
	The entry is:
		The decision of the Workers' Compensation Board
vacated.  Remanded to the Workers' Compensation
Board for further proceedings consistent with the
decision herein.

Attorney for employee: William J. Smith, Esq., (orally) 55 Main Street Van Buren, ME 04785 Attorneys for employer: Paul H. Sighinolfi, Esq. Jane E. Skelton, Esq., (orally) Rudman & Winchell, LLC P O Box 1401 Bangor, ME 04402-1401
FOOTNOTES******************************** {1} Both parties concede that because Bossie's employment continued longer than 26 weeks, she is not a seasonal employee pursuant to 39-A M.R.S.A. § 102(4)(C)(1) (Supp. 1997).