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FRANK v. MANPOWER TEMPORARY SERVICES12/24/1996
Kurt Frank appeals from a decision of the
Twenty-three years of age at the time of his injury on February 3, 1993, Frank had a history of sporadic, short-term employment. From 1990 to 1992, he had been employed as a construction worker for Talbot Construction. Because he was paid "under the table," he had no documentary proof of his earnings. Although he had sought employment through Manpower since 1991, his employment opportunities were limited because he had no access to transportation. He was given his first work assignment through Manpower in January, 1993, when he was employed as a factory worker for less than two weeks. Approximately one week after this temporary assignment ended, Frank was assigned to Unico, where he worked full-time earning $6.00 an hour. He was informed by Unico at the time of the assignment that the duration of the job was "indefinite."
Frank suffered a work-related injury on February 22, 1993, after working for Unico for approximately one-to-two weeks. Unico accepted the injury pending investigation and filed a wage statement showing a weekly wage of $151.30. Manpower unilaterally revised its determination of the wage to $11.64 to reflect seasonal worker status. In 1995 the Board awarded Frank short-term total benefits ending in June 1993. The Board concluded "the employee did not meet his burden of proving average weekly wage and exclusion from seasonal worker status," and therefore that Manpower had correctly calculated his average weekly wage as a seasonal employee. We granted Frank's petition for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp. 1996).
As the Board observed in its decision, "the initial issue presented by the parties is a calculation of the average weekly wage." The term "average weekly wages" is statutorily defined in Subsection 102(4) of Title 39-A. The Board unnecessarily directed its
The purpose of the average weekly wage calculation is to arrive at an estimate of the "employee's future earning capacity as fairly as possible." Fowler v. First Nat'l Stores, Inc., 416 A.2d 1258, 1260 (Me. 1980) (quoting Landry v. Bates Fabrics, Inc., 389 A.2d 311, 313 (Me. 1978)). The Board found not only that Frank did not meet his burden of proving his average weekly wage but also imposed on him the burden of proving exclusion from seasonal worker status. Though we agree the employee must offer evidence to establish his or her average weekly wage, White v. Monmouth Canning Co., 228 A.2d 795, 801 (Me. 1967), the statute does not place a burden on the employee to prove that he is not a seasonal employee.
There is nothing seasonal about Frank's employment. The word "seasonal" implies the work must have some relation to the seasons. According to Webster's Dictionary, the word "seasonal" means " 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.
The record reflects in the instant situation that Frank did offer evidence of his pr
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