HARRIGAN v. MAINE VETERANS HOME
11/24/1997
[ 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, 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 on 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
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