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BROWN v. THOMAS O'CONNOR & CO.9/18/1996
Thomas O'Connor & Co., Inc. appeals from a decision of the Workers' Compensation Board denying its petition to reduce the determination of the average weekly wage of Daniel W. Brown. O'Connor contends that it was error for the Board to calculate the average weekly wage by dividing Brown's total earnings from O'Connor by the number of weeks Brown worked for O'Connor, when Brown had worked for other employers during the year. 39 M.R.S.A. § 2(2)(B), repealed and replaced by P.L. 1991, ch. 885, §§ A-7, A-8 (effective January 1, 1993), codified as 39-A M.R.S.A. § 102(4)(B) (Supp. 1995). O'Connor also appeals from a decision of the Board granting its petition for review and ruling that, because O'Connor failed to present labor market evidence showing the availability of work, Brown's post-injury work, consisting of six hours per week at five dollars an hour, was prima facie evidence of his earning capacity. 39 M.R.S.A. § 55-B (1989). Fecteau v. Rich
Brown suffered a compensable injury on November 5, 1988 while employed by O'Connor, and O'Connor accepted responsibility for the injury by memorandum of payment. Prior to his injury, Brown worked for several employers for a total of about forty weeks during the calendar year of 1988. Brown worked thirteen weeks for O'Connor during three separate intervals, earning a total of $1,172.63 with an additional $132 a week in fringe benefits. Subsequent to his injury, Brown obtained a part-time cleaning job for six hours a week at a pay rate of five dollars an hour.
In December 1992 O'Connor filed petitions for review of Brown's incapacity and to reduce the determination of his average weekly wage. The Board initially granted the petition to redetermine Brown's average weekly wage, calculating an average weekly wage of $461.88 by dividing Brown's total earnings in 1988, including fringe benefits, by the forty weeks that Brown was employed that year by all employers. The Board also concluded that although O'Connor met its burden on its petition for review to show that Brown had regained a work-capacity, it failed to meet its ultimate burden to show that higher paying work was available to Brown. The Board concluded that "although Brown's work search was weak," he met his burden of production to show the unavailability of work within his restrictions. The hearing officer also concluded, however, that Brown's "present six hour a week position does not establish his actual earning capacity under [Fecteau, 349 A.2d at 166]" and that Brown was capable of working forty hours per week at six dollars per hour ($240 per week). Based on an average weekly wage of $461.88, the Board concluded that Brown had a forty-eight percent partial incapacity.
In response to Brown's motion for findings of fact and conclusions of law, however, the Board denied the employer's petition to determine the average weekly wage. Stating that the "parties agree that the employee's average weekly wage is to be determined under [39 M.R.S.A. § 2(2)(B)]," the Board concluded that Brown's average weekly wage, including fringe benefits, was $711.77. This latter wage was derived by considering only Brown's earnings from O'Connor, exclusive of the first week of employment. The Board also revised its determination of Brown's work incapacity from forty-eight percent to ninety-six percent. Citing our decision in Flanigan v. Ames Dep't Store, 652 A.2d 83, 86 (Me. 1995), the Board concluded that Brown's six-hour per week post-injury employment was prima facie evidence of his work capacity and that the employer failed to meet its burden to rebut this prima facie evidence with competent evidence to show that work at higher wages was available to Brown within his restrictions. We granted O'Connor's petiti
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