Maine Top Court Focuses on Future Earnings in Setting AWW for Seasonally Laid-Off Trucker

Case File

Determining which of two methods for calculating average weekly wage for an employee who worked seasonally but might have been able to do more but for her injury required Maine's Law Court to consider more than just her pay at the time of the injury. Simply Research subscribers have access to the full text of the decision.

Case

Bosse v. Sargent Corp., No. 340 A.3d 673 (Maine 2025)

What Happened?

A truck driver drove often worked 50 to 70 hours per week but faced winter layoffs each year. Not all drivers for the company were laid off during the winter, and the driver did not choose to be laid off and would have worked year-around if the company permitted her to.

Due to back and hip pain, the driver filed a petition for award of workers' compensation benefits, alleging a gradual work injury arising out of her work for the company. The driver worked 30 out of the 52 weeks preceding her injury.

Following a hearing, an administrative law judge granted the driver's petition, awarding her a closed-end period of total incapacity benefits corresponding to her hip surgery and recovery period as well as ongoing partial incapacity benefits related to her back problem.

In calculating the driver's average weekly wage, applied Maine's provision for seasonal employment rather than the fallback provision that the company requested.

The company appealed, and the Appellate Division found no competent evidence to support the ALJ's finding that the driver's employment immediately prior to her employment with the company was year-round.

Nonetheless, on remand, the ALJ came to the same result for calculating AWW despite striking the factual finding that the drive had worked year-round.

On appeal, the Appellate Division affirmed the ALJ's decision, holding that the provision for seasonal employment could "fairly and reasonably be applied to calculate the driver's AWW."

The company appealed to the Law Court.

Rule of Law

In Maine, the following standards govern how to determine a worker's AWW:

The Basics. “Average weekly wages, earnings or salary” of an injured employee means the amount that the employee was receiving at the time of the injury for the hours and days constituting a regular full working week in the employment or occupation in which the employee was engaged when injured; except that this does not include any reasonable and customary allowance given to the employee by the employer for the purchase, maintenance or use of any chainsaws or skidders used in the employee’s occupation if that employment or occupation had continued on the part of the employer for at least 200 full working days during the year immediately preceding that injury. "Reasonable and customary allowance” is the allowance provided in a negotiated contract between the employee and the employer or, if not provided for by a negotiated contract, an allowance determined by the Department of Labor. In the case of piece workers and other employees whose wages during that year have generally varied from week to week, wages are averaged in accordance with the method for fewer than 200 working days.

Fewer than 200 Days. When the employment or occupation did not continue 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.

Calculating AWW for Seasonal Workers. 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) 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) 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.

Fallback Provision. When the preceding methods of arriving at the average weekly wages, earnings or salary of the injured employee cannot 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.

What the Law Court Said

Nothing that several factors were relevant when determining whether to deviate from the 200-day provision, including whether the worker's history of less-than-full time employment was voluntary and whether the AWW computation would be greatly inflated compared to actual past earnings, the Law Court reasoned that there were two circumstances that could justify consideration of the fallback provision:

(1) The employee had not worked full-time in the past by choice

(2) The application of the 200-day provision resulted in an annual award that was greatly inflated comparted to the worker's actual past wages.

Workers' Comp 101: In Bossie v. Sch. Admin. Dist. No. 24, 706 A.2d 578 (Me. 1997), an injured worker was employed as a school cook for 24 years, and she worked during the school year, which lasted 36 weeks. The district argued for the application of the fallback provision, claiming that application of the 200-day method would lead to an inflated AWW. According to the Law Court, AWW determination was not based solely on what that employee was 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.

The Law Court determined that the Appellate Division applied relevant factors in identifying the driver's realistic future earning capacity, noting that the driver's annual lay-off was not a matter of choice and other truckers for the company worked full-time during the winter months.

"Lay-offs were based on seniority and performance reviews, and [the driver] was a good and hard worker," the court wrote. "Thus, there was a realistic possibility that [the driver] would have been employed by [the company] year-round as truck driver in the future if not for her injury."

The court highlighted that the 200-day method involved consideration of factors relevant to a "realistic determination of future earning capacity," including:

(1) The size of the difference between an employee’s actual past wages and the annual award as calculated pursuant to the 200-day method

(2) Whether an annual lay-off or other period of unemployment was voluntary

(3) Whether working 52 weeks each year is a characteristic of the occupation

(4) Whether there was a realistic possibility that the employee's future wages would resemble the AWW calculated under the method

Additionally, the court highlighted that the driver's injury affected her earning capacity year-round, not just during the months she regularly worked for the company.

"The record demonstrates that in the past she has received additional income during layoff periods by working elsewhere or collecting unemployment benefits," the court wrote. "These facts, viewed collectively, support the conclusion that, despite a significant disparity between [the driver's] actual wages from [the company] and the AWW computation under [the 200-day method], it was nonetheless fair and reasonable to apply [the 200-day method] to determine [the driver's] future year-round earning capacity."

Verdict: The Law Court affirmed the Appellate Division's judgment.

Takeaway

In Maine, when an injured worker has not worked at least 200 days in the year prior to an injury but has worked over 26 weeks during that year, the 200-day method generally applies. If application of that method results in a large difference between the worker's AWW and actual past wages, an ALJ can evaluate the reasons for the difference to further the overarching goal of identifying the injured worker's realist future earning capacity. These factors include:

(1) Whether the worker's history of not working full-time was voluntary

(2) Whether not working all the months of the year was characteristic of the employment

(3) Whether working full-time in the future was a realistic possibility

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