Maine Walmart Worker’s New Duties Indicate ALJ Miscalculated AWW

02 Jan, 2024 Frank Ferreri


Bangor, ME ( -- When does an employee's change in job duties represent new employment?

As the Appellate Division of Maine's Workers' Compensation Board explained in Farmer v. Walmart Inc., No. 23-19 (W.C.B. Me. App. Div. 12/22/23), that question could change what an employee's average weekly wage calculation is.

A Walmart worker held several different positions with the retail giant before moving into the receiving department. In the receiving department, her job duties included assigning the remodel team and traveling to other locations to assist in remodeling stores.

During a remodel, the worker sustained a left lower extremity injury when a section of a wall rolled over her foot. The worker was able to continue working at Walmart in an accommodated role until her employment was terminated about five months after the injury. Following the termination, the worker was paid total incapacity benefits until Walmart filed a 21-day discontinuance.

An administrative law judge granted a provisional order awarding the worker total incapacity benefits pending a hearing based upon an average weekly wage of $349.66, which included the lower wages she earned before moving to the receiving department.

At a hearing, despite finding that the worker's duties changed when she transferred departments and that her hourly wage increased, the ALJ concluded that the change did not amount to a change in employment or occupation.

The worker appealed to Maine's Workers' Compensation Board's Appellate Division, challenging the ALJ's AWW calculation.

Under Maine law, AWW is defined as follows:

+ “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 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.

+ 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.

The worker argued that her new position in the receiving department constituted a new employment or occupation and because her employment or occupation did not continue for 200 full working days during the year immediately preceding the injury, the first definition of AWW did not apply and the second one should have.

The board agreed with the worker and determined that the ALJ applied a precedent case too narrowly in deciding that the worker's transfer was not a new employment or occupation.

The board noted:

(1) The worker's duties changed from folding clothing to accepting deliveries and doing claims for damaged goods, which was a more physical job than what the worker did in the apparel department.
(2) The worker's new duties included traveling to other stores to assist with remodeling.
(3) The worker received a $1 per hour raise, which the board saw "no reason to conclude" did not indicate a "significant increase in the employee's value to the employer."

As a result, the board vacated and remanded the ALJ's decision for redetermination of the worker's AWW.

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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law. Frank encourages everyone to consider helping out the Kind Souls Foundation and Kids' Chance of America.

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