Seasonal Layoffs don’t Equal ‘Seasonal Employee’ for Maine AWW Purposes

Case File

Is an employee who experiences intermittent layoffs due to the seasonal nature of his job a "seasonal" worker under Maine law? Not necessarily, and Simply Research subscribers can read the full text about it.

Case

Wayne Ireland v. Eurovia Atlantic Coast, LLC, No. 25-17 (Me. W.C.B. App. Div. 10/17/25)

What Happened

A heavy equipment operator who had sustained a previous work-related injury to his back was operating a grader when his supervisor, who was intoxicated, repeatedly struck the grader with a bulldozer, injuring the operator's neck and back. The operator returned to his regular work schedule after a few days out of work.

Following a seasonal layoff, the operator return to work and while using a bulldozer to spread fill that would form the base of a roadway, the operator testified that the fill had a strong odor like glue and during his 10-hour shift moving this material, he experienced a sore throat, dizziness, watering eyes, a flushed face, and odd taste.

Due to ongoing symptoms since the fill event, the operator did not return to work and filed petitions for award regarding both dates of injury.

The operator requested independent medical examinations regarding both the back and neck injury and the toxic exposure injury. The employer objecting, complaining that the operator had caused "numerous" delays in the litigation.

The administrative law judge ordered the examinations. Later, based on the ALJ granted the Petition for Award for the neck and shoulder and determined the average weekly wage to be $1,355.76. The ALJ found that this injury had resolved but ordered payment due to violation of Maine's 14-day rule.

The ALJ denied the Petition for Award on the toxic exposure claim, stating that the operator had not met his burden to establish that his symptoms were causally related to his employment.

Both parties filed motions for further findings of facts and conclusions of law, and the ALJ changed the AWW to $862.66.

The operator appealed to the Appellate Division of Maine's Workers' Compensation Board to determine the appropriate way to calculate AWW when an employe is subject to periodic layoffs associated with the nature of the employer's business.

Rule of Law

Under Maine law "average weekly wages, earnings or salary” of an injured employee are 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.

Less 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 if their inclusion would reduce the average weekly wages, earnings or salary.

Seasonal Workers. The AWW of a seasonal worker is determined by dividing the employee’s total wages, earnings or salary for the prior calendar year by 52. “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. "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 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 Appellate Division Said

According to the Appellate Division, the fallback provision applied to the operator's case and the other methods could not be "reasonably and fairly applied" because:

(1) The employee had not worked 200 days before the injury.

(2) The seasonal layoff meant that gross earnings via the second method would be higher than the operator's earning.

(3) The operate worked more than 26 weeks per year and thus, was not a seasonal worker.

Workers' Comp 101: In Pastula v. Lane Constr. Corp., No. 15-17 (Me. W.C.B. App. Div. 2015), The hearing officer had determined that the employee’s pattern of regular, yearly layoffs over a period of nine years constituted a consistently intermittent relationship with the labor market, making application of the fallback method appropriate. The employer had submitted evidence of comparable employee earnings, which the hearing officer found demonstrated that layoff periods were consistent in the industry. Because there was no evidence of actual earnings during the layoff period, the ALJ imputed a minimum wage-earning capacity during that period, added that amount to employee’s total earnings with the employer, and divided by 52 to arrive at the average weekly wage, and the Appellate Division held that because calculation pursuant to the fallback provision was flexible as long as comparable earnings were considered, it was not error to impute $360 per week in wages during the worker’s layoff period to fairly and reasonably estimate what she “would have been able to earn in the labor market in the absence of a work-injury.”

The Appellate Division looked to the Law Court's recent decision Bosse v. Sargent Corp., 340 A.3d 673 (Me. 2025) and noted that determing whether to apply the fallback provision when an employee has worked more than 26 weeks but fewer than 200 days, factors to consider include:

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

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

(3) Whether working fewer than 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 second method.

The Appellate Division highlighted that the ALJ correctly determined that application of the second method would result in an inflated AWW and so the fallback provision was warranted because the operator testified that he had operated heavy machinery for his entire career, and this work generally involved a layoff period over the winter.

"His long tenure in a profession with consistent annual layoffs suggests that his periods of unemployment were voluntary and that his future wages would not resemble the average weekly wage calculated" following a seasonal method of calculation.

The Appellate Division found that it was fair and reasonable to apply the fallback method.

Verdict: The Appellate Division affirmed the ALJ's decision.

Takeaway

Just because a worker experiences a seasonal layoff does not automatically mean that he is a "seasonal" worker for AWW purposes in Maine.

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