Lorri Bosse v. Sargent Corporation

MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2025 ME 74

Docket: WCB-24-339

Argued: June 5, 2025

Decided: August 14, 2025

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, DOUGLAS, and LIPEZ, JJ.

LORRI BOSSE

v.

SARGENT CORPORATION et al.

CONNORS, J.

[¶1] Sargent Corporation and Cross Insurance TPA, Inc. (collectively

Sargent) appeal from a decision of the Workers’ Compensation Board Appellate

Division granting Lorri Bosse’s petition for award of benefits. The applicable

statute, 39-A M.R.S. § 102(4)(A)-(D) (2025), provides for an injured employee’s

average weekly wages (AWW) to be computed in one of four ways, depending

on the circumstances.1 The Administrative Law Judge (ALJ) applied the method

1 The statute provides:

A. “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. For purposes of this paragraph, “reasonable and customary allowance” is

2

set forth in paragraph B, and the Appellate Division affirmed the ALJ’s decision.

Sargent argues that the facts compelled the application of paragraph D, which

is applicable only if the other methods “can not reasonably and fairly be

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 provided under paragraph B.

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 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.

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 purposes 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 by

the same employer during this period to fall within this exclusion.

(2) Notwithstanding subparagraph (1), 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.

D. When the methods set out in paragraph A, B or C of arriving at the average

weekly wages, earnings or salary of the injured employee can not 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.

39-A M.R.S. § 102(4)(A)-(D) (2025).

3

applied.” 39-A M.R.S. § 102(4)(D). We disagree with Sargent and affirm. In

doing so, we explain the parameters of the Board’s discretion in choosing

between these two methods when addressing how to compute the AWW of an

employee who consistently works more than 26 weeks, see 39-A M.R.S.

§ 102(4)(C), but fewer than 200 full working days, see 39-A M.R.S.

§ 102(4)(A)-(B), in the year preceding an injury, and the application of

paragraph B results in a significant difference between past wages earned and

the workers’ compensation award.

I. BACKGROUND

[¶2] Lorri Bosse has worked as a truck driver for many years. 2 From

2000 to 2009, she was self-employed. Throughout this period, Bosse drove

trucks year-round, and during the busy season, from April to early December,

she worked eighty to one hundred hours per week.

[¶3] From 2009 to 2011, she worked as a truck driver for Gendron &

Gendron, a construction firm. Gendron & Gendron laid off Bosse during the

winter months each year.

2 We set forth the factual findings of the ALJ. See 39-A M.R.S. § 318 (2025) (“The administrative

law judge’s decision, in the absence of fraud, on all questions of fact is final . . . .”); Doucette v.

Hallsmith/Sysco Food Servs., Inc., 2011 ME 68, ¶ 21, 21 A.3d 99 (“[O]ur appellate review of workers’

compensation cases is limited to errors of law . . . .”).

4

[¶4] Bosse left Gendron & Gendron in 2011 and went to work as a truck

driver for Sargent, where she drove primarily dump trucks and often worked

fifty to seventy hours per week. Sargent also laid off Bosse during the winter

months and rehired her each spring. Not all truck drivers were laid off at

Sargent during the winter; layoffs were based on seniority and performance

reviews. Bosse did not choose to be laid off and would have worked year-round

had Sargent permitted her to do so.

[¶5] In 2011, Bosse experienced low back pain and missed some time

from work. In 2015, she began experiencing hip pain. She was taken out of

work in October 2015 for back and hip pain.3 In November 2015, Bosse filed a

petition for award of workers’ compensation benefits alleging a gradual work

injury arising out of her work for Sargent. She filed an amended petition in

April 2016. She identified her injury as occurring on August 4, 2015. Bosse

worked thirty out of the fifty-two weeks preceding her injury.

[¶6] Following an evidentiary hearing, an ALJ (Goodnough, ALJ) granted

Bosse’s petition in January 2018, 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

3 A left hip replacement in 2016 alleviated Bosse’s hip symptoms, but she continued to experience

low-back pain.

5

calculating Bosse’s AWW, the ALJ applied paragraph B rather than the fallback

provision, paragraph D, as Sargent requested. Sargent filed a motion for further

findings of fact and conclusions of law, and the ALJ issued an amended decision

but did not alter his conclusions.

[¶7] Sargent appealed to the Appellate Division, which, inter alia,

remanded for “a determination of whether [method B] was the appropriate

method to use to calculate the [AWW]” because it “f[ound] no competent

evidence to support the ALJ’s factual finding that Ms. Bosse’s employment

immediately prior to her employment with Sargent was year-round.” 4

See Bosse v. Sargent Corp., Me. W.C.B. No. 21-12, ¶¶ 6, 19 (App. Div. 2021).

[¶8] After a hearing in June 2022 where the ALJ (Rooks, ALJ) heard

additional testimony on the AWW issue, the ALJ issued a decision in February

2023 in which she struck the factual finding that Bosse had worked year-round

at Gendron & Gendron but again calculated Bosse’s AWW pursuant to

paragraph B. Sargent again filed a motion for further findings of fact and

conclusions of law, which the ALJ denied.

4 The Appellate Division stated that “undisputed testimony at the hearing demonstrate[d] that

Ms. Bosse was subject to seasonal winter layoffs during the two years she worked at Gendron &

Gendron, from 2009 to 2011, immediately before going to work for Sargent.” Bosse v. Sargent Corp.,

Me. W.C.B. No. 21-12, ¶ 11 (App. Div. 2021). The Appellate Division added that there was “no reason

to doubt that Ms. Bosse had worked consistently year-round prior to starting her employment at

Gendron & Gendron in 2009.” Id.

6

[¶9] Sargent appealed a second time to the Appellate Division, which

issued a decision in July 2024. See Bosse v. Sargent Corp., Me. W.C.B. No. 24-10,

¶ 5 (App. Div. 2024). The Appellate Division affirmed the ALJ’s decision,

including the determination that paragraph B could fairly and reasonably be

applied to calculate Bosse’s AWW. Id. ¶¶ 18-20; see 39-A M.R.S. § 102(4)(B),

(D). The Appellate Division rejected Sargent’s contentions that (as paraphrased

by the Appellate Division) “the AWW as calculated under paragraph B is unduly

inflated and does not reflect Ms. Bosse’s future ability to earn” and that “the ALJ

applied an incorrect legal standard when determining that it was not ‘per se

unreasonable’ to apply paragraph B in the circumstances.”5 Id. ¶ 16.

[¶10] Sargent timely filed a notice of appeal and, soon after, a petition for

appellate review, which we granted in January 2025. See 39-A M.R.S. § 322(1),

(3) (2025); M.R. App. P. 23(a), (b)(2).

5 Sargent points out that Bosse’s AWW calculated pursuant to paragraph B translates to an annual

award greater than her actual past wages while working for Sargent. In the twelve months prior to

her injury, Bosse earned $34,535.41. These earnings are representative of Bosse’s annual income

while employed at Sargent. In 2011, she earned $21,997.62; in 2012, she earned $26,158.78; in 2013,

she earned $33,201.44; in 2014, she earned $31,299.65; and in 2015, she earned $32,144.59. The

undisturbed conclusion of the first ALJ (Goodnough, ALJ) who considered this case was that Bosse’s

AWW, calculated pursuant to paragraph B, is $1,157.35, which translates to an annual award of

$60,182.20. See 39-A M.R.S. § 102(4)(B).

7

II. DISCUSSION

[¶11] The ALJ’s findings of fact reflect, and the parties acknowledge, that

neither paragraph A nor paragraph C applies. See 39-A M.R.S. § 102(4)(A), (C).

Paragraph D is a “fallback provision” applicable when the methods prescribed

by paragraphs A, B, and C cannot “reasonably and fairly be applied.” Alexander

v. Portland Nat. Gas, 2001 ME 129, ¶ 10, 778 A.2d 343; 39-A M.R.S. § 102(4)(D).6

The question presented, therefore, is whether it was fair and reasonable to

apply paragraph B, which is applicable “to employees who worked less than

200 days in the year preceding the injury, or whose earnings during that year

have varied from week to week,” or whether the facts compel the resort to

fallback paragraph D. Id. ¶ 9; see 39-A M.R.S. § 102(4)(A)-(B), (D).

A. Standard of Review: If we determine that the statutory text is

ambiguous after examining its purpose and structure, we defer to

the Board’s interpretation so long as it is reasonable in light of the

statute’s legislative history; but we give no deference to the Board’s

interpretation of our precedent.

[¶12] As noted above, we accept the ALJ’s findings of fact as final. See

supra ¶ 2 n.2. As to questions of law:

See also Bossie v. Sch. Admin. Dist. No. 24, 1997 ME 233, ¶ 3, 706 A.2d 578 (“The selection of the

6

proper method for determining the [AWW] proceeds sequentially through four alternative

provisions outlined in [39-A M.R.S. § 102(4)(A)-(D)].”); Frank v. Manpower Temp. Servs., 687 A.2d

623, 625 (Me. 1996) (stating that “[w]hen Paragraphs A, B or C are not appropriate, the [AWW] is to

be calculated pursuant to Paragraph D” and that “the methods of computing the [AWW] described in

Paragraphs A, B and C . . . are to be applied in the order stated”).

8

We review decisions of the Appellate Division according to

established principles of administrative law . . . . We afford

appropriate deference to the Appellate Division’s reasonable

interpretation of the workers’ compensation statute and will

uphold the Appellate Division’s interpretation unless the plain

language of the statute and its legislative history compel a contrary

result. In interpreting the Workers’ Compensation Act, we look to

the plain meaning of the statutory language, and construe that

language to avoid absurd, illogical, or inconsistent results. The Act

must be construed neutrally so as not to favor either the employee

or the employer.

Although we afford appropriate deference to the Appellate

Division’s reasonable interpretation of the workers’ compensation

statute, when the ultimate issue is the proper interpretation of

judicial precedent, we are not obligated to defer to the Appellate

Division’s interpretation of that precedent. Accordingly, we

interpret judicial precedent de novo.

Michaud v. Caribou Ford-Mercury, Inc., 2024 ME 74, ¶¶ 12-13, 327 A.3d 38

(citations and quotation marks omitted).7 The ultimate goal is to give effect to

7 We have consistently stated that we defer to the Board’s reasonable interpretation of the

Workers’ Compensation Act “according to established principles of administrative law.” E.g., Bailey

v. City of Lewiston, 2017 ME 160, ¶ 9, 168 A.3d 762. Under those established principles, we do not

defer to an interpretation of an administrative body unless and until we have determined that the

statutory language is ambiguous and we have first attempted unsuccessfully to resolve that

ambiguity by looking to the statute’s purpose and structure; in addition, the administrative body’s

statutory interpretation must be reasonable in light of the statute’s legislative history. See Guilford

Transp. Indus. v. Pub. Utils. Comm’n, 2000 ME 31, ¶ 11, 746 A.2d 910 (“If the statute is plain, we give

effect to the unambiguous intent of the Legislature. If the statute is ambiguous, however, we review

whether the agency’s construction is reasonable.” (citations omitted)); Cent. Maine Power Co. v. Pub.

Utils. Comm’n, 436 A.2d 880, 885 (Me. 1981) (stating that deference to the Public Utilities

Commission’s statutory interpretation “must yield to the fundamental approach of determining the

legislative intent, particularly as it is manifest in the language of the statute itself”); State v. York Utils.

Co., 142 Me. 40, 43-44, 45 A.2d 634, 635-36 (1946) (holding that an agency’s longstanding

interpretation of a statute cannot overcome the clear meaning of that statute); Allied Res., Inc. v. Dep’t

of Pub. Safety, 2010 ME 64, ¶ 21, 999 A.2d 940 (“To determine the reasonableness of an agency’s

interpretation, we examine the legislative history as well as the context of the whole statutory

scheme of which the section at issue forms a part, so that a harmonious result, presumably the intent

9

the Legislature’s intent. See Jordan v. Sears, Roebuck & Co., 651 A.2d 358, 360

(Me. 1994).

B. The text, purpose, structure, and legislative history of section 102(4)

do not clearly establish when paragraph B cannot “reasonably and

fairly be applied,” but they indicate that exceptional circumstances

must be present to justify the application of fallback paragraph D.

[¶13] The test set forth in the statutory text as to when to resort to

fallback method D is whether the application of paragraphs A, B, or C would be

unreasonable and unfair. See 39-A M.R.S. § 102(4)(D) (stating that paragraph D

applies “[w]hen the methods set out in paragraph A, B or C of arriving at the

[AWW], earnings or salary of the injured employee can not reasonably and

fairly be applied”). To avoid constitutional concerns, we must give these terms

sufficient specificity so as to avoid inconsistent application by the Board. See

Uliano v. Bd. of Envtl. Prot., 2009 ME 89, ¶ 15, 977 A.2d 400 (“[L]egislation

delegating discretionary authority to an administrative agency is

unconstitutional if it fails to contain standards sufficient to guide

of the Legislature, may be achieved.” (quotation marks omitted)); State v. Ray, 1999 ME 167, ¶ 7, 741

A.2d 455 (stating that undefined statutory terms must be “given their everyday meaning and that

meaning must be consistent with the overall statutory context and must be construed in the light of

the subject matter, the purpose of the statute and the consequences of a particular interpretation”

(citation and quotation marks omitted)); Jordan v. Sears, Roebuck & Co., 651 A.2d 358, 360 (Me. 1994)

(stating that we construe statutory language in light of the whole statutory scheme, and if the

language remains ambiguous, we “examine other indicia of legislative intent,” including legislative

history, while affording the Board’s interpretation of the Workers’ Compensation Act “great

deference” (quotation marks omitted)).

10

administrative action.” (quotation marks omitted)); Anderson v. Town of

Durham, 2006 ME 39, ¶ 19, 895 A.2d 944 (reciting “the basic principle of

statutory construction that this Court is bound to avoid an unconstitutional

construction of a statute if a reasonable interpretation of the statute would

satisfy constitutional requirements” (quotation marks omitted)).

[¶14] We have stated that the purpose of the AWW calculation as defined

in section 102(4) is to estimate what an injured worker could earn but for the

injury.8 The text and structure of the statute also indicate that paragraph B is

the appropriate method for calculating the AWW of an employee who, like

Bosse, worked more than 26 weeks, see 39-A M.R.S. § 102(4)(C), but fewer than

200 days, see 39-A M.R.S. § 102(4)(A)-(B), in the year before her injury.9 Hence,

8See Alexander v. Portland Nat. Gas, 2001 ME 129, ¶ 8, 778 A.2d 343 (“The average weekly wage

is intended to provide a fair and reasonable estimate of what the employee in question would have

been able to earn in the labor market in the absence of a work-injury.”); Frank, 687 A.2d at 625 (“The

purpose of the [AWW] calculation is to arrive at an estimate of the employee’s future earning capacity

as fairly as possible.” (quotation marks omitted)); Landry v. Bates Fabrics, Inc., 389 A.2d 311, 313

(Me. 1978) (explaining that Maine’s statutory workers’ compensation scheme “provides a method of

predicting what the employee would continue to earn had no injury occurred” and that “[i]t is the

ability to work at available full-time employment in the future that should be compensated”).

9 Subsection 102(4) establishes clear, specific circumstances for the application of each

paragraph. See 39-A M.R.S. § 102(4)(A)-(C). Paragraph A applies when an employee has worked for

the employer for at least 200 full working days during the year immediately preceding the injury,

39-A M.R.S. § 102(4)(A)-(B); paragraph B applies when the employee’s wages during the previous

year “have generally varied from week to week” and “the employment or occupation did not continue

pursuant to paragraph A for 200 full working days,” 39-A M.R.S. § 102(4)(A)-(B); and paragraph C

applies to “seasonal worker[s],” defined to exclude “any employee who is customarily employed, full

time or part time, for more than 26 weeks in a calendar year,” 39-A M.R.S. § 102(4)(C). Most

significantly, the Maine Legislature’s unique treatment of seasonal workers suggests that it

considered employment lasting for longer than twenty-six weeks in the calendar year preceding a

11

paragraph B must be applied except where exceptional circumstances indicate

that doing so would produce an unfair, inaccurate, or unrealistic estimate of the

injured worker’s future earning capacity.

C. According to our precedent, several factors are relevant when

determining whether to deviate from paragraph B, including

(1) whether the worker’s history of less-than-full-time employment

was voluntary and (2) whether the AWW computation under

paragraph B would be greatly inflated compared to actual past

earnings.

[¶15] We have previously identified multiple factors relevant to the

determination of whether an injured employee’s AWW cannot be calculated

pursuant to paragraph B because its application would yield an unreasonable

or unfair estimate of that worker’s earning capacity. In Bossie v. Sch. Admin.

Dist. No. 24, 1997 ME 233, ¶ 6, 706 A.2d 578, we suggested, in dictum, that

paragraph D “might have been the best method of determining” the worker’s

worker’s injury sufficiently addressed by paragraphs A and B and undeserving of specific treatment

beyond the methods stated in those paragraphs. See 39-A M.R.S. § 102(4)(A)-(C). (The current

definition of “seasonal worker” contained in paragraph C was added to Maine’s workers’

compensation statute in 1991 and became effective on January 1, 1993. See P.L. 1991, ch. 885, § A-8

(effective Jan. 1, 1993) (codified at 39-A M.R.S. § 102(4)(C) (2025)).)

Sargent appears to be advocating for what the ALJ described as “a back-door seasonal worker

calculation (i.e., division of all wages by 52),” even though Sargent concedes that Bosse is not a

seasonal worker because she worked more than twenty-six weeks in the year preceding her injury.

See 39-A M.R.S. § 102(4)(C). We agree with the ALJ’s conclusion on this point: “If the legislature

wanted to treat in a special fashion, as a matter of course, those workers who are employed greater

than 26, but less than 52, weeks in the year prior to injury, it could certainly have done so,” but

instead, “[a] line was apparently drawn at 26 weeks, and that is the current benchmark[.]”

12

AWW in that case.10 There, the injured worker was employed as a school cook

for twenty-four years, and she worked during the school year, which lasted

thirty-six weeks, from August to June. Id. ¶ 2. The employer argued for the

application of paragraph D, claiming that the application of paragraph B “would

lead to an inflated” AWW. Id. ¶ 4. While, as noted above, the statutory purpose

is to identify an injured worker’s future earning capacity, we stated in Bossie

that the AWW determination “is not based solely on what that employee is

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.” Id. ¶ 5.

[¶16] Subsequently, in Alexander, the Board had calculated the worker’s

AWW pursuant to paragraph B, and the employer argued on appeal that

paragraph B could not be fairly applied because the application of paragraph B

resulted in a “greatly inflated” AWW.11 2001 ME 129, ¶ 1, 778 A.2d 343. We

vacated the Board’s ruling and remanded for consideration of paragraph D. Id.

10 We nevertheless upheld the application of paragraph B because the employer had not provided

evidence of the earnings of comparable employees, as expressly required by paragraph D. Bossie,

1997 ME 233, ¶¶ 4-6, 706 A.2d 578; see 39-A M.R.S. § 102(4)(D).

11 See Alexander, 2001 ME 129, ¶ 1, 778 A.2d 343 (explaining that the employer contended that

paragraph B could not be fairly applied “because, in the years immediately preceding the injury,

Alexander had earned an average of $19,000 annually, and the application of paragraph B result[ed]

in a greatly inflated average weekly wage reflecting an annual income exceeding $100,000.”).

13

In so ruling, we stated that paragraph D could apply when the application of

paragraph B results in an unfairly inflated AWW compared to past actual wages

where those wages reflected “a pattern of discrete, short-term employments.”

Id. ¶¶ 1, 12. We explained:

It is generally accepted that, in order to fairly and accurately

determine the average weekly wage in cases of consistently

intermittent employment, the factfinder should consider whether

the employee’s part-time employment is a matter of choice or due

to a temporary industry-wide work slowdown. In some cases,

when the employee is willing to work full-time, but the employee’s

recent work history is consistently intermittent due to a general

economic slowdown, it may not be fair to assume that the work

slowdown will continue into the indefinite future. In such

situations, it may be fairer to treat the employee as a full-time

employee for purposes of calculating the average weekly wage.

When the employee voluntarily limits employment to part-time

work, however, it is often appropriate to look to the fall-back

method to determine the average weekly wage.

Id. ¶ 13 (citations omitted).

[¶17] Thus, in both Bossie and Alexander, we identified two

circumstances that could justify consideration of paragraph D: (1) the

employee had not worked full-time in the past by choice12 and (2) the

12 In Alexander, 2001 ME 129, ¶¶ 12-13, 778 A.2d 343, we concluded that “Alexander’s

relationship with the labor market, at least since 1995, consisted of a series of discrete, short-term

employments which [could] best be described as ‘consistently intermittent’” and that the application

of paragraph B could result in an inflated AWW. This conclusion was supported by the following

facts:

Alexander worked on pipeline construction projects for over thirty years. He

became a side-boom operator in 1975, and for 29 years, he had worked for a single

14

application of paragraph B resulted in an annual award that was greatly inflated

compared to the worker’s actual past wages. Importantly, both circumstances

were identified in the context of pursuing the statutory goal of calculating an

AWW that realistically reflected the employee’s future earning capacity; the

statute does not focus on actual earnings except when they are relevant to

determining future earning capacity.13

employer. That employer provide[d] pipeline workers and boom operators to

pipeline projects around the United States and the world. Alexander testified that,

prior to 1995, he worked year-round, taking one to three weeks off in between

projects. In 1995, Alexander had a “falling out” with his employer and voluntarily

reduced his workload. He testified that “[i]n 1995, Uncle Sam took a lot more of my

money in taxes than I appreciated, and I just decided that my kids were grown and I

didn’t need to make that much money, and I just kind of took a break for those two

years.”

Id. ¶ 2.

13 Other jurisdictions considering cases involving a difference between an injured employee’s past

earnings and the employee’s earning capacity have similarly concluded that their workers’

compensation schemes focus on the latter. E.g., Carter v. Ocean Accident & Guarantee Corp., 11 S.E.2d

16, 18 (Ga. 1940) (“The courts are not concerned with whether the employee receives more

compensation than his wages total, nor whether regular employees or temporary employees are

given an advantage over the other, so long as the [workmen’s compensation] statute is given its true

and fair meaning. These are matters for legislative concern. . . . The one high aim constituting the

foundation of this law is compensation for an injured employee in proportion to his loss on account

of the injury. That loss is deprivation of future earnings, and is measured by his proved earning

capacity.”); Goytia v. Workmen’s Comp. Appeals Bd., 493 P.2d 864, 866 (Cal. 1972) (“Since the ‘earning

capacity’ concept, as created by the [state workers’ compensation statute], was to be utilized to

estimate the monetary effects of a disability on future earnings, ‘earning capacity’ c[an] not be locked

into a straight-jacket of the actual earnings of the worker at the date of injury, but instead the term

contemplates the employee’s general over-all capability and productivity . . . .” (citation modified));

Lubbock Indep. Sch. Dist. v. Bradley, 579 S.W.2d 78, 81 (Tex. Civ. App. 1979) (“The law seeks to provide

compensation not merely for loss of earnings, but for loss of earning capacity, at a wage rate based

on the employee’s capacity to earn when employed on a full-time basis.” (citations omitted));

Furrowh v. Abacus Corp., 559 A.2d 1258, 1260 (Del. 1989) (“[T]his Court [has] found that [the state’s

workers’ compensation statute] should be read as requiring that a part-time employee who was

capable of working full time should be compensated based on his loss of earning capacity (rather

than on his mere loss of part-time earnings).”)

15

D. The Board reasonably applied relevant factors in identifying Bosse’s

realistic future earning capacity.

[¶18] As noted above, the ALJ concluded that the difference between

Bosse’s actual earnings and the AWW calculated by applying paragraph B was

not so large that it “per se” compelled the application of paragraph D. The ALJ

also considered that Bosse’s annual lay-off at Sargent was not a matter of

choice. Bosse testified that she “hated” being laid off and that she would have

preferred to work year-round. In addition, other truck drivers employed by

Sargent did work full-time during the winter months, not only driving the same

type of truck that Bosse did but sometimes even driving her specific truck.

Lay-offs were based on seniority and performance reviews, and Bosse was a

good and hard worker. Thus, there was a realistic possibility that Bosse would

have been employed by Sargent year-round as a truck-driver in the future if not

for her injury.

[¶19] Moreover, Bosse’s injury affects her earning capacity year-round,

not just during the months she has regularly worked for Sargent. The record

demonstrates that in the past she has received additional income during layoff

periods by working elsewhere or collecting unemployment benefits. These

facts, viewed collectively, support the conclusion that, despite a significant

disparity between Bosse’s actual wages from Sargent and the AWW

16

computation under paragraph B, it was nonetheless fair and reasonable to

apply paragraph B to determine Bosse’s future year-round earning capacity.

[¶20] Notably, Bosse’s situation is different from, for example, that of a

teacher, for whom the time spent not working, i.e., the summer months, is

inherent to the nature of the employment. See Bossie, 1997 ME 233, ¶ 5, 706

A.2d 578 (discussing the example of a teacher who is paid each month for nine

months of the year and explaining that “there is no reason to calculate [the

teacher’s] earning capacity on the unrealistic basis” of the same monthly salary

for twelve months, adding that “the purpose of the wage calculation is not to

arrive at some theoretical concept of loss of earning capacity” but “to make a

realistic judgment on what the claimant’s future loss is in the light of all the

factors that are known” (quoting A. Larson & Lex K. Larson, The Law of

Workmen’s Compensation §§ 60.21(c), 60.22(a) (1993))).

[¶21] In sum, the test to determine whether to apply paragraph D instead

of paragraph B involves consideration of all factors relevant to a realistic

determination of future earning capacity.14 These factors may include, but are

14 As one treatise explains:

The entire objective of wage calculation is to arrive at a fair approximation of [a]

claimant’s probable future earning capacity. This worker’s disability reaches into the

future, not the past; the loss as a result of injury must be thought of in terms of its

impact on probable future earnings, perhaps for the rest of the worker’s life. This

may sound like belaboring the obvious; but unless the elementary guiding principle

17

not limited to, the size of the difference between an employee’s actual past

wages and the annual award as calculated pursuant to paragraph B; whether

an annual lay-off or other period of unemployment was voluntary; whether

working fewer than fifty-two weeks each year is a characteristic of the

occupation; and whether there was a realistic possibility that the employee’s

future wages would resemble the AWW calculated under paragraph B.

[¶22] While a large difference between actual past earnings and the

AWW as calculated pursuant to paragraph B is one relevant consideration in

determining whether paragraph B can be reasonably and fairly applied, see

39-A M.R.S. § 102(4)(D), this factor is only a starting point; the cause of that

difference is of equal relevance in determining the worker’s realistic future

earning capacity. Given the governing test and the facts presented here,15 the

Board’s decision to apply paragraph B to calculate Bosse’s AWW did not

constitute legal error and was not arbitrary or capricious. See Somers v. S.D.

is kept constantly in mind while dealing with wage calculation, there may be a

temptation to lapse into the fallacy of supposing that compensation theory is

necessarily satisfied when a mechanical representation of this claimant’s own

earnings in some arbitrary past period has been used as a wage basis.

1 A Larson & Thomas A. Robinson, Larson’s Workers’ Compensation Law § 93.01(1)(g) (2025)

(footnote omitted).

15 Sargent bore the burden to provide evidence to support application of paragraph D. See Bossie,

1997 ME 233, ¶ 6, 706 A.2d 578.

18

Warren Co., 2020 ME 137, ¶ 14, 242 A.3d 1091 (noting that we will vacate a

workers’ compensation decision only “where that decision violates the

Constitution or statutes; exceeds the agency’s authority; is procedurally

unlawful; is arbitrary or capricious; constitutes an abuse of discretion; or is

affected by bias or an error of law” (quotation marks omitted)).

III. CONCLUSION

[¶23] 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,

paragraph B of section 102(4) generally applies to compute the worker’s

average weekly wage. See 39-A M.R.S. § 102(4)(A)-(C). If the application of

paragraph B results in a large difference between the worker’s AWW and actual

past wages, and the employer argues that given this difference the application

of paragraph B is unreasonable and unfair and the ALJ should instead calculate

the worker’s AWW pursuant to paragraph D, then the ALJ should evaluate the

reasons for that difference in order to further the overarching goal of

identifying the injured worker’s realistic future earning capacity. These factors

include, but are not limited to, whether the worker’s history of not working

full-time was voluntary; whether not working all the months of the year was

characteristic of the employment; and whether working full-time in the future

19

was a realistic possibility. The Board applied the correct test here, properly

examining these factors.

The entry is:

Judgment affirmed.

Robert W. Bower, Jr., Esq., and Christopher M. Schlundt, Esq. (orally), Norman

Hanson DeTroy, LLC, Portland, for appellants Sargent Corporation and Cross

Insurance TPA, Inc.

James J. MacAdam, Esq. (orally), MacAdam Law Offices, P.A. Freeport, for

appellee Lorri Bosse

Workers’ Compensation Board Appellate Division docket number 23-12

FOR CLERK REFERENCE ONLY