# Alexander v. Portland Natural Gas

> Supreme Judicial Court of Maine · August 7, 2001 · 778 A.2d 343

URL: https://www.frixlaw.com/law-library/cases/9713459

## Case

- **Full name:** Steven ALEXANDER v. PORTLAND NATURAL GAS Et Al.
- **Court:** Supreme Judicial Court of Maine
- **Decided:** August 7, 2001
- **Citations:** 778 A.2d 343; 2001 ME 129; 2001 Me. LEXIS 130
- **Precedential status:** Published
- **Opinion:** Dissent by Wathen
- **Judges:** Wathen, Clifford, Rudman, Dana, Saufley, Alexander, Calkins
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9713459

## How later opinions describe it (automated extraction)

- 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 …
- explaining that the AWW “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”

## Opinion text

WATHEN, C.J.,
with whom CLIFFORD, J. and CALKINS, J„ join, dissenting.
[¶ 25] I must respectfully dissent. The Court finds that because Alexander’s relationship with the labor market consisted of a “series of discrete, short-term employments which can best be described as ‘consistently intermittent,’ ” subsection B of 39-A M.R.S.A. § 102(4) may result in an inflated average weekly wage and thus the hearing officer should have applied subsection D. To apply subsection D, however, due regard must be given both to Alexander’s own previous earnings and to “the earnings 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.” 39-A M.R.S.A. § 102(4)(D); St. Pierre v. St. Regis Paper Co., 386 A.2d 714, 719 (Me.1978). As the party asserting application of subsection D, PNG bore the burden to provide evidence of the earnings of comparable employees. See Bossie v. Sch. Admin. Dist. No. 24, 1997 ME 233, ¶ 6 , 706 A.2d 578 . Even if subsection D is the best approach for calculating average weekly wage under these circumstances, I do not agree that PNG carried that burden in this case. Although the parties stipulated to the amount comparable employees earned per week, PNG provided no evidence of the number of weeks per year comparable employees worked. Without that information, the basis for comparison is incomplete and the hearing officer was justified in relying on subsection B.
I would affirm.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9713459. Public record. Not legal advice.