Gushee v. Point Sebago
Maine Employers' Mutual Insurance Company
March 25, 2013
CategoriesAverage Weekly Wage
AWW §102 (4)(B)
Summary from the Troubh Heisler Attorneys
Gushee was a maintenance service technician at Point Sebago, a lakeside resort community in Casco, from 2007 to 2010. Although he worked during the winter of 2007 - 2008, Point Sebago laid him off the next 2 winters, so during those last 2 years he worked only 36 weeks each year. In May 2007 he fell off a ladder and injured his neck, and in December 2010 he injured his low back, after which he never returned to work.
Gushee filed petitions, and Hearing Officer Jerome granted them, awarding him ongoing partial benefits. The issue was calculation of the average weekly wage. Although Point Sebago considered Gushee a full-time employee and provided him fringe benefits year round, H.O. Jerome divided Gushee’s earnings by only the weeks he actually worked at a Point Sebago, excluding the remaining 16 weeks he was unemployed and receiving unemployment benefits. Point Sebago appealed, but the Appellate Division upheld the decision.
The appellate panel found that §102 (4) (A) did not apply because Gushee’s wages varied from week to week, and that §102 (4) (C) did not apply because Gushee worked more than 26 weeks per year and therefore was not “seasonal.” Although Point Sebago argued the application of §102 (4) (D) and provided comparable wage statements, the appellate panel found that Gushee's employment was not "consistently intermittent" because he had worked during the first winter. They found that his prior work history, including his work for Point Sebago, did not prove that he had made a conscious choice of part-time work, and they upheld HO Jerome's AWW calculations under §102 (4) (B).