Lorri Bosse v. Sargent Corporation

Name

Insurance Company

Cross Insurance TPA

Date Decided

July 10, 2024

Panel Members

Elizabeth Elwin

Evelyn Knopf

Christine Smith

File Size

180 KB

Download

Summary from the Troubh Heisler Attorneys

Bosse v. Sargent Corporation – The Appellate Division affirmed the ALJ’s application of sec. 201(4) when determining the aww when deciding a decision on remand. In Bosse v. Sargent Corporation, Dec. No. 24-10, a prior decision granted the employee’s petition for award alleging a gradual October 2015 back injury where the employee had preexisting back problems. On remand, a new ALJ rejected a finding by the prior ALJ that Bosse worked year round in the years prior to the injury but still found the aww should be determined by the method set forth in 39-A MRSA sec. 102(4)(B)- averaging the earnings by the weeks worked.

On appeal Sargent argued the ALJ erred in finding the employee met her burden of proof under 39-A MRSA sec. 201(4) that her employment contributed to her disability in a significant manner where the ALJ misinterpreted the vague opinions of the Board appointed sec. 312 Independent Medical Examiner. The appellate panel found no error, observing it was incumbent on the ALJ to examine the larger context to construe the intent of the examining physician. Further, it is within the sound purview of the ALJ to choose among medical expert opinions.

Sargent further argued the ALJ erred by failing to rely on comparable employee wages in order to determine the average weekly wage under the “fallback” provision of sec. 102(4)(D). The appellate division rejected the argument that relying on the method of sec. 102(4)(B) artificially inflated the average weekly wage. It observed that sec. 102(4)(D) is often used where an employee voluntarily and consistently chooses intermittent employment, which was not the case here. Bosse was laid off during winters but would have worked if it were available.

Page |