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

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 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). 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.

[¶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

[¶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.

[¶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).

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 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 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”).

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

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 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)). 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 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”).

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[.]”

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.

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

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.

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 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

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 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).

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 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