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Coulombe v. Anthem Blue Cross/Blue Shield of Maine11/1/2002
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II. DISCUSSION
Partial incapacity benefits are calculated as “80% of the difference between the injured employee's after-tax average weekly wage before the personal injury and the after-tax average weekly wage that the injured employee is able to earn after the injury, . . .” 39-A M.R.S.A. § 213(1) (2001). The Board has published weekly benefit tables for the calculation of 80% of after-tax wages.
The workers' compensation law addresses calculation of fringe benefits for pre-injury earnings, but it does not address calculation of fringe benefits for post-injury earnings. This creates an ambiguity in the application of section 213 which directs calculation of partial incapacity benefits based on the difference between similar pre-injury and post-injury earnings figures.
Title 39-A M.R.S.A. § 102(4)(H) limits the inclusion of non-continuing fringe benefits in calculation of pre-injury earnings “to the extent that” the employee's benefits do not exceed two-thirds of the state average weekly wage at the time of the injury. We have interpreted the phrase “to the extent that” in section 102(4)(H) to mean that fringe benefits must be included up to the amount that is necessary to reach two-thirds of the state average weekly wage at the time of the injury. See Hincks v. Robert Mitchell Co., 1999 ME 172, 12, 740 A.2d 992, 996; O'Neal v. City of Augusta, 1998 ME 48A, 4-6, 706 A.2d 1042, 1043-44.
In other words, if the employee's pre-injury fringe benefits are $200 a week, but the inclusion of only $100 more a week will put the employee's benefit level at two-thirds of the state average weekly wage at the time of the injury, then the Board is required to add only $100 to the employee's average weekly wage to bring the employee's benefit level up to two-thirds of the state average weekly wage at the time of the injury.
Board Rule chapter 1, § 5(3)(A) contains a limitation which is similar to the language of section 102(4)(H), limiting the inclusion of fringe benefits “to the same extent” that the fringe benefits are included in the pre-injury wage. Me. W.C.B. Rule ch. 1, § 5(3)(A).
Both parties to this case contend that fringe benefits should be included in calculation of post-injury wages, they only dispute proper application of the “to the same extent” language.
Anthem concedes that the statute is silent with respect to post-injury benefits, but contends that post-injury fringe benefits must be calculated in the same way that pre-injury fringe benefits are calculated, i.e., to their full amount. Anthem also contends that, because the Board has promulgated rules defining what is included in a “fringe or other benefit,” the phrase “to the same extent that” is merely intended to signify that these Board rules defining “fringe and other benefits” apply to both pre-injury and post-injury wages. However, the Board Rule provides: “The fringe benefit package of any subsequent employers must be included in the computation of the employee's post-injury earnings to the same extent that it is included in the employee's pre-injury average weekly wage.” Me. W.C.B. Rule ch. 1, § 5(3)(A) (emphasis added).
The original reason for excluding fringe benefits from the average weekly wage was the concept that fringe benefits were something other than money in the employee's pay. Accordingly, there was some fairness in not holding the employer to an average weekly wage that includes things other than ordinary pay. As Professor Larson states in his treatise, the average weekly wage means “Ôwages' that the worker lives on and not miscellaneous Ôvalues' that may or may not someday have a value to him or her depending on
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