Colleen Farmer v. Walmart, Inc.– The Appellate Division vacates the ALJ’s determination of average weekly wage. In Farmer v. Walmart, Inc., W.C.B. No. 23-20, Farmer had worked part time for Walmart since 2016. She started in the bakery department and moved to the apparel department. In May 2018 she transferred to a part time position in the receiving department, along with a $1.00 per hour raise. Her duties included assisting in remodeling parts of the store and traveling to other stores to assist in remodeling. On 9/16/18 Farmer injured her left foot when part of a wall rolled on it. Walmart accommodated her restrictions until she was terminated February 2019. Walmart then paid voluntary total incapacity benefits until it filed a 21-Day Discontinuance. In issuing a Provisional Order the ALJ calculated her aww to be $349.66 by applying 39-A M.R.S.A. 102(4)(A). This method averaged her earnings, including the lower earnings received prior to her transfer to the receiving department.

Farmer appealed arguing the ALJ erred by finding that her job transfer to the receiving department 18 weeks before her work injury did not qualify as a change in “employment or occupation”, thereby declining to apply the calculation method set forth in sec. 102(4)(B). This would require the ALJ consider only the earnings in her new employment within the receiving department. The Appellate Division vacated this part of the decision, finding that the ALJ read the requirements for determining a change in employment or occupation too narrowly. The panel first reminded us that the methods of calculation of the aww are set forth in paragraphs A through D of sec. 102(4) and must be applied in that order unless they cannot be reasonably or fairly applied. The ALJ concluded there was no change in employment or occupation based on the findings that Farmer continued to work part time, changing from apparel to receiving was not a change in occupation, that she did not assume supervisory responsibility and that a $1.00 per hour increase in pay was not substantial. The Appellate Division found that her change in job duties, requirement to assist in other stores and her pay increase met the legal definition of change in employment or occupation. The panel remanded the case for a redetermination of the average weekly wage.

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Daniel F. Gilligan