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MAINE SUPREME JUDICIAL COURT                                              Reporter of Decisions

Decision:          2002 ME 163

Docket:            WCB-02-189

Argued:             October 10, 2002

Decided:           November 1, 2002

Panel:      SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

ALICE J. COULOMBE

 v.

ANTHEM BLUE CROSS/BLUE SHIELD OF MAINE, INC. et al.

ALEXANDER, J.

            [¶1]  Anthem Blue Cross/Blue Shield of Maine, Inc., appeals from a decision of a hearing officer of the Workers' Compensation Board granting the employee's petition for award and awarding partial incapacity benefits.  Anthem challenges the hearing officer's interpretation of Board Rule chapter 1, § 5(3)(A), which permits the inclusion of fringe benefits in the employee's post-injury wages “to the same extent” that fringe benefits are included in the pre-injury wages.  Me. W.C.B Rule ch.1, § 5(3)(A).  Because the Board Rule represents a clarification of an ambiguity in the governing statute and does not exceed the scope of the Board's rulemaking authority, we affirm.

I.  CASE HISTORY

            [¶2]  Alice J. Coulombe suffered a work-related injury in May 1999, while employed by Blue Cross/Blue Shield of Maine.[1]  She returned to work in August 2000.  Coulombe found post-injury work with a different employer, Maine Medical Center for Cancer (MMCC), in October 2000.  She left that employment in November 2000, for family medical care reasons, returning to work for MMCC in June 2001.

            [¶3] Coulombe filed a petition for award of partial incapacity benefits in August 2001.  The parties agreed that Coulombe's pre-injury average weekly wage was $571.00 with an additional $121.97 in fringe benefits.  The parties also agreed that her current weekly earnings at MMCC are $460 with an additional $188.81 in fringe benefits.  The hearing officer granted Coulombe's petition for partial incapacity benefits.

            [¶4]  The law, 39-A M.R.S.A. § 102(4)(H) (2001), requires the inclusion of noncontinuing fringe benefits in the calculation of the employee's pre-injury wage in many circumstances. [2]   See Beaulieu v. Me. Med. Ctr., 675 A.2d 110, 111 (Me. 1996).  The law does not directly address calculation of fringe benefits in computing the post-injury average weekly wage.  Board Rule chapter 1, § 5(3)(A), addresses calculation of fringe benefits in the post-injury average weekly wage as follows: “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). 

            [¶5]  Although Coulombe had higher fringe benefits in her post-injury employment than in her pre-injury employment, the hearing officer interpreted Rule 5(3)(A) to mean that because the employee had $121.97 in pre-injury fringe benefits, Coulombe's fringe benefits in her post-injury employment would also be calculated at $121.97 a week in determining her entitlement to partial incapacity benefits.

            [¶6]  The hearing officer computed Coulombe's pre-injury earnings by adding Coulombe's pre-injury wage and her fringe benefits ($571 + $121.97 = $692.97).  Using the Board's Weekly Benefit Table, 80% of the after-tax average weekly pre-injury wage is $450.02.[3]

            [¶7]  Adding the current post-injury earnings and fringe benefits results in a post-injury wage of $581.97 ($460 + $121.97).  Using the Weekly Benefit Table, 80% of the after-tax weekly post-injury wage is $387.34.  Calculating the benefit for this period results in a weekly benefit of $62.68 ($450.02 - $387.34).  If all of Coulombe's post-injury employment fringe benefits were included in the calculation, her weekly benefit would be reduced to approximately $24.

            [¶8]  Anthem filed a motion for further findings of fact.  The hearing officer issued further findings of fact, but did not alter the calculation.  We granted Anthem's petition for appellate review pursuant to 39-A M.R.S.A. § 322 (2001) and M.R. App. P. 23.

II.  DISCUSSION

            [¶9]  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.

            [¶10]  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.

            [¶11] 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.

            [¶12] 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.

            [¶13]  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). 

            [¶14]  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 “