Hackett v. Western Express, Inc., 2011 ME 71

Hackett began working for Western Express as a long‑distance truck driver in March 2008.
He was paid 31 cents per mile, including nine cents per mile designated as per diem for lodging, meals, telephone calls, and showers, shown separately on his pay stub.
Per diem payments were not taxable income and there were no spending restrictions or documentation requirements for the per diem.
In June 2008 Hackett aggravated a pre‑existing low back injury, was taken out of work, and Western Express terminated his employment for reasons unrelated to the injury.
The Workers’ Compensation Board awarded partial incapacity benefits and the dispute focused on whether the per diem should be included in Hackett’s average weekly wage, with the board excluding it as a special expense under 39‑A M.R.S. §102(4)(F) and concluding it was not a fringe benefit under Rule, ch. 1, §5(1).
On appeal the court affirmed the exclusion of the per diem as a special expense and remanded for recalculation of fringe benefits under the Rule.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the nine-cent per-mile per diem is a special expense excluded from average weekly wage.	Hackett argues per diem is not tied to actual expenses and should be wages.	Western Express contends per diem covers special expenses and is excluded.	Yes; per diem is a special expense excluded from wage calculation.
Whether the per diem should be included as a fringe benefit under 39‑A M.R.S. § 102(4)(H).	Hackett asserts it could be fringe benefits.	Western Express argues it is not a fringe benefit.	No; per diem is not a fringe benefit.
Whether fringe benefit calculation requires remand for correct valuation.	Hackett seeks correct fringe benefit value.	Employer agrees remand is appropriate to apply Rule, ch. 1, §5(1).	Remand for recalculation of fringe benefits under Rule, ch. 1, §5(1).

Clukey v. Piscataquis Cnty. Sheriff's Dep't, 696 A.2d 428 (Me. 1997) (military allowances not automatically included in wage under federal statutes; distinction from special expenses)
St. Mary's Regional Med. Ctr. v. Bath Iron Works, 977 A.2d 431 (Me. 2009) (court deference to Board interpretations of Workers' Compensation Act; expertise of Board)