The Kentucky Court of Appeals sent a not so subtle message to any volunteer firefighter within the state who has been laid off from his or her regular employment during the current “Great Recession”: “Stop Volunteering!” Adding what amounts to insult to injury, the court recently affirmed a decision by the Kentucky Workers’ Compensation Board that had denied permanent disability benefits to a firefighter because he had no “regular employment” at the time of the injury and, therefore, no average weekly wages from which to compute his award [see Justice v. Kimper Volunteer Fire Dep’t, 2012 Ky. App. LEXIS 171 (Sept. 14, 2012)].
Justice (the firefighter’s name was “Justice) responded to an emergency in his capacity as a volunteer firefighter. As he drove to the scene, he was struck by another vehicle and sustained injuries to his back, neck, and shoulder. He had worked as a mechanic until approximately two months before the injury. Justice contended that his ”regular employment“ was as a mechanic in his prior job with a trucking company and that his AWW should be determined to be his wage while he was working there. In the alternative, Justice argued that his AWW could be calculated ”in reverse” by taking the minimum temporary total disability rate available for the year 2009 and determining the AWW that yielded such a rate.
A law judge, stating that he was “bound by the plain language” of KRS 342.140(3), rejected Justice’s arguments and concluded that Justice had no “regular employment” and no AWW at the time of the subject accident. The judge ruled that Justice was, therefore, not entitled to an award of permanent partial disability income benefits under KRS 342.730. The Board affirmed in relevant part.
The appellate court indicated the case of Highland Heights Volunteer Fire v. Ellis, 160 S.W.3d 768 (Ky. 2005) was dispositive of the issue raised by Justice. Ellis involved a stock-broker who was injured while serving in a capacity as a volunteer fire fighter. The Kentucky Supreme Court determined volunteer firefighters, police and emergency personnel were covered employees pursuant to KRS 342.640(3) and that income benefits were to be based on the average weekly wage in their regular employment. In Ellis’ case, the average weekly wage was based on his current employment as a stockbroker.
The court of appeals observed that language in Ellis indicating that the income benefit of volunteer personnel who had no regular employment would be zero was arguably dicta since the claimant in Ellis actually had regular paid employment at the time of injury. The court added, however, that the position was nonetheless entirely consistent with the language of KRS 342.140(3).2 and that in as much as the position was set forth by the state’s highest court, it necessarily carried considerable weight – dicta or no.
Practitioners should be aware that there is certainly precedent to the contrary in other states. See Brown v. Walnut Cove Volunteer Fire Dep’t, 71 N.C. App. 409, 322 S.E.2d 443 (1984) , aff’d, 317 N.C. 147, 343 S.E.2d 523 (1986), where the injured volunteer firefighter had been laid off from his mechanic’s job for almost a year, except for sporadic work for a few weeks. However, he was subject to recall under his union contract. The court held that it was not error to calculate his wages based upon the mechanic’s job, because this represented Brown’s primary source of income, to which he expected to return.