Justice v. Kimper Vol. Fire Dept., No. 2012-CA-000417-WC (Ky.App. 2012)  (to-be-published):  Under KRS 342.140(3), volunteer personnel who have no regular employment at the time of injury are not entitled to an award of income benefits.

David Justice was a volunteer firefighter with the Kimper Volunteer Fire Department. On May 1, 2009, he was injured in a motor vehicle accident while responding to a rescue call. At the time of the accident, Justice was un-employed and was not earning wages, having been laid off from his job as a mechanic in March of 2009.

Workers’ compensation statutes generally do not cover individuals unless they are paid to work under a “contract of hire.” However,  KRS 342.140 (3) provides an exception for volunteer fire, police and emergency personnel and  provides that any income benefits to which they might be entitled “shall be based on the average weekly wage in their regular employment.”

Though not employed at the time of the injury, Justice argued that his wage could be determined by looking back on his wages for the 52 weeks or 12 months preceding the injury as allowed under KRS 342.140(1) and (2) or in finding he was merely entitled to the minimal TTD rate for purposes of calculating benefits in the absence of an actual average weekly wage.

The ALJ, the Workers’ Compensation Board and the Court of Appeals all determined that since Justice was not employed at the time of his injury, an average weekly wage could not  be calculated from “regular employment.” The Court of Appeals, though sympathetic, felt that to “look back” at the 52 weeks or 12 months preceding the injury and compute an average weekly wage as provided for under KRS 342.140(1) and (2),   would require them to read language and meaning into the KRS 342.140(3)  “that simply are not there.”

COMMENT:  This was certainly an inequitable and unfair result given plaintiff was injured while voluntarily placing himself in hazardous conditions. On the one hand, the court was correct in that they are  confined to the statutory language of KRS 342.140(3) ; however, the court could easily have looked at the language and intent of KRS 342.140 as a whole and determined that based on the provisions set forth in KRS 342.140(1) and (2), which allow for arriving at an average weekly wage based on  the wages for the 52 weeks or 12 months prior to the injury, the legislature intended the same rules to apply to the calculation of wages under KRS 342.140 (3).  It will be interesting to see if the Supreme Court agrees if the claimant appeals.

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