Kentucky Court: No WC Benefits for Unemployed Volunteer Firefighter

A Kentucky appellate court recently ruled that an injured volunteer firefighter is not eligible for permanent disability benefits because he had no “regular employment” — thus no average weekly wages with which to calculate the award.

The ruling, announced last month, affirms the earlier findings from the Kentucky Workers’ Compensation Board and an administrative law judge.

The case involved volunteer firefighter David Justice. On May 1, 2009, he was responding to an emergency rescue call while working as a volunteer firefighter. While driving to the scene of the emergency, he was struck by another car and sustained injuries to his back, neck and shoulder.

Court documents showed that at the time of the accident, Justice was otherwise unemployed and not earning wages after being laid off from his job as a mechanic with Rhino Trucking in March 2009. He was also not being paid for his duties as a volunteer firefighter.

Justice subsequently filed a workers’ compensation claim. The workers’ compensation statutes generally do not cover individuals unless they are paid to work under a “contract of hire.” However, Kentucky provides an exception for volunteer fire, police, and emergency personnel even though their work is considered “gratuitous” or “nearly gratuitous.”

A number of issues were discussed during the workers’ compensation proceedings, but of a particular relevance to this appeal was the Fire Department’s contention that Justice was not entitled to permanent income benefits because he had no average weekly wages from any “regular employment” at the time of the accident.

The Kentucky statute, KRS 342.140(3), sets forth that in the case of volunteer fire, police, or emergency personnel, “income benefits shall be based on the average weekly wage in their regular employment.” The Fire Department argued that since Justice was unemployed and was receiving no wages at the time of his injuries, he was not engaged in “regular employment” and was consequently not entitled to permanent income benefits.

“After reviewing the record and the parties’ briefs, we believe that the opinion of the Board correctly and adequately addresses the issues,” the appellate court stated.

“Thus, while we sympathize with Justice’s claims of inequity and unfairness, we are compelled to follow the plain language of KRS 342.140(3) and conclude that in the absence of being engaged in ‘regular employment,’ a workers’ compensation claimant has no average weekly wages from which disability income benefits can be based,” the court stated.

The case is David Justice v. Kimper Volunteer Fire Department; Hon. Grant S. Roark, Administrative Law Judge; and Workers’ Compensation Board, Commonwealth of Kentucky Court of Appeals, No. 2012-CA-000417-WC, Rendered: Sept. 14, 2012.