(This is not the Decision of the Commission)
I have reviewed and considered all of the competent and substantial evidence on the whole record. This case involves a volunteer firefighter killed in the line of duty. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Worker's Compensation Law, I believe the majority errs in awarding the employee's widow death benefits of only $\ 40.00 per week, the statutory minimum wage rate.
The provisions of the Workers' Compensation Law are to be strictly construed. Section 287.800.1 RSMo. In Cosby v. Treasurer of State, 579 S.W.3d 202, 206 (Mo banc 2019), the Court stated, "When interpreting statutes, this "[C]ourt must ascertain the intent of the legislature by considering the plain and ordinary meaning of the terms and give effect to that intent if possible." Citing Mantia v. Dep't of Transp., 529 S.W3d 804 at 809 (Mo. banc 2017) (internal quotation omitted).
The statutory provisions relevant to a determination of the wage rate for weekly death benefits state:
Section 287.240(2) RSMo: The employer shall also pay to the dependents of the employee a death benefit based on the employee's average weekly earnings during the year immediately preceding the injury that results in the death of the employee, as provided in Section 287.250.
(3) The word "dependent" as used in this chapter shall mean: (a) A wife upon a husband with whom she lives . . . .
In addition, $\S \S 287.250 .1(6)$ and 287.250 .4 RSMo., in pertinent part, provide:
If the hourly wage has not been fixed or cannot be ascertained, or the employee earned no wage, the wage for the purpose of calculating compensation shall be taken to be the usual wage for similar services where such services are rendered by paid employees of the employer or any other employer (emphasis added);
If pursuant to this section the average weekly wage cannot fairly and justly be determined by the formulas provided in sections 1 to 3 of this section, the division or the commission may determine the average weekly wage in such manner and by such method as, in the opinion of the division or the commission, based upon the exceptional facts presented, fairly determine such employee's weekly wage.
In Seiferd v. Distinctive Service and Sign Erection, Inc., 965 S.W.2d 410, 412 (Mo. App. 1998), the court upheld prior case law determining how $\S 287.250$ should be applied. The court summarized this rule as follows: "[I]t is necessary to commence with the first subsection and then to descend in numerical order under the other subsections until the wage rate provision is found that applies to the particular facts of the case."
As a threshold issue, the majority errs in finding that the employer's payment to the employee of $\ 10.00 for a response to an emergency call within city limits and $\ 20.00 per call outside of city limits represented "compensation." The employer's payroll documents identified the employee as a "Volunteer." ${ }^{1}$ The claimant, the employee's widow, credibly testified that these small payments per call were mileage reimbursement payments, not wages. Section 287.250 .2 provides, in relevant part, "Any wages paid to helpers or any money paid by the employer to the employee to cover any special expenses incurred by the employee because of the nature of his employment shall not be included in wages."
Therefore, the wage rate provision applicable to this case is $\S 287.250 .1(6)$, which provides that where "the employee earned no wage, the wage for the purpose of calculating compensation shall be the usual wage for similar services where such services are rendered by paid employees of the employer or any other employer (emphasis added)." As no evidence was presented of any frontline firefighter in the El Dorado Springs Fire Department being paid, it is statutorily necessary to determine what firefighters performing similar services to the employee are paid.
Even though the employer/insurer operates under and is subject to the provisions of the Missouri Workers' Compensation Law, it offered no evidence of paid firefighters performing similar services to the employee. Instead, the employer/insurer has paid the claimant the $\ 40.00 per weekly statutory minimum rate set out in $\S 287.190 .5(2). As a result, Mrs. Hayes has received compensation of only \ 2,080.00 per year from the employer/insurer attributable to her husband's October 2018 work-related death.
By choosing to disregard the statutory language of $\S 287.250 .1(6)$, the employer/insurer has frustrated the legislature's intent to compensate a volunteer under the workers' compensation law the same as a paid employee performing similar services. The claimant, on the other hand, provided testimony from two wage experts regarding the appropriate compensation rate under $\S 287.250 .1(6)$. The ALJ erroneously disregarded this testimony.
In his award, the ALJ stated:
Dependent, through exhibit and expert testimony, has introduced evidence on the average wage of career firefighters in the State of Missouri and in southwestern Missouri rural fire departments. However, the plain text of RSMo. $\S 287.250 .1(6)$ requires both that the services rendered be similar and they are "rendered by paid employees of the
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[^0]: ${ }^{1}$ Transcript, p. 258.
employer or any other employer." Dependent's argument seems to ask for an assumption that the services rendered by a full-time career firefighter and by a rural volunteer firefighter are similar. This Court cannot assume facts not in evidence. ${ }^{2}$
The ALJ misconstrued the statute by determining that an unpaid, volunteer firefighter could not provide similar services as a paid firefighter. The statutory language does not distinguish between paid and unpaid employees but instead focuses on whether the services provided are similar. Section 287.250.1(6) was designed to protect unpaid volunteer employees by creating a "wage" for them so they are eligible for reasonable and appropriate compensation under the Workers' Compensation Law. By misconstruing the statutory language the ALJ disregarded competent and substantial evidence presented by the claimant's two wage experts and misconstrued the statute.
The ALJ cited Johnson v. City of Duenweg Fire Dep't, 735 S.W.2d 364 (Mo. banc 1987) (overruled on other grounds), for the proposition that "the pay of a neighboring full-time firefighter is not indicative of [the] pay [of] a volunteer firefighter." ${ }^{3}$ Johnson, however, involved an earlier, substantially different version of the relevant statute which provided:
(6) In the case of injured employees who earn either no wage or less than the earnings of adult day laborers in the line of employment in that locality, the yearly wage shall be reckoned according to the average annual earnings of adults of the same class in the same (or if that is impracticable then of neighboring) employments (emphasis added). Id., at 368 .
The Johnson case, decided in 1987, is also distinguishable in that it preceded the strict construction mandate of $\S 287.800$, enacted in 2005. These significant differences render Johnson inapplicable to the widow's claim in this case.
Adopting the ALJ's reasoning, an unpaid volunteer firefighter in a rural fire department could never provide similar services to those of a paid firefighter. This frustrates the legislature's intent. In Naeter v. Treasurer of Mo. As Custodian of Second Injury Fund, 576 S.W.3d 233, 237 (Mo. App. 2019) the court stated:
In 2005, the legislature amended the Workers' Compensation statutes with the instruction: "a]dministrative law judges, . . .the labor and industrial relations commission, . . . and any reviewing court shall construe the provisions of [Chapter 287] strictly." §287.800.2. This amendment took effect prior to the date of injury in this case. Prior to the amendment, the chapter was to be 'liberally construed with a view to the public welfare." §287.800 RSMo (2000). Strict construction does not authorize an ALJ, the Commission, or this court to add words to or subtract words from a statute or ignore the plain meaning of the words chosen by the legislature (citations omitted).
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[^0]: ${ }^{2} Award, p. 6.
{ }^{3}$ Award, p. 6.
In this case, the claimant offered the only evidence as to "the usual wage for similar services" rendered by paid employees. Vocational consultant Phillip Eldred opined that the definition of a firefighter is one who:
Controls and extinguishes fires, protects life and property, and maintains equipment as volunteer or employee of city, township, or industrial plant: Responds to fire alarms and other emergency calls. Selects hose nozzle, depending on type of fire, and directs stream of water or chemicals onto fire. Positions and climbs ladders to gain access to upper levels of buildings for ventilation or entrance, using ax, chisel, crowbar, electric saw, core cutter, and other power equipment. Protects property from water and smoke by use of waterproof salvage covers, smoke ejectors, and deodorants. Administers first aid and artificial respiration to injured persons and those overcome by fire and smoke. Communicates with superior during fire, using portable two-way radio. Inspects buildings for fire hazards and compliance with fire prevention ordinances. Performs assigned duties in maintaining apparatus, quarters, buildings, equipment, grounds, and hydrants. Participates in drills, demonstrations, and courses in hydraulics, pump operation and maintenance, and firefighting techniques. May fill fire extinguishers in institutions or industrial plants. May issue forms to building owners, listing fire regulation violations to be corrected. May drive and operate firefighting vehicles and equipment. May be assigned duty in marine division of fire department and be designated Firefighter, Marine (any industry). ${ }^{4}$
Mr. Eldred also reviewed and attached the following description of the position of "firefighter" provided by the El Dorado Springs Fire Department:
The volunteer firefighter position is responsible for responding to emergency incidents and performing rescue, emergency medical services, and fire suppression activities.
Firefighter ranks below the Engineer on the organizational chart and shall be monitored by the Incident Commander on emergency incidents.
Firefighter duties and responsibilities include the following:
1) Respond to alarms as available