Russell Hayes v. City of El Dorado Springs

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 18-078194

**Employee:** Russell Hayes (deceased)

**Claimant:** Susan Hayes (widow)

**Employer:** City of El Dorado Springs

**Insurer:** Self-Insured

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 16, 2021. The award and decision of Administrative Law Judge Kevin A. Elmer, issued December 16, 2021, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this **24th** day of October 2022.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Rodney J. Campbell, Chairman

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

Kathryn Ryan, Member

Attest:

*Kathryn*

Secretary

Improvee: Russell Hayes (deceased)

(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

[^0]

[^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).

[^0]

[^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, performing patient care, fire suppression activities, or other duties in regards to the type of incident encountered.

2) Attend regular training sessions consistently to ensure safe procedures are followed when responding to emergency incidents.

[^0]

[^0]: ${ }^{4}$ Transcript, p. 245.

3) Will constantly strive to improve their ability through training and by implementing the more innovative fire suppression techniques that are provided by the Department.

4) Will assist in maintenance, inspection, and upkeep of equipment, apparatus, and stations(s).

5) Will promote the mission and values of the Department at all times following all procedures and guidelines that apply.

6) Activity levels for the volunteer firefighter will be monitored monthly by the Fire Chief and/or Captain. Any volunteer that is consistently not participating in both training and responses may be asked to return equipment to the organization and step down from their position.

The description provided by Mr. Eldred's testimony as well as the volunteer firefighter services listed by the El Dorado Springs Fire Department are similar. These services essentially require the employee to:

- Respond to alarms/calls

- Control and/or extinguish fires

- Administer first aid

- Participate in training

- Maintain equipment

- Promote the mission and values of the fire department ${ }^{5}$

The claimant's wage expert, Lt. Brian Zinanni, a career firefighter and paramedic, testified that most firefighters have similar job expectations. The word "similar" is defined as: "1. having characteristics in common: very much alike; 2: alike in substance or essentials." ${ }^{6}$

Certainly, the description of the services provided by the El Dorado Springs Fire Department is similar to the firefighter services testified to by the claimant's wage expert, Mr. Eldred. Mr. Eldred's testimony regarding the wage rate for paid firefighters performing similar services to those services provided by the employee is competent and substantial evidence that is uncontradicted and unimpeached.

Mr. Eldred testified he considered "mean" wages to be the same as "average" wages. He testified that the Missouri average annual wage for a firefighter was $\ 51,970.00. He testified that in Southwest Missouri nonmetropolitan areas the average annual was $\ 31,070.00. Mr. Eldred testified that the employee's EMT and First Responder certifications would have entitled him to an annual wage above the average wage rates referenced, supra. In addition, Mr. Eldred testified that the "average" wage would be higher for a firefighter with forty-two years of experience, such as the employee.

[^0]

[^0]: ${ }^{5} See Transcript, pp. 245, 249.

{ }^{6}$ Webster's Third New International Dictionary, Unabridged ©2002 by Merriam-Webster, Inc., p. 2120 .

The claimant's other wage expert, Lt. Zinanni, testified that a paid firefighter performing the services Mr. Hayes performed would have earned a minimum of between $\ 30,000.00 and $\ 40,000.00 per year and even higher given Mr. Hayes' forty-two years of service and EMT/First Responder certifications.

The Commission must determine the intent of the legislature by considering the plain and ordinary meaning of the terms of the statute and give effect to that intent. The statute does not distinguish between full-time or part-time or metropolitan or rural, but simply requires that the claimant establish "the usual wage for similar services where such services are rendered by paid employees." $\S 287.250 .1(6).

Strictly construing \S 287.250 .1(6)$ mandates that the unpaid employee provide "similar service" to the paid employee. The statute contemplates comparing an unpaid volunteer firefighter to a paid firefighter; an unpaid, volunteer police officer to a paid police officer; an unpaid volunteer EMT to a paid EMT, etc. The statutory language focuses on the services rendered, not on the full-time/part-time status of a particular employee. By the very nature of unpaid, volunteer employment, the hours of employment would be less than a paid employee. The legislature was aware of this distinction when it enacted $\S 287.250 .1(6)$. The only logical reason for this statute would be to encourage unpaid volunteers to continue to provide services benefiting the public by fairly compensating those volunteers under workers' compensation when they are injured or killed in the line of duty.

The legislative intent of $\S 287.250 .1(6)$ to treat an unpaid, volunteer firefighter as a "paid" firefighter would not be furthered by a part-time/full-time distinction in a death claim, given that the volunteer firefighter's family would lose the income provided by the volunteer firefighter's paid occupation. The statute arguably seeks to compensate a volunteer firefighter's family for that loss of income. In this case, the employee was making approximately $\ 52,500.00 working nights as an in-home aid for the Missouri Department of Mental Health. The employee's family lost this income when the employee died in the line of duty.

The employer/insurer offered only employer business records and no wage expert testimony. Of the business records offered, the only relevant business record was the record setting forth the duties of a volunteer firefighter for the City of El Dorado Springs. This evidence supports the claimant's position because the services of a volunteer firefighter outlined in this document are similar to the services of firefighters outlined in the Dictionary of Occupational Titles, relied on by Mr. Eldred.

The only evidence presented as to "the usual wage for similar services where such services are rendered by paid employees of the employer or any other employer" as required by $\S 287.250 .1(6)$ was produced by claimant's wage experts.

Mr. Eldred testified that the average annual wage for nonmetropolitan Southwest Missouri paid fire departments was $\ 31,070.00 for firefighters. Lt. Zinanni testified he believed the services Mr. Hayes was providing for the volunteer fire department of the City of El Dorado Springs would be a minimum of $\ 30,000.00 to $\ 40,000.00 per year.

Enployee: Russell Hayes (deceased)

Both Mr. Eldred and Lt. Zinanni testified the CMT and First Responder certifications Mr. Hayes achieved plus his forty-two years of firefighter services would have made his pay significantly more than the above-referenced amounts.

The ALJ's award finding the claimant entitled to death benefits of only $40.00 per week, the minimum statutory amount, was erroneous because the competent and substantial evidence established that services similar to the employee's services in a paid fire department would be compensated at a minimum of $31,070.00/$30,000.00 per year based on the testimony of the claimant's two wage experts. These annual wages would equal average weekly wages of $597.50/$576.92 and weekly compensation/death benefits of $398.33/$384.62 respectively.

There is evidence in the record from which the Commission could determine an award in conformity with the mandate of §287.250.1(6). However, after determining that token amounts paid to the employee for mileage reimbursement constituted wages, the majority further concluded that the employee did not meet his burden of proof under §287.250.1(6) because he failed to establish what a part-time volunteer firefighter was paid. As noted by Judge Blackmar in his dissent in the Johnson opinion, supra, "This is not a simple finding of failure of proof. Neither the Commission [nor the ALJ] has a realistic suggestion as to what other kind of proof could be made. . . .By [the majority and ALJ's] opinion[s] the claimant is apparently told that substantial compensation is authorized but no means of proof is available." Id., at 370-371.

The nominal compensation awarded to the claimant is fundamentally unfair considering the employee's lifetime of service to his community in a job that involved putting his life at risk to protect others, without compensation. Therefore, I respectfully dissent.

Shalonn K. Curls, Member

Employee: Russell Hayes (deceased)

Injury No. 18-078194

Dependents: Susan Hayes

Employer: City of El Dorado Springs

Insurer: Midwest Public Risk of Missouri

Additional Party: N/A

Hearing Date: August 16, 2021

Checked by: KAE

Record Closed September 16, 2021

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: October 3, 2018.
5. State location where accident occurred or occupational disease was contracted: Cedar County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: The Employee was driving a fire engine in service of the employer and was killed as a result of a motor vehicle accident.
12. Did accident or occupational disease cause death? Yes.
13. Part(s) of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for death benefits: $\ 10,960 (as of date of hearing, $\ 5,000 burial expenses and $\ 5,960 total weekly benefit at $\ 40 per week).
16. Value necessary medical aid paid to date by employer/insurer? $\ 65,889.14.
17. Value necessary medical aid not furnished by employer/insurer? N/A.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Russell Hayes

Injury No. 18-078194

1. Employee's average weekly wages: Cannot be determined.

1. Weekly compensation rate: $40.00

1. Method wages computation: Statutory minimum.

COMPENSATION PAYABLE

1. Amount of compensation payable: $40.00 per week.

1. Second Injury Fund liability: N/A

1. Future requirements awarded: The Employer and Insurer are ordered to continue statutory minimum payments of $40.00 per week.

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Joseph Hosmer, Esq.

Page 2

Employee: Russell Hayes

Injury No. 18-078194

Dependents: Susan Hayes

Employer: City of El Dorado Springs

Insurer: Midwest Public Risk of Missouri

Additional Party: N/A

Hearing Date: August 16, 2021

Checked by: KAE

Record closed September 16, 2021

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on August 16, 2021. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed, closed and submitted to the undersigned on or about September 16, 2021.

The dependent of the deceased Employee, Ms. Susan Hayes, appeared personally and through her attorney Mr. Joseph Hosmer, Esq. The employer and insurer appeared through their attorney, Mr. Jared Vessell, Esq.

The parties reached the following stipulations of fact and narrowed the issues as follows:

(1) On or about October 3, 2018, City of El Dorado Springs ("Employer") was an employer operating under and subject to the terms and provisions of The Missouri Workers' Compensation Law, and during this time was fully insured by Midwest Public Risk of Missouri ("Insurer").

(2) On the alleged injury date of October 3, 2018, Russell Hayes was an employee of the employer and was working under and subject to The Missouri Workers' Compensation Law.

(3) On the alleged date of injury of October 3, 2018, Employee sustained an accidental injury arising out of and in the course and scope of his employment for the employer.

(4) The above referenced employment occurred in Cedar County, Missouri, and the accident occurred in Cedar County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(5) The employee notified the employer of his injury as required by RSMo. § 287.420 .

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Russell Hayes Injury No. 18-078194

(6) The claim for compensation was filed within the time prescribed by RSMo.

§ 287.430.

(7) No temporary disability benefits have been paid to date by the

employer/insurer.

(8) Necessary medical aid in the amount of $65,889.14 has been paid to date

by the employer/insurer.

(9) The attorney fee being sought by Joseph Hosmer is 25% of all benefits

awarded.

(10) Employer has paid burial expenses in the maximum amount of 5,000.

(11) The Employer has paid dependent 40.00 per week since October 3, 3018,

in the total amount of $5,960.

ISSUES

The sole issue to be resolved by hearing include:

(1) Whether the employee's average weekly wage is an amount that results in

a compensation rate in excess of the statutory minimum of $40.00 per week?

EVIDENCE PRESENTED

Ms. Hayes testified at the hearing in support of her claim. Also, the employee presented at

the hearing of this case the testimony of two witnesses Mr. Bryan Zaninni and Mr. Phillip Eldred.

In addition, the employee offered for admission the following exhibits:

Exhibit 1......................................................................................Medical Records

Exhibit 2.................................................................... Phillip Eldred Report and C.V.

Exhibit 3..................................................................................Bryan Zaninni C.V.

Exhibit 4....................................................................................Wage Comparison

The employer and insurer did not present any witnesses at the hearing of this case.

However, the employer and insurer offered for admission the following exhibits:

Exhibit A....................................................................................Wage Statement

Exhibit B........................................................................Personnel File of Employee

Exhibit C.......................................................................Job Description of Employee

Exhibit D.......................................................................Historical Pay Information

Exhibit E.......................................................................Wage Statement of Fire Chief

The exhibits were received and admitted into evidence.

Page 4

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

Ms. Susan Hayes ("Dependent") appeared in person and testified live at the hearing of this matter. In reviewing the exhibits admitted at trial and taking that information together with the live testimony, I find that the relevant background information is as follows:

Mr. Russell Hayes ("Employee") was a volunteer firefighter for the City of El Dorado Springs, MO. Mr. Hayes has been a volunteer firefighter and EMT for several decades. Employee would respond to calls when he was available, typically while not at his regular place of employment. Employee was compensated per call responded to, at a rate of $\ 10 for a response to a call within city limits, and $\ 20 per call outside of city limits.

On October 3, 2018, Employee was transporting a fire engine for the City of El Dorado Springs, not in response to an emergency but under his duties as a volunteer firefighter, and was involved in a rollover accident. The employee was ejected from the vehicle and sustained multiple injuries which resulted in his death shortly thereafter.

At no point has the employer/insurer denied compensability of the accident. The Employer/Insurer has paid all related medical bills of which they are aware. The employer/insurer has paid the weekly statutory minimum benefit of $\ 40 since the date of the accident. The only dispute between the parties is the rate of weekly benefit.

Ms. Susan Hayes testified that she is the widow of Employee and lived together as husband and wife at the time of Employee's death. Ms. Hayes testified that she and Employee have two adult children, neither of whom were dependents at the time of death. She testified that the deceased had no other children.

Thus, I find that Ms. Susan Hayes is the only dependent entitled to benefits.

Under RSMo § 287.240(2), "The employer shall also pay to the total 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." Further, RSMo § 287.240(2)(e) provides a statutory minimum compensation of $\ 40 per week.

RSMo $\S 287.250$ provides the method for calculation of benefit. In applying the statute, the formulas are to be applied in descending order until a formula is reached that "applies to the particular facts of the case." Adamson v. OTC Calhoun Trucking, Inc., 212 S.W.3d 207, 213, 215 (Mo. App. S.D. 2007) (internal quotations and citations omitted).

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Russell Hayes

Injury No. 18-078194

If the wages are fixed by the week, month, year, day, hour, or output, the calculation is based upon a function of that actual pay. Upon evidence presented, Employee's compensation was not fixed by any amount of time or output as outlined in RSMo § 287.250.1(1)-(4). Instead, he was paid per call responded to. The nature of responding to emergency calls is unpredictable, so it cannot be said that such calls were of any regular nature so as to fit in the method set forth in those subsections.

The Employee was employed for greater than two calendar weeks. Thus, RSMo § 287.250.1(5) does not apply.

Under RSMo § 287.250.1(6), "[i]f 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." As set forth above, Employee was not paid by any fixed hourly wage, and thus the wage cannot be determined by any preceding method under statute.

Dependent has put forth no evidence regarding the usual wage for similar services rendered by paid employees of the employer. The only evidence presented on any paid employee of the Employer is the wage statement of the City of El Dorado Springs Fire Chief. However, the Fire Chief was paid an additional salary of $750 per quarter, in addition to the regular per call pay of other volunteers. The evidence of wages of the Fire Chief is insufficient to establish the usual wage for similar services by a paid employee. No evidence was presented comparing the duties of the Fire Chief compared to that of the individual volunteer firefighters.

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 § 287.250.1(6) requires both that the services rendered be similar and that they are "rendered by paid employees of the 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. What evidence does exist on this point comes from the live testimony of Ms. Hayes, who testified that Employee never had to stay for a fixed period at the fire house and would only respond to calls when he was available. Furthermore, in the absence of more specific evidence, the pay of a neighboring full-time firefighter is not indicative of pay a volunteer firefighter. *Johnson v. City of Duenweg Fire Dept.*, 735 S.W.2d 364 (Mo. banc 1987) (overruled on other grounds).

Section 287.250.2 also cannot apply, as no evidence was presented of gratuities, fringe benefits, or the provision of board, rent, housing, or lodging.

For the same reason as above, RSMo § 287.250.3 cannot apply because there has not been sufficient evidence to determine an appropriate weekly wage.

Finally, under RSMo § 287.250.4, "If pursuant to this section the average weekly wage cannot fairly and justly be determined by the formulas provided in subsections 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 average weekly wage."

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Russell Hayes

Injury No. 18-078194

This case is similar to the recent Commission decision in the matter of *Haynes v. Hillis Dodge*. In that case, the employee was hired to drive vehicles for the employer to and from auctions. He was paid the lump sum amount of $40.00 for each trip, regardless of how long it took him. The administrative law judge found that the employee's average weekly wage was 225.00 with a compensation rate for temporary total disability of 40.00 and permanent partial disability of $150.00.

The Labor Commission applied RSMo § 287.250.1-4 to reach its decision. In that matter, they stated the evidence presented did not apply to any of the sections of RSMo § 287.250.1. The duty of driving a truck to and from an auction was not a daily position even for the employer's other employees who handled local auction trips. In *Hayes v. City of El Dorado Springs*, the employee was paid per call and not on a regular basis.

Like Mr. Hayes, the employee in the *Haynes v. Hillis Dodge* case did not have an hourly wage that could be ascertained. They believed due to this, RSMo § 287.250.1 and § 287.250.3 did not apply. In regard to RSMo § 287.250.2, they pointed out there were no gratuities, fringe benefits, or other provisions including rent, board, housing, or lodging.

The Commission confirmed that the average weekly wage could not be fairly and justly determined in that matter using RSMo § 287.250.1-3. Therefore, it was the opinion of the Commission that, based on the facts in this case which they believed were exceptional, the employee should receive the statutory minimum for weekly compensation of $40.00. Accordingly, the employee's Award was 140 weeks of compensation, changed from the rate of 150.00 per week to 40.00 per week, totaling $5,600.00.

Similar to the *Haynes v. Hillis Dodge* case, Mr. Hayes was compensated per call as a volunteer fireman. His average weekly wage cannot be ascertained applying these sections of the Statute RSMo § 287.250.1-3. Therefore, it is up to the Commission and Finder of Fact to determine the appropriate rate. The appropriate rate in this matter should be 40.00 per week, which is the statutory minimum. The Employee was paid 506.00 from October 1, 2017, through September 30, 2018 (the entire prior year). Based on the statutory minimum, the dependents of Mr. Hayes will receive 40.00 per week. This comes out to 2,080.00 per year.

The just and fair compensation for Mr. Hayes in this case is the statutory minimum of $40.00 per week. Similar to the *Haynes v. Hillis Dodge* case, the Employee's average weekly wage for this matter cannot be fairly and justly determined. Therefore, the fair and just wage rate shall be $40.00 per week.

Based upon historical wage data admitted to evidence, Employee was paid quarterly, with data since October 2005. At no point during that time did Employee earn quarterly pay that exceeded an average of $40 per week. This Court cannot fairly determine based on facts in evidence that an Award greater than the statutory minimum of $40 per week fairly reflects the average weekly wage of Employee.

For the reasons stated above, the statutory minimum of $40 per week is awarded.

Attorney Joseph Hosmer, is allowed a fee of 25 percent of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this

Page 7

attorney's fee shall constitute a lien on the compensation awarded herein. Interest on all sums awarded hereunder shall be paid as provided by law.

I certify that on Dec 162021

I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By: $\frac{\text { Aaomi. Darson }}{\text { Darson }}$


Made by: $\frac{\text { Kevin A. Elmor }}{\text { Kevin A. Elmer }}$

Administrative Law Judge

Division of Workers' Compensation