Missouri Court Rules Death Benefit for Volunteer FFs To Be Based on Career Wages

The Missouri Court of Appeals has ruled that death benefits for volunteer firefighters should be based upon the average wages of “similar” career firefighters in Missouri, and not based upon the value of the benefits received by “similar” volunteers. The case was brought by Susan Hayes, after the Missouri Labor and Industrial Relations Commission awarded her $40 per week in benefits following the death of her husband, Russell Hayes.

Russell, 62, was a volunteer firefighter for the El Dorado Springs Volunteer Fire Department. He died in a roll-over apparatus accident in 2018. Under Missouri law, the surviving spouse of a volunteer firefighter killed in the line of duty is entitled to workers comp death benefits. At issue was the determination of the proper amount Susan was entitled to.

As explained in the decision:

• The law requires [the] Employer to pay, among other things, a death benefit based on Husband’s average weekly earnings during the year immediately preceding the injury that resulted in his death.
• 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.
• But, regardless of the wage calculation ultimately utilized, a death benefit award cannot be less than $40 per week.

The Labor and Industrial Relations Commission concluded that since Russell’s wages could not be determined, the statutory minimum of $40 per week was the appropriate award. Susan argued that the proper reading of the phrase “the usual wage for similar services where such services are rendered by paid employees of the employer or any other employer” meant that for a volunteer firefighter, the Commission should have used the usual wages paid to a full-time career firefighter. She introduced testimony before the Commission as to the average wage of career firefighters in Missouri, but the Commission rejected her argument.

The Court of Appeals agreed with Susan (referred to in the decision as “Wife”):

• Wife contends that by ruling Husband’s average weekly wage could not be determined because of lack of evidence under section 287.150.1(6), the Commission misapplied the law.
• The Commission stated that “in the absence of more specific evidence, the pay of a neighboring full-time firefighter is not indicative of [the] pay [of] a volunteer firefighter.”
• But Wife did not seek to prove the pay of a volunteer firefighter.
• Rather, it is the “usual wage for similar services” that is responsive to section 287.250.1(6) and that is what Wife sought to prove.
• As acknowledged by the Commission, Wife “introduced evidence on the average wage of career firefighters in the State of Missouri and in southwestern Missouri rural fire departments.”
• Having found that Wife presented evidence of the “usual wage” of firefighters, the Commission did not then compare the services provided by such firefighters to the services provided by Husband as a volunteer firefighter to determine whether those services are “similar” as is required by section 287.250.1(6).
• Rather, the Commission misapplied the law in suggesting that Wife was misguided in asserting “that the services rendered by a full-time career firefighter and by a rural volunteer firefighter are similar” and in ruling that “[t]his [Commission] cannot assume facts not in evidence” as the record reveals that such evidence was produced by Wife.
• The Commission’s award is reversed and the case is remanded.
•  Upon remand, the Commission shall determine whether, consistent with this opinion, a wage for the purpose of calculating compensation in the form of the “usual wage for similar services” can be determined under section 287.250.1(6).

The case will now go back to the Commission to determine that usual wage for full-time personnel providing a similar service. Here is a copy of the decision: