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Volunteer Firefighter Awarded Back Pay

Vermont Workers Compensation

1998. 

13-98WC. Casey v. Town of Newbury Fire Dept

March 23, 1998

State File No. J-17450

By: Margaret A. Mangan

Hearing Officer

For: Steve Janson

Commissioner

Opinion NO. 13-98WC

Daniel Casey, Claimant,

v.

Town of Newbury Fire Dept. and Travelers Insur. Co., Defendant.

Ruling on Motions for Summary Judgment and to Join Morrison and Clark

At issue is whether this claimant, who suffered a heart attack while working as a volunteer firefighter for the Town of Newbury, is entitled to indemnity benefits from the Town. Both parties filed motions for summary judgment. Attorney Joseph C. Galanes represents the claimant. Attorney Stephen D. Ellis represents the defendant.

Defendant argues that claimant is not entitled to any indemnity benefits and seeks a ruling that claimant’s self-employment income cannot be used for purposes of calculating average weekly wage. Claimant seeks a ruling that he is entitled to indemnity benefits. Among his arguments is the assertion that he is a statutory employee of Morrison and Clark. For that reason, defendant moves to join Morrison and Clark on the employer-employee issue.

FACTS:

1. On February 24, 1996, claimant was engaged in “public employment” as a volunteer firefighter for the Town of Newbury Fire Department. He held the rank of Captain.

2. On February 24, 1996, claimant had a heart attack while cleaning up the site after fighting a fire.

3. Defendant acknowledges the compensability of the claim and has paid medical expenses. However, it refuses to pay claimant any indemnity benefits.

4. Claimant is a flooring installer. He does work for Morrison and Clark, Inc. in Barre, Vermont.

5. Claimant considered himself an independent contractor, reported his income on a Form 1099 and did not have workers’ compensation insurance.

CONCLUSIONS OF LAW:

1. Claimant sets forth three arguments to support his position for entitlement to indemnity benefits: 1) he is a de facto employee of Morrison and Clark and, as a result, his earnings are wages which must be considered in the calculation of average weekly wage; 2) the plain meaning of 21 V.S.A. § 650 mandates inclusion of earnings from Morrison and Clark, even if claimant is not a de facto employee; and 3) at a minimum, claimant is entitled to benefits at a compensation rate of a similarly responsible paid firefighter.

2. Citing 21 V.S.A. § 650 (a), defendant argues that claimant is precluded from recovering indemnity benefits because he has no basis for calculating average weekly wage. Defendant maintains that claimant’s self-employment earnings cannot be used in the calculation of average weekly wage for purposes of establishing a compensation rate because claimant is not an “insured employer or self-insurer,” and because his income is not “wages in the employee’s regular employment.”

3. In Borough of Honesdale v. Workmens’ Compensation Appeal Board, 659 A. 2d 70 (Commonwealth Court of PA, 1995), a case on which defendant relies, a Pennsylvania court held that a volunteer ambulance squad member who suffered a heart attack in the line of duty was not entitled to include his self-employment income in the calculation of his compensation rate. In reaching that decision, the Honesdale court considered two important aspects of the Pennsylvania legislative scheme. First, because the Pennsylvania legislature had deleted an earlier provision that specifically included self-employment earnings in the calculation of average weekly wage for injured firefighters and ambulance workers, the court concluded that it meant to deny inclusion of those earnings. Second, mitigating the effects of not including self-employment income, is the Pennsylvania statutory presumption that the volunteer squad member’s average weekly wage, as an employee of the borough, was at least equal to the statewide average.

4. Unlike the Honesdale claimant, the claimant in this case would receive no indemnity benefits if defendant’s argument were accepted, a conclusion at odds with the Vermont legislative scheme and the liberal construction to be given to it. See, Montgomery v. Brinver Corp., 142 Vt. 461 (1983).

5. The relevant parts of the Vermont statute at issue here, broken down for ease of reference, are:

[A]verage weekly wages shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the twelve weeks preceding an injury; but where … by the terms of the employment, it is impracticable to compute the rate of remuneration, average weekly wages … may be based on the average weekly earnings … [of] a person in the same grade employed in the same class of employment. … [hereinafter “the computation provision”]

If the injured employee is employed in the concurrent service of more than one insured employer or self-insurer, the total earnings from the several insured employers and self-insurers shall be combined in determining the employee’s average weekly wage, but insurance liability shall be exclusively upon the employer in whose employ the injury occurred. [“concurrent employment provision”]

The average weekly wage of a volunteer firefighter, volunteer rescue or ambulance worker, or volunteer reserve police officer, injured in the discharge of duties as a firefighter, rescue or ambulance worker, or police officer, shall be the employee’s average weekly wage in the employee’s regular employment or vocation but the provisions of section 642 of this title relative to maximum weekly compensation and weekly net income rates shall apply. (Emphasis added) [“volunteer provision”] 21 V.S.A. § 650 (a)

6. In addition, public safety workers are specifically recognized in the Department’s rules: “If the claimant is a volunteer public safety worker covered under 21 V.S.A. § 601 (12) and/or 650 (a) who has no other regular employment, his/her average weekly wage shall be based on that of a similarly responsible, paid employee in the same occupation.” Workers’ Compensation Rule 15 (f).

7. The concurrent provision refers to a need to combine “total earnings,” a clear legislative statement that a claimant must have earnings from more than one source for that provision to apply at all. The claimant here had only one source of earnings, from the floor installation business. Because he was not paid for his firefighting work, there are no earnings to combine, and the concurrent employment provision of § 650(a) cannot apply. As the Honesdale court explained, “there can be no concurrent wages where only one wage is earned.” 659 A. 2d at 74. Whether claimant carried his own workers’ compensation insurance and whether he was an employee of Morrison and Clark are, therefore, considerations that are irrelevant to the determination at issue here.

8. Furthermore, to accept defendant’s argument that the concurrent provision controls and that this claimant is not entitled to indemnity benefits would render the volunteer provision meaningless. The goal in interpreting statutes is to effect legislative intent, which is discerned first by looking to the language of the statute. State v. Wool, 162 Vt. 342, 348, 648 A.2d 655, 659 (1994). “When the meaning of a statute is plain on its face, we have no need for construction, but rather must enforce it according to its terms.” Russell v. Armitage. No. 95-364, slip. op. (Vt. Supreme Court, May 2, 1997), citing Paquette v. Paquette, 146 Vt. 83, 86, 499 A.2d 23, 26 (1985).

9. Section 650 (a) is the only provision within the Workers’ Compensation Act where the word “vocation” appears. Defendant’s interpretation would render the use of that word meaningless. The clear legislative intent of the volunteer provision, underscored by the word “vocation,” was to provide broader coverage for public safety officers injured in the line of duty than what would be available to other workers. Rule 15 (f) interprets that statute, providing for compensation to injured public safety workers, even when they have no other “regular” employment.

10. Therefore, claimant, as a matter of law, is entitled to temporary total benefits as well as any permanency benefits which are related to his February 26, 1996 injury. A hearing will be necessary to determine the precise amount due. Earnings from Morrison and Clark will be relevant to that determination. But whether Morrison and Clark is a statutory employer is not.

ORDER:

1. Claimant’s motion for summary judgment on the issue of entitlement to indemnity benefits is GRANTED.

2. Defendant’s motion to join Morrison and Clark is DENIED.

Dated at Montpelier, Vermont, on this ________ day of March 1998.

Steve Janson

Commissioner

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