State News

You Can't Do That! 

Trial judge abused discretion by refusing to abate personal injury suite and consolidating it with judicial review of TDI-DWC decision

This month the 14th Court of Appeals in Houston agreed with arguments by Stone Loughlin & Swanson, LLP and other firms that Harris County District Court Judge Fredericka Phillips abused her discretion by (1) refusing to abate a personal injury action pending judicial review of a TDI-DWC decision on the worker’s employment status and (2) consolidating the two actions. 

In our law firm’s 20-year history we’ve seen some bizarre workers’ compensation claims, but this one might just take the cake. It's through-the-looking-glass procedural history began when, in September 2021, 16-year-old Romny Sanchez joined his uncle, Leonel Yanez, on a job providing remediation services to victims of Hurricane Ida in Louisiana. Both men were injured while riding as passengers in a van driven by Joe Saavedra, who fell asleep and crashed into a light pole. Saavedra was an employee of All Repair and Restoration, LLC, and Sanchez and Yanez filed a personal injury suit against All Repair in Harris County district court alleging everything but the kitchen sink -- asserting claims for negligence, vicarious liability, fraud, civil conspiracy, gross negligence, intentional infliction of emotional distress, and violations of the Fair Labor Standards Act and the Texas Payday Act. All Repair asserted the affirmative defense that Sanchez and Yanez were its employees and their exclusive remedy is workers’ compensation benefits under All Repair’s policy with National Casualty Company. 

Sanchez and Yanez disputed that they were All Repair’s employees, so National, represented by this firm, initiated dispute resolution proceedings at the TDI-DWC to determine their employment status. Even though the facts were largely the same for both men, the Division refused National’s request to hear the cases together. Instead, it insisted on conducting two separate contested case hearings by two different ALJs. And, as could be predicted, the ALJs reached different conclusions. The ALJ presiding over Yanez’ case concluded that he was All Repair’s employee, but the ALJ presiding over Sanchez’ case concluded that he was not All Repair’s employee. All Repair then filed a petition for judicial review of the decision regarding Sanchez. 

At Sanchez’ request, and over the objections of National and All Repair, Judge Phillips consolidated the two actions and denied a motion to abate the personal injury action pending resolution of the judicial review action. National and All Repair then took the extraordinary step of filing a petition for writ of mandamus with the court of appeals. 

The court of appeals found that Judge Phillips abused her discretion on both counts. It directed her to vacate her order of consolidation because, among other things, “a vast portion of the evidence to be expected in the personal injury suit is likely to be inadmissible in the judicial review suit due to the limited nature of the proceeding.” It also directed her to abate the personal injury suit pending the outcome of the petition for judicial review, citing its prior decisions in In re Tyler Asphalt & Gravel Co. and In re Luby’s Cafeterias, Inc. which hold that abatement is required under such circumstances. 

Copyright 2024, Stone Loughlin & Swanson, LLP 

You Can't Do That Either! 

ALJ abused discretion by relieving unrepresented claimant from effect of Benefit Dispute Agreement

In Appeal No. 240113, the TDI-DWC Appeals Panel has taken the unusual step of reversing an ALJ’s decision and rendering a new one on the grounds that ALJ abused his/her discretion by relieving a claimant from the effects of a DWC-24. 

In the DWC-24, the claimant and carrier agreed that the compensable injury extends to include right wrist volar carpal ganglion cyst and they agreed to adopt the date of MMI and the 2% impairment rating assigned by a designated doctor. Later, however, the claimant argued at a contested case hearing that she should be relieved from the effects of the agreement because she cannot read English and the ombudsman assisting her did not fully explain the agreement to her.

The ALJ found that no fraud or misrepresentation was involved in procuring the agreement and the claimant was provided with sufficient time to review the agreement before she signed it. However, the ALJ found that good cause existed to relive the claimant from the effects of the agreement because the 2% IR assigned by the designated doctor was a result of misapplication of the Guides to the Evaluation of Permanent Impairment. 

But the Appeals Panel concluded that the calculation of the claimant’s IR required rounding, which requires medical judgement, so the evidence did not support the ALJ’s determination that the 2% IR assigned by the designated doctor was a result of misapplication of the Guides. Accordingly, the Appeals Panel reversed the ALJ’s decision and rendered a new decision that there is no good cause for relieving the claimant from the effects of the agreement and it is final and binding. 

Copyright 2024, Stone Loughlin & Swanson, LLP 

Division reminds carriers of their obligation to pay for preventative treatment 

On April 23, 2024, TDI-DWC’s General Counsel, Kara Mace, issued a memorandum to system participants regarding preventative treatment claims handling. In it, Ms. Mace stated that the Division “would like to remind insurance carriers of the rules associated with preventative treatment related to a physical injury and workers’ compensation claims handling.”

The memo notes that preventative treatment “may include medications such as rabies vaccines, tetanus shots, and post-exposure prophylaxis that are prescribed by a health care provider.” It also states that “an insurance carrier must follow treatment guidelines and pay for specified pharmaceutical services sufficient for the first seven days following the date of injury, regardless of issues of liability for or compensability of the injury,” citing Texas Labor Code §413.011 and DWC rules 134.501 and 137.100.
 
Rule 134.501, titled Initial Pharmaceutical Coverage, provides in part that:

The insurance carrier . . . shall pay for specified pharmaceutical services sufficient for the first seven days following the date of injury, regardless of issues of liability for or compensability of the injury that the carrier may have, if, prior to providing the pharmaceutical services, the health care provider  . . . obtains both a verification of insurance coverage, and an oral or written confirmation that an injury has been reported.

. . . Specified pharmaceutical services are prescription drugs and over-the-counter medications prescribed by a doctor that cure or relieve the effects naturally resulting from the compensable injury, promote recovery, or enhance the ability of the employee to return to or retain employment.

Ms. Mace ends the memo by noting that “failure to properly handle preventative treatment claims under these rules and other applicable laws may result in the assessment of administrative penalties not to exceed $25,000 per day per occurrence.”
 

Copyright 2024, Stone Loughlin & Swanson, LLP

Movin’ on Up!

We’ve learned that Angel Hendricks, a Proceedings Resolution Officer (PRO) in the TDI-DWC Tyler field office, has been promoted to Benefit Review Officer (BRO) and will replace Olivia Turner, who is embarking on a well-deserved retirement. 

Ms. Hendricks is to start in her new position on June 1, and we are delighted to begin working with her in that capacity. Congratulations Ms. Hendricks!

Copyright 2024, Stone Loughlin & Swanson, LLP

Good riddance: Mastermind of workers’ compensation fraud scheme headed to prison for decades

At SLS, we focus on news of workers’ compensation law in the great state of Texas, but this news from California (of all places) is too good to pass up. A big fish has gotten his just desserts. 

Peyman Heidary, a chiropractor who reportedly referred to himself as “the Godfather” and “Number One,” was sentenced this month to 54 years, 8 months in state prison, and ordered to pay more than $23 million in fines, for his role in overseeing a massive workers’ compensation fraud scheme in California. 

Heidary reportedly owned and oversaw a network of sham medical clinics to generate fraudulent billings to workers’ compensation insurance carriers. A non-attorney, he also reportedly controlled the day-to-day operations of sham law firms. His sham law firms would interview injured workers and direct them to one of his sham clinics where they would be subjected to a barrage of treatments, regardless of need, including massage, chiropractic manipulation, acupuncture, and psychiatric evaluation. After the clinics wrung out the maximum number of visits, they would discharge the patients regardless of their medical status. 

A jury convicted Heidary of 68 counts of insurance fraud, conspiracy, and money laundering. During the sentencing hearing on April 12, 2024, Judge Charles Koosed noted that Heidary possessed deep knowledge of the workers’ compensation system, stating “[Heidary] took advantage of that knowledge based on greed.” 

Copyright 2024, Stone Loughlin & Swanson, LLP

 
Should you have any questions or wish to discuss any related matters, please contact us at your convenience.

H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200

Employees Must Establish Causal Link to Employment In Workplace Violence Cases

Noah Vollmer, Esq. Bleakley Bavol Denman & Grace

In a case which received significant attention over the last year, the First District Court of Appeal, which hears all workers’ compensation appeals in Florida, held that an employee who was shot while at work did not meet his burden of proving that his injury arose out of his employment. In Normandy Insurance Company v. Bouayad, 372 So. 3d 671 (Fla. 1st DCA 2023), the Claimant, Mohammed Bouayad, worked as a general manager for a rental car business located in the Orlando International Airport Holiday Inn. Mr. Bouayad worked at a kiosk inside the hotel atrium. At the end of each day, Mr. Bouayad would carry rental car agreements and cash from the kiosk to an office located in a separate building roughly fifty feet away from the kiosk. On June 28, 2019, around midnight, Mr. Bouayad was walking from the kiosk to the office when an unknown assailant emerged and shot him seven times. Surveillance video of the shooting showed that the shooter shot Mr. Bouayad, turned to leave, then turned back around and shot Mr. Bouayad several more times before fleeing. The shooter did not make any attempt to rob Mr. Bouayad or take anything from him. Despite being shot seven times, Mr. Bouayad was able to make it back to the hotel. A hotel guest came over to assist Mr. Bouayad, at which time Mr. Bouayad told the guest “Robert shot me” and also that the police should look for his assailant in a blue Ford Mustang.   

Mr. Bouayad petitioned for workers’ compensation benefits and his claim was subsequently denied by the Employer/Carrier who argued that the injuries Mr. Bouayad sustained did not arise out of his employment.[1] Specifically, the Employer/Carrier argued that there was reason to believe Mr. Bouayad was shot by Robert Aponte, and that the shooting stemmed from a dispute over an alleged debt between Aponte and Mr. Bouayad’s son. The day prior to the shooting, Mr. Aponte confronted Mr. Bouayad’s son and threatened to kill him. The Employer/Carrier argued that the shooting which occurred the next day was related to this dispute and confrontation rather than Mr. Bouayad’s employment. In support of this argument, the Employer/Carrier presented evidence that Mr. Bouayad told the hotel guest that “Robert” shot him and that the police should look for a blue Ford Mustang, that Mr. Aponte owned a blue Ford Mustang, and that the hotel where Mr. Bouayad worked was registered as a residence for Mr. Aponte.

In response, Mr. Bouayad, despite his statements made in the immediate aftermath of the shooting, subsequently claimed that Mr. Aponte was not the shooter and that his shooting was work-related. Notably, the police did not charge Mr. Aponte with the shooting, though this was based in part on several witnesses who knew Mr. Aponte (including Mr. Bouayad’s wife and son) viewing the surveillance video and denying that Mr. Aponte was the shooter.[2]  In support of his contention that the shooting was work-related, Mr. Bouayad presented expert criminology testimony that his employment exposed him to increased risk of becoming a crime victim based on the inherent risks associated with his job responsibilities and work hours as well as the crime rate in the area where his employment was located compared to the area near Mr. Bouayad’s home. Further, Mr. Bouayad presented testimony from the company’s co-owner that several rental cars had been stolen and others had been vandalized in the few years preceding the shooting. Additionally, the co-owner testified that three employees had been fired in the weeks before the shooting, two for theft and one for a failed drug test. That said, the co-owner also testified that he was unaware of any violent crime on the hotel premises prior to the shooting and that none of the terminated employees had threatened violence.

After a trial, the Judge of Compensation Claims entered an order finding that Mr. Bouayad’s injuries were compensable on the grounds that his “employment substantially contributed to the risk of injury and to risks which [Mr. Bouayad] would not normally be exposed to during his nonemployment life.” After granting a motion for rehearing filed by the Employer/Carrier, the JCC entered an amended final order which still found that Mr. Bouayad’s injuries were compensable, but this time concluded that the shooting was “a targeted attack based upon inside information that [Mr. Bouayad] would be working late” and that “the reason for the targeted attack was more likely than not related to the termination of a prior employee[s] or other job related issue rather than the incident with Robert Aponte.”[3]  The JCC held that Mr. Bouayad’s employment was the major contributing cause of the shooting and his related injuries because, but for Mr. Bouayad walking between the kiosk and the office as part of his employment, the shooting would not have occurred at the time and place it did.

For an accident and injury to be compensable under Florida law, it must “aris[e] out of work performed in the course and scope of employment.” § 440.09(1), Fla. Stat. Florida courts have held that the “arising out of” element refers to the origin of the cause of the accident. Specifically, “for an injury to arise out of and in the course of one’s employment, there must be some causal connection between the injury and the employment or it must have had its origin in some risk incident to or connected with the employment or that it flowed from it as a natural consequence.” Fid. & Cas. Co. of N.Y. v. Moore, 196 So. 495, 496 (1940).

On appeal, the First DCA held that Mr. Bouayad failed to meet his burden of proving that his injuries arose out of the work he performed. The Court first noted that, although the workers’ compensation system is a no-fault system and so an employee need not establish fault, for an accident and injury to be compensable, an employee still must establish occupational causation. The Court stated, “although workers’ compensation benefits are payable irrespective of fault, they are not payable irrespective of cause.” With respect to Mr. Bouayad’s case, the Court held that there was no causal link between Mr. Bouayad’s injuries and the work he performed.  Mr. Bouayad did not present any evidence which identified the shooter, established their motive, or connected the shooter to the work Mr. Bouayad performed. It was not enough that the shooting happened while Mr. Bouayad was working. The Court stated “[t]he sole cause of his injuries was that he was shot. At most, the work he performed for [the employer] placed Bouayad in the wrong place at the wrong time. This is not enough to establish occupational causation.” The Court concluded its opinion by certifying the following question to the Florida Supreme Court: “[W]hen an act of a third-party tortfeasor is the sole cause of an injury to an employee who is in the course and scope of employment, can the tortfeasor’s act satisfy the occupational causation element, as defined by section 440.02(36), Florida Statutes, necessary for compensability under the Worker’s Compensation Law?”

The Bouayad case provides an employer friendly ruling with respect to acts of violence occurring in the workplace. Bouayad reiterates that the employee has the burden of proving both that an accident arose out of and occurred in the course and scope of their employment. An employee cannot meet this burden simply by showing that their accident occurred while they were at work. This ruling seemingly provides employers with protection against workplace violence accidents which have no connection whatsoever to the subject employment.   

On January 27, 2023, the Commonwealth Court issued a memorandum opinion in City of Pittsburgh v. Ronald Dobbs (Workers’ Compensation Appeal Board), in which it expandedthe application of impairment rating evaluations to all injuries, including injuries that occurred prior to the enactment of Act 57.  The Court noted that Act 57, in which the impairment rating evaluation (IRE) process was initiated, limited its application to injuries sustained prior to its enactment on June 24, 1996.  Subsequently, however, the IRE process was declared null and void by the Pennsylvania Supreme Court in Protz v. Workers’ Compensation Appeal Board (Derry Area School District).  In striking down the entirety of Section 306(a.2), the Supreme Court held that the IRE process of Act 57 violated the nondelegation doctrine of the Pennsylvania Constitution.  The Pennsylvania General Assembly responded, and enacted the Act 111 Amendments to the Workers’ Compensation Act in 2018.  However, unlike Act 57, there was no specific provision in Act 111 that limited it application to injuries suffered prior to a specific date.  In Dobbs, the Court noted that Act 111 has since withstood several Constitutional challenges, and held that in the absence of any language within Act 111 limiting the date of injury, its application was extended to all injuries, including those injuries occurring prior to June 24, 1996.

Author: Melissa C. Petersen, Esquire

Due to the retirement of Judge James R. Coe on April 15th, there is a judicial vacancy on the Nebraska Workers’ Compensation Court. On Friday, March 29th, the Judicial Nominating Commission for the Nebraska Workers' Compensation Court submitted two names to Governor Jim Pillen: Jill K. Hamer Conway of Omaha and Brynne Holsten Puhl of Lincoln.  Six Judges serve on the Nebraska Workers’ Compensation Court and hear cases across the State of Nebraska.

                                                        Simon Law Group, P.C.

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                       MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                                                     January 2024 – March 2024

Expert Must Consider Only Qualifying Pre-Existing PPD

Emerson v. Prestressed Casting Co., & Second Injury Fund, Injury No. 18-08559

FACTS: The claimant sustained three prior injuries to his low back. His first low back injury was on May 8, 2012. The MRI showed a small central zone protrusion at L3-4, a central and pericentral zone disc protrusion and annular fissure at L4-5, with mild lateral recess stenosis. The claimant was discharged with a 0% rating and return to full work without restrictions.

His second prior injury was on April 13, 2013. Dr. Crabtree performed a hemilaminectomy and microdiscectomy at L5-S1. The claimant subsequently returned to full duty work without restrictions.

The claimant’s third injury was on December 29, 2014. Dr. Chabot performed surgery which included partial facetectomies and foraminotomies at L4-5 and L5-S1, fusion at L5-S1, and insertion of pedicel screws and rods at L5-S1. After surgery, the claimant continued follow-up care with Dr. Chabot for continuing leg pain.

After reaching MMI following each of the three prior low back injuries, the claimant returned to work at full duty. Although Dr. Woodward provided job restrictions for 35-pound lifting, there is no evidence that the restrictions were followed.

On August 29, 2018, the claimant sustained his primary injury to his neck and low back. A lumbar spine MRI showed L4-5 lateral recess stenosis and facet joint arthropathy that had progressed since claimant’s post fusion MRI. The claimant then underwent a cervical fusion at C5-6 with Dr. Crabtree. Since the claimant’s cervical surgery in 2019, he was using a cane daily, his right leg had given out, he slept poorly, was dependent on pain medication and had significant limitations regarding his activities.

In his Award following the Hearing, the Judge found the employer/insurer solely liable for PTD because the employee worked without limitations before the August 29, 2018 primary injury, stating that “although Mr. Emerson suffered impairments before his last accident, he did not suffer significant consequences from his impairment, i.e. [prior] disabilities until after the last accident.”

The employer/insurer filed a timely Application for Review alleging that the Judge erred in making a distinction between impairment and disability in disregard to the prior settlement and erroneously interpretating 287.220 regarding the liability of the Fund.

HOLDING: The Commission analyzed and applied Section 287.220.3 (2) regarding the liability of the Second Injury Fund for permanent total disability claims. In summary, the statute states that the Fund is liable when an employee sustains a subsequent compensable work-related injury when combined with a preexisting disability equaling a minimum of 50 weeks of permanent partial disability results in permanent total disability.

In this case, only one medical expert, Dr. Volarich, addressed the effect of the claimant’s preexisting disabilities in combination with disabilities attributable to his primary injury. Dr. Crockett rated the claimant’s PPD as 20% of the body but did not distinguish preexisting disabilities from any disability relating to the primary injury. Dr. Volarich opined that the claimant had 60% preexisting PPD of the body rated at the lumbar spine.

The Commission concurred with Dr. Volarich’s opinion that qualifying pre-existing disability attributable to the claimant’s 2013 and 2014 compensable work injuries combined with disability from the claimant’s primary injury to render him permanently and totally disabled. Therefore, the Fund was liable for PTD benefits and the employer was liable for 35% of the body for the primary injury.

Employer Liable for PTD From Primary Injury Alone Despite Conservative Treatment

Balliu v. Konika Minolta Business Solution USA, Inc. & Second Injury Fund, Injury No. 15-085465

FACTS: The employee had an injury on May 6, 2015 and settled against the employer for 25% of the body for a strain on the right groin which was treated non-surgically. The employee went to a hearing against the Fund.

The claimant sustained two prior injuries. In 1999, he suffered a bilateral hernia which was surgically repaired. The claimant testified this happened in a work-related event but did not pursue Worker’s Compensation Benefits. Thereafter, he returned to his same job working full duty with no formal restrictions or accommodations although the claimant testified to some self-accommodating behavior to avoid further injury. Subsequently, in 2004, he sustained a right sided inguinal hernia that was not work related.

In his Award, the Judge stated that the burden of proving entitlement to compensation is on the claimant. In this case, the claimant was alleging that he was PTD due to a combination of injuries. To establish Fund liability, the claimant must demonstrate that the primary injury combined with the prior qualifying injury renders the claimant unemployable in the open labor market. The Judge concluded that the prior injuries did not qualify as preexisting disabilities. When the claimant returned to work after the 1999 injury, he returned to work full time with no restrictions. Furthermore, prior to the primary 2015 work injury, the claimant testified that he engaged in outdoor hobbies including bicycling 8 to 10 miles at a time twice a month, as well as hiking and other activities. The Judge found that the claimant did not meet his burden to establish liability of the Fund for PTD.

HOLDING:  The Commission affirmed the Judge’s Award and decision but corrected his analysis with a supplemental opinion. The Commission noted that for there to be Fund liability, the first analysis is to determine the degree of disability from the last work-related injury. If that last work-related injury, independent and alone, renders the claimant PTD, neither the number of preexisting conditions nor their degree of disability is relevant and there is no Fund liability.

For that reason, the Commission found that the claimant failed to meet his burden of proof to establish liability of the Fund in this matter. Specifically, the claimant’s last accident of May 6, 2015, and the limitations and restrictions, including claimant’s need to recline multiple times per day up to 7 hours per day as a result of the last accident alone, and in isolation, are the most significant factors which rendered the claimant PTD as a result of the primary injury.

“Right to Control” Establishes Employment

Reyes v. Indios Painting, Injury No. 20-100084

FACTS:  At the time of the Hearing, the sole issue to be resolved was whether there was an employer/employee relationship between the claimant and Indios Painting.

The claimant alleged that she worked as a painter for Indios Painting and was hired approximately three months prior to the accident date of May 11, 2020. There is little dispute that on May 11, 2020, the claimant was involved in a serious motor vehicle accident. Mr. Pacheco testified deposition that he previously owned and operated Indios Painting which was operated out of his home and that all employees of Indios Painting were not engaged in the actual business of painting with the exception of occasional touchup work. Also, he was not the owner of the van in the motor vehicle accident on the day in question. However, in the testimony presented, including that of Mr. Pacheco and the claimant, it describes oral contracts entered into with Indios Painting through Mr. Pacheco with various subcontractors including Wilder Landaverry.

The facts also showed that Wilder, as a subcontractor of Indios Painting, picked up the claimant and drove her and others to the job site and returned them at the end of the day. This exercise of the control and the nature of going and coming to jobs and being in a vehicle arguably owned and controlled by Indios Painting at the time of the accident satisfied the right to control test.

HOLDING: The Judge concluded that the claimant was an employee because she was employed by a subcontractor of Indios Painting and presumably the subcontractor possessed no worker’s compensation insurance. By law the statutory employer would step into the shoes for an uninsured subcontractor and for that reason, the Judge found that Indios Painting was the statutory employer of the claimant.

The statute regarding statutory employment states: “Any person who has worked on under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employee and should be liable under this chapter to such contractor, his subcontractor, and their employees when injured or killed on or about the premises of the employer while doing work which is in the usual course of business.”

The evidence showed that Indios Painting hired subcontractors, directed and controlled where they worked, and provided the materials to allow them to perform that work. Also, the accident occurred in an Indios Painting van filled with painting supplies and equipment in which the claimant was picked up by Wilder and transported to the job. Therefore, the Judge found that Indios Painting was the statutory employer of Wilder Landaverry.

The employer/insurer appealed, and the Commission affirmed the Judge’s Award.

Must Consider “Usual Wages From Similar Services” For Volunteer Workers

Hayes v. City of El Dorado Springs, Case No. SD37841 (Mo.App.2024)

FACTS: The Commission awarded Susan Hayes (Wife) $40.00 per week in benefits for the death of her husband, Russell Hayes (Husband) who died while working as a volunteer fire fighter for the City of El Dorado Springs, Missouri. Wife appealed the decision.

Husband served as a volunteer firefighter and EMT for several decades. In 2018, he was fatally injured. Employer admitted that Husband and Wife were entitled to benefits. The only dispute was the amount of Wife’s weekly death benefit.

The only witnesses to testify at the Hearing were Wife and her two expert witnesses, a Lieutenant firefighter and Mr. Eldred, a vocational expert. According to Wife, Husband was on call 24 hours a day as a volunteer fire fighter for employer. Except for working nights as an in home aid, Husband would stop what he was doing to respond to calls. If the calls required Husband to act in some fashion, he was paid $10 per response inside the city limits and $20 per response outside the city limits. But if no action was required, his pay was reduced from $10 to $4 and from $20 to $6.

Mr. Eldred’s report included wage data for firefighters generally, including the mean annual salaries for full time firefighters nationally, within Missouri and within southwest Missouri along with a general firefighter job description as well as the employer’s volunteer firefighter job description.

The employer presented exhibits including a wage statement for Husband, Husband’s personnel file, the employer’s job description for volunteer fire fighters, Husband’s historical pay information, and a wage statement for the employer’s fire chief.

At Hearing, the ALJ found that while Husband was paid for per call responded to, the nature of responding to emergency calls was unpredictable. Also, the ALJ dismissed the testimony of Mr. Eldred as that testimony asked for an assumption that the services of a full-time career firefighter and by a rural volunteer firefighter were similar. Therefore, the ALJ concluded that there was no wage evidence that was introduced. Therefore, since Husband's compensation never exceeded $40 per week the ALJ concluded that the statutory minimum of $40 per week was appropriate. The Wife appealed and the Commission affirmed.

HOLDING: On appeal, Wife contends the Commission misapplied the law in determining Husband’s weekly wage. The Court reversed the Commission’s Award and remanded the case for further proceedings consistent with their opinion.

The Court stated that when the Commission found that Wife presented evidence of the “usual wage” of firefighters, they did not compare the services provided by such firefighters to services provided by Husband as a volunteer firefighter to determine whether those services are “similar” as required by Section 287.250.1 (6) which states that 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.

The Court stated it was clear that the Commission did not consider the testimony of Wife’s expert testimony that as a general rule most firefighters have similar job expectations or that the job description of a firefighter and a volunteer firefighter overlapped.

The Court concluded that the plain language of Section 287.250.1 (6) clearly allows for a wage to be calculated for an employee who earned very little or even “no wage” by utilizing the “usual wage” paid to others. The Commission’s Award was revered and remanded for the Commission to determine whether 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).