Volunteer firefighter awarded minimum compensation rate.
In a 2-1 decision with Commissioner Curls dissenting, the Missouri Labor and Industrial Relations Commission affirmed a decision of Judge Kevin A. Elmer to award the minimum compensation rate of $40 per week to the widow of a volunteer firefighter that died on the job. He was paid per call at a rate of $10 for a response within city limits and $20 for a response outside of city limits. Applying §287.250 in descending order, the Commission found that because Employee's compensation was not fixed by any amount of time or output as outlined in §287.250.1(1)-(4), but was instead paid per call in an unpredictable manner, §287.250.1(6) applied which states, "[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." Employee's dependent presented evidence of wages earned by the Fire Chief, but because the Fire Chief was paid an additional salary, this was not sufficient to establish the usual wage for similar services by a paid employee and no evidence was presented comparing the duties of the Fire Chief to that of the individual volunteer firefighters. Evidence of the average wage of career firefighters in the State of Missouri and in southwestern Missouri rural fire departments was presented but rejected because "the plain text of RSMo §287.250.1(6) requires both that the services rendered be similar and and that they are 'rendered by paid employees of the employer or any other employer'" and required an assumption that the services rendered by a full-time career firefighter and by a rural volunteer are similar which the Court cannot assume, In the absence of more specific evidence, the pay of a neighboring full-time firefighter is not indicative of pay of a volunteer firefighter. Because the average weekly wage could not be fairly and justly determined using §287.250.1-3, the statutory minimum for weekly compensation of $40 was awarded. Hayes v. City of El Dorado Springs, Injury No. 18-078194, decided October 24, 2022.