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Workers’
Compensation Board
OPINION ENTERED: August 4, 2017
CLAIM NO. 201466117
KY PERSONNEL CABINET/ PETITIONER
WARFIELD VOLUNTEER FIRE DEPARTMENT
VS.
APPEAL
FROM HON. ROBERT L. SWISHER/DOUGLAS W. GOTT,
ADMINISTRATIVE LAW JUDGE
GREGORY ALLEY
AND HON ROBERT L. SWISHER/DOUGLAS W. GOTT,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Kentucky Personnel
Cabinet/Warfield Volunteer Fire Department (“Warfield”) appeals from the March
10, 2017 Opinion, Award and Order rendered by Hon. Robert L. Swisher, formerly
Chief Administrative Law Judge (“Judge Swisher”), and the April 19, 2017 Order
rendered by Hon. Douglas W. Gott, Chief
Administrative Law Judge (“Judge Gott”) awarding
Gregory Alley (“Alley”) temporary total disability (“TTD”) and medical benefits. This appeal presents only the legal question
of whether a volunteer firefighter with no average weekly wage (“AWW”) is
entitled to an award of TTD benefits. We
affirm.
The facts relevant to this appeal are undisputed. Alley was working as a volunteer firefighter
on September 29, 2014 when he was injured.
He had no other employment at the time of his injury. Because there was no concurrent employment,
Judge Swisher determined Alley had no AWW and, therefore, was not entitled to
receive permanent income benefits.
Additionally, he noted Alley would not be entitled to permanent income
benefits because he did not have a permanent impairment rating. Judge Swisher then considered Alley’s
entitlement to TTD benefits:
While plaintiff may not be entitled
to an award of permanent
partial disability benefits,
he is entitled to temporary total disability benefits,
and the undersigned notes that those benefits were paid at the minimum
statutory rate of $153.81 per week from September 30, 2014 to February 9, 2015.
Plaintiff contends, however,
that TTD has been underpaid as to duration and that he is entitled to an
additional period of such compensation from the date it was terminated at least
through December 15, 2016, the date plaintiff resumed gainful employment. The
defendant/employer does not address this issue directly but simply indicates
that plaintiff has already been paid temporary total disability benefits and is
not entitled to an additional period thereof.
Judge Swisher then noted Alley returned to
employment on December 15, 2016 as a technician at Appalachian Power, where he
changes oil and tires on vehicles. Judge
Swisher further concluded Alley attained maximum medical improvement on January
15, 2016. As such, Judge Swisher awarded
TTD benefits from February 9, 2015 through January 15, 2016.
Warfield did not argue, before Judge Swisher, that TTD
benefits are not payable when the claimant has an AWW of zero. In a petition for reconsideration, Warfield
made the same arguments it now makes on appeal.
The ALJ overruled
Warfield’s petition for reconsideration as a re-argument of the TTD issue.
On appeal, the sole issue is whether an injured volunteer
fire fighter who has no concurrent employment, and therefore no AWW, is
eligible to receive TTD benefits.
Volunteer fire fighters are covered as employees under the Workers’
Compensation Act. KRS 342.630(3). For purposes of awarding an injured volunteer
fire fighter income benefits, the benefit, “shall be based on the average
weekly wage in their regular employment.”
Therefore, an injured volunteer fire fighter who has no regular
employment, and therefore an AWW of zero, is not entitled to permanent partial
disability benefits. See also Justice
v. Kimper Volunteer Fire Department, 379 S.W.3d 804 (Ky. App. 2012). See Highland Heights
Volunteer Fire v. Ellis, 160 S.W.3d 768 (Ky. 2005).
TTD benefits are income benefits, and
are calculated pursuant to KRS 342.730(1)(a) based on the claimant’s AWW. A minimum award of TTD benefits is set at 20%
of the state AWW. Alley’s AWW was zero,
a fact which is not contested. As such,
income benefits for his disability must be paid at no less than 20% of the
state AWW. Judge Swisher properly
calculated the award of TTD benefits. We
also note neither party has contested the date of maximum medical improvement
used to determine the period of TTD benefits.
We are constrained to follow the plain
language of the provisions of Chapter 342.
KRS 342.730(1) is unambiguous that an award of TTD benefits is 20% of
the state AWW. No exception is made
within the statute when the claimant’s AWW is zero.
Accordingly, the March 10, 2017 Opinion, Award and Order rendered by Hon. Robert L. Swisher, Administrative Law Judge, and the April 19, 2017 Order rendered by Hon. Douglas W. Gott, Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON GREGORY L LITTLE
1510 NEWTON PIKE, STE. 108
LEXINGTON, KY 40511
COUNSEL
FOR RESPONDENT:
HON DENNIS J KEENAN
79 MALL RD #C
SOUTH WILLIAMSON, KY 41503
ADMINISTRATIVE
LAW JUDGE:
HON DOUGLAS W. GOTT
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
