Volunteer firefighters perform all sorts of duties, and only some of them are related to emergency response. Others frequently involve activities such as maintaining department buildings and equipment. When injuries occur while performing these duties, questions can arise as to whether the volunteers are entitled to workers' compensation coverage. This is exactly what occurred in the case of Douglas Evanuska et al. v. City of Danbury et al. No. AC 27263, Appellate Court of Connecticut (2007).
Douglas Evanuska and Paul Williams were active volunteer firefighters for the Germantown Hose Company in Danbury, Conn. On Oct. 19, 2002, they attended a work night that was organized to make necessary repairs on the roof of the station house. Unfortunately, they were injured when the scaffold on which they were standing collapsed, causing them to fall some 15 feet to the ground.
Before the scaffolding collapsed, they were receiving directions from the chief of the fire company with regard to how to go about reroofing the building, notwithstanding that they had a working knowledge, if not expertise, in construction or a related field. They had been invited by the fire company's board of managers to volunteer their time to fix the roof. The board of managers is responsible for the administrative and business functions of the fire company and has no responsibility for firefighting activities.
Evanuska and Williams subsequently filed claims for workers' compensation benefits, but the hearing commissioner concluded that they were not engaged in fire duties when they were injured and denied their claims. They appealed this ruling to the Appellate Court of Connecticut. In the appellate court, they argued that they were indeed engaged in fire duties at the time of the injury for two reasons. First, they said that they were expected to participate in the work night and, second, that they were given orders by the fire chief as to how to proceed with the repairs once at the event. They argued that as a result, they were injured while performing a “duty ordered to be performed by a superior or commanding officer.”
Connecticut General Statutes Section 7-314 (a) provides that “active members of volunteer fire departments … shall be construed to be employees of the municipality for the benefit of which volunteer fire services … are rendered … and shall be compensated in accordance with the provisions of chapter 568 for … injury incurred while in training for or engaged in volunteer fire duty….” [Emphasis added.]
Section 7-314 (a) then defines the term “fire duties” to include “duties performed while at fires, while answering alarms of fire, while answering calls for mutual aid assistance, … while directly returning from fires, while at fire drills or parades, while going directly to or returning directly from fire drills or parades, while at tests or trials of any apparatus or equipment normally used by the fire department, while going directly to or returning directly from such tests or trials, while instructing or being instructed in fire duties, … while answering or returning from fire department emergency calls and any other duty ordered to be performed by a superior or commanding officer in the fire department….” [Emphasis added.]
The court began its review by emphasizing that the statute provides the workers' compensation commission with limited jurisdiction over active members of volunteer fire departments. The plaintiffs must prove that the activities they were engaged in at the time they were injured fell within the statute in order to qualify for the “exceptional benefits” therein. Consequently, volunteer firefighters, unlike other workers, are brought within the scope of the act only when they are injured while performing or training to perform fire duties as defined in Section 7-314 (a). The court further noted that it could not, “by construction, supply omissions in a statute or add exceptions or qualifications, merely because it opines that good reason exists for so doing…. In such a situation, the remedy lies not with the court but with the General Assembly.”
The court went on to say that when construing a statute, its fundamental objective was to ascertain and give effect to the apparent intent of the legislature. In other words, it must seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of the case, including the question of whether the language actually does apply. The court then must consider the text of the statute itself and its relationship to other statutes. It went on to observe that if, after examining the text and considering the relationship, the meaning of the text was plain and unambiguous and did not yield absurd or unworkable results, then extra-textual evidence of the meaning of the statute could not be considered.
The case then turned on whether the plaintiffs were ordered to attend the work night. The court, quoting from Webster's Third New International Dictionary, then said that the plain meaning of the verb “to order” generally means “to command … to require or direct (something) to be done.” The court said that the hearing commissioner had concluded that the plaintiffs were not injured while engaged in fire duties based on the fact that “no member of the work party was ever ordered to be at the work site.” He concluded that “it was truly a noble gesture on the part of all who participated in the volunteer effort, but it was voluntary.”
The plaintiffs argued that the word “order” as used in the statute should be interpreted as meaning “command, bid or prescribe” and that “nothing could be considered an order in a volunteer firefighter context” if the plaintiffs were not ordered to perform a duty in this case. Specifically, they argued that the commissioner's conclusion was improper, given his factual findings that attendance at work nights was a duty expected of all fire company members, and they were given orders by the fire chief as to how to perform the repair work once at the event.
In fact, the fire company's application for membership listed participation in company functions, such as work nights, as a duty expected of a volunteer firefighter. The court, however, disagreed with the plaintiffs' arguments.
The plaintiffs' first argument was that their attendance at work nights was specifically delineated in the fire company's membership application as a duty expected of all volunteer firefighters in the fire company. The court disagreed, saying that a volunteer firehouse organization's expectation that members attend and participate in work nights did not mean that such an activity is a fire duty as defined by the statute.
The court said that the statute specifically conditions eligibility for workers' compensation benefits on the nature of the duties being performed, and that the statute provides a list of qualifying activities. Because the legislature specifically required that the activities covered be fire duties and enumerated a list of particular duties that are included within the definition of that phrase, the court concluded that the legislature did not intend for all duties expected of volunteer firefighters to be covered under the workers' compensation act. The definition of fire duties under the statute, as opposed to activities firefighters are expected to perform pursuant to the company's application for membership, determines which duties entitle volunteer firefighters to workers' compensation benefits.
The plaintiffs, however, argued that because they were volunteers, the expectation that they attend the activity is the equivalent of being required or commanded to be there. While the court acknowledged that this argument had a certain practical appeal, it rejected it, saying that there is a distinction between an expectation and a command. Thus, whether the plaintiffs were ordered, meaning commanded or required, to attend and participate in the event is controlling, not whether they were merely expected to be there.
The hearing commissioner explicitly found that the plaintiffs were not ordered to attend the work night. The commissioner reached this factual determination even after hearing testimony that disciplinary action could have resulted had the plaintiffs not attended the activity and notwithstanding the finding that all firefighters in the fire company were expected to attend the work nights.
The hearing examiner may have placed greater weight on a written statement from the chief of the fire company. The chief wrote that “[participation in the event] was all voluntary, at no time were the men who showed up ordered to be there…. My understanding was that no one felt obligated to do it. Again, I never told any of the volunteers they had to be there.” He further wrote that “the Board of Managers have [sic] no authority to order volunteers to do anything. The only place we can order someone is at the scene of an emergency.”
Consequently, the court deferred to the commissioner's factual findings that the plaintiffs were never ordered to attend the work night.
The court next addressed the claim that the plaintiffs should be entitled to benefits because they received orders or directions from the chief of the fire company at the time they were making repairs. The court was not persuaded by this argument, saying that the hearing commissioner had found that the board of managers organized the event and invited the plaintiffs to attend. The court noted that the hearing commissioner had further found that the board of managers had no authority over the members of the fire company, as it was solely responsible for the administrative and financial functions of the station house.
The plaintiffs did not contend that the chief ordered them to attend and participate in the work night, but only that they were ordered as to how to go about the work once they had volunteered. The court noted that there is a clear distinction between initially being ordered to participate in an activity and receiving orders or directions, having already volunteered.
The court finally concluded that the plain and unambiguous meaning of the phrase “any other duty ordered to be performed by a superior or commanding officer in the fire department” did not include the plaintiffs' voluntary participation in a work night organized by the administrative body of the firehouse. The court therefore ruled that the plaintiffs were not injured while engaged in fire duties as defined in the statute, and therefore were not entitled to benefits under the workers' compensation act.
While the court went on to recognize the important service provided by volunteer firefighters and to share the hearing commissioner's view that the conclusion reached in this case was unfortunate, it also noted that the facts and law compelled the result.
Some lessons that we may draw from this case include:
- Consult with your department attorney to determine the coverage of workers' compensation laws in your state.
- Check your department's insurance policies to learn if the coverage should be modified.
- Make sure that your policy manual is clear regarding what official duties are required of members.
Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He is legal counsel for the Wisconsin State Firefighters Association and the National Volunteer Fire Council. Stittleburg is also currently the chairman of the NVFC and a director of the National Fallen Firefighters Foundation. He is the secretary of the National Fire Protection Association and a member of the NFPA Occupational Safety and Health Technical Committee that drafted NFPA 1582.