Request By:
John H. Sage
Suite 348, Holiday City Office Park
200 High Rise Drive
Louisville, Kentucky 40213
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
You pose three questions concerning firefighters of the Okolona Fire Protection District.
Your first question deals with a firefighter who has an 80% disability caused by an injury suffered in military service. You want to know whether the disability will subject the District to any liability should the firefighter be injured.
Answer: The firefighter is automatically covered under Workmen's Compensation. KRS 342.640(3) covers volunteer firemen performing official duties. The state voluntarily pays the premium of such firefighters, although the statute puts them in the employ of the political subdivision. If he is injured in the scope of his duties, he would be covered for workmen's compensation whether he had a prior injury or not. With an active prior disability, the employer (or its insurance carrier) is not responsible for that part of the present injury (KRS 342.120(3)). It is only responsible for the degree of injury which resulted while in its employ. If prior and subsequent injuries together are greater than the addition of each injury alone, the Special Fund picks up the aggravating factor of the combination (KRS 342.120(4)).
Example: A had a prior active left hand disability of 20%. While employed with X, A injures his right hand, which by itself would be 30% or a total of 50%. Because both hands are disabled, A now has a 100% disability. Liability is distributed as follows: A absorbs the 20% prior disability (or he was previously paid for it, if it occurred under a statutory payment plan, such as workmen's compensation, social security, or veterans disability pension). The employer pays the 30% disability which occurred while he was employed and the Special Fund pays 50%, the excess aggravating factor of the addition of prior and present disabilities.
A cannot sue his employer at common law for his job-related injury because of KRS 342.690, unless the employer fails to secure compensation insurance or be a self-insurer, or the employee opts out of workmen's compensation under 342.650(6) and rules of the Workmen's Compensation Board.
The only effect of the employee's prior injury is possibly to make him more susceptible to a subsequent injury on the job. But, again, he, the employee, bears the burden of that prior injury in determining the apportionment of a present disability.
Your second question deals with possible liability should the District refuse to employ a handicapped firefighter.
Answer: KRS 207.150 prohibits the refusal to hire or otherwise discriminate against a handicapped worker "unless such handicap restricts that individual's ability to engage in the particular job or occupation for which he or she is eligible. . . ." It may be that certain handicaps might prevent a firefighter from performing his job and certain kinds would not. It becomes a factual situation.
Your third question is:
"Will the State Workmen's Compensation extend to a firefighter under disability in the event of an injury as a result of firefighter's activities?"
That question has been answered by the first answer.
For your future guidance in presenting questions to this office and in order to aid our accurate response, Department of Law Regulation 40 KAR 1:010, Sections 2, 3, and 4 provide:
"Section 2. In order that this office might more expeditiously and correctly advise the various departments, boards, commissions, agencies and local officials of the Commonwealth, who from time to time submit questions for its consideration, all requests for opinions in the future will be in writing and will include a full and complete statement of the facts giving rise to the question, and reference to the relevant provisions of the Kentucky Revised Statutes where known.
"Section 3. Questions submitted by departments, boards, agencies and commissions of the Commonwealth, having house or contract counsel, will also submit references to the appropriate constitutional and statutory provisions, cases and departmental regulations.
"Section 4. Commonwealth, county and city attorneys and city prosecutors will also cite the appropriate constitutional and statutory provisions, case law and department regulations. "