Friday, November 10, 2017


By Attorney Dennis Kurth
Snow, Carpio & Weekley

Volunteers are generally not “employees” and, therefore, are not covered by the workers’ compensation law if they are injured on the job.  There are, however, statutory exceptions to the rule for volunteer fireman and policemen, DPS reserves, sheriff’s posse members, voc rehab clients of DES, national or State guard or militia members, Game and Fish reserve members and emergency search and rescue workers.

Although the Arizona workers’ compensation statute seems to be clear as to who is a volunteer and who is not, every great once in a while a dispute arises when a putative volunteer gets hurt on the job and files a claim for benefits.  Litigation over those disputes sometimes results in an appellate opinion that provides some definitive guidance for workers’ compensation practitioners.

The most recent such appellate opinion involved a teacher who was sent by a local foundation to teach English in Africa (Cote d’Ivoire) where she was seriously injured in a bus accident while on a work-related journey.

The foundation for which the claimant worked was a 501c3 non-profit organization focused on adult literacy in African countries.  The claimant had worked for the foundation on a prior assignment in Africa without incident.  After several years at a regular job in the States, she was called by the foundation again and took the assignment on which she was injured.

In a local one-week orientation program prior to departure, the claimant was told that she was being engaged strictly as a volunteer and signed a Participation Agreement to the same effect.  In it, she acknowledged that she would receive a nominal living stipend, not a salary, and some funds to cover visas, inoculations and other travel expenses.  Once settled in Africa, she received a monthly stipend ($850) to cover her living expenses, transportation and incidental expenses. The stipend was not reportable to the IRS as taxable income.

The claimant’s workers’ compensation claim was, of course, denied, and, by the time she got before the ALJ, she claimed, unconvincingly, that she did not understand the nature of her status as a volunteer and believed that she was an employee.  Because of her education, prior participation in the program, many years of teaching experience and, of course, the documents she had signed, the ALJ did not find her credible or her claim compensable.  She appealed.

Not surprisingly, the Arizona Court of Appeals upheld the ALJ’s decision in a published opinion that provides guidance for evaluating similar but, hopefully, more meritorious claims in the future.
In order to be an “employee” eligible for coverage under the workers’ compensation law, the Court said, there must be a contract of hire, express or implied, between the parties in which the worker agrees to work for the employer for some type of payment.  The payment does not need to be in the nature of a traditional salary but must be something of value.

The key requirement is that the putative employee expects to receive and does receive something of value as payment for his/her services.  The totality of the facts regarding the relationship between the employer and the claimant, including their intentions and expectations, must be examined according to the Court.  A volunteer does not expect to be paid a salary or wages.

The final important factor for the Court of Appeals in affirming the ALJ’s award was that the statue created several specific exceptions to the non-coverage rule for volunteers and the claimant did not fit any one of them.  Consequently there was no legislative intention to cover her situation.

While this claimant’s efforts to obtain workers compensation coverage for an injury were doomed from the inception, the Court of Appeal’s opinion provides valuable guidance for more deserving cases that are certain to appear before the Industrial Commission in the future.  One such case involves bartenders at an American Legion Post who, the Post claims, are volunteers because they are not paid any hourly wage or salary but are allowed to keep all tips which were considerable.  It remains to be seen how the Industrial Commission will apply the Court’s opinion to such facts.

For more information on Workers' Compensation or Social Security Disability, please contact Snow, Carpio & Weekley toll-free at 855-325-4781 or visit our website at We serve the entire State of Arizona and have offices located in Phoenix, Tucson, Yuma and Lake Havasu City.

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