A Capehart Scatchard Blog

New Jersey Supreme Court Rules That Volunteer Firefighter Is Entitled To Maximum Temp Benefits Even Without Proof Of Employment Or Lost Wages

By on February 22, 2019 in Court Rulings with 1 Comment

Jennifer Kocanowski, a member of the Finderne Fire Department in the Township of Bridgewater, was injured in March 2015 while carrying equipment in response to a multi-alarm fire.  She fractured her fibula, tore ligaments in her ankle, and injured her back.

Prior to the injury, Kocanowski had not worked for over a year.  She had previously worked in 2013 as a nanny and a home health aide but took a six month leave from volunteering to care for her ill mother after her father’s death.  She returned to volunteer firefighting in July 2014.  However, she did not resume her prior outside employment. Her injury left her with permanent partial impairment.

The issue presented in this case was whether the Township owed Kocanowski temporary disability benefits following her injury in March 2015.  Kocanowski argued that she was entitled to temporary disability benefits based on the maximum rate set forth in N.J.S.A. 34:15-75, the provision dealing with rates for volunteer firefighters and EMTs. The Township argued that she was not entitled to temporary disability benefits because she had no lost wage to replace.  The Judge of Compensation and the Appellate Division both held that Kocanowski was not entitled to temporary disability benefits at all since she had not worked in over a year prior to her injury and had no offer of employment.

The New Jersey Supreme Court issued its decision on February 19, 2019.  The decision focused on the legislative intent to encourage volunteerism in passing N.J.S.A. 34:15-75.  This statute reads:

Compensation for injury and death, either or both, of any volunteer fireman . . . (or) emergency management volunteer doing emergency management service . . . shall:

  1. Be based upon a weekly salary or compensation conclusively presumed to be received by such person in an amount sufficient to entitle him (or her) or, in the event of his (or her) death, his (or her) dependents, to receive the maximum compensation by this chapter authorized. . .”

The Supreme Court reversed the decision of the Appellate Division:  “As such, we find N.J.S.A. 34:15-75 authorizes all volunteer firefighters injured in the course of performing their duties to receive the maximum compensation permitted, regardless of their outside employment status at the time of the injury.”

The Court rejected the argument of the defense that all claims for lost wages must meet the test set forth in N.J.S.A. 34:15-38.  Defense argued that the words “by this chapter authorized” at the end of N.J.S.A. 34:15-75 refers to the entire workers’ compensation statute.  The provision dealing with temporary disability benefits is N.J.S.A. 34:15-38.  That section requires temporary disability benefits be paid from the day the employee is first unable to work due to the accident up to the first working day that the employee is able to resume work.  Defense suggested that this petitioner could not meet the test in N.J.S.A 34:15-38 because she had no work.

The Court responded by pointing out the prior to the passage of N.J.S.A. 34:15-75 in 1952, volunteer firefighters who were unemployed were entitled to temporary disability benefits even though N.J.S.A. 34:15-38 existed.  The rules for all other employees were not applied to volunteers.  In essence, the Court ruled that the New Jersey Legislature clearly never intended statutory volunteers to be subject to the law that applies to all other employees in New Jersey.  The reason for this exemption was to encourage volunteerism.

The Court’s decision failed to address one important question raised in oral argument, namely whether this ruling would mean that an 18-year-old high school volunteer firefighter injured in 2019 with no outside employment would be entitled to $921 per week while receiving authorized treatment and attending full-time high school classes.  The decision in Kocanowski suggests that this high school volunteer must be paid $921 per week while actively treating until reaching maximal medical improvement, notwithstanding the obvious windfall to the student and the cost to the municipality.


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Hamilton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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