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Appellate Division Holds Statutory Volunteers Must Prove Actual Wage Loss In Order to Obtain Temporary Disability Benefits

By on December 13, 2017 in Benefits with 0 Comments

After decades of confusion over the issue of paying temporary disability benefits to volunteer firefighters who have no outside jobs, practitioners finally received an answer from the Appellate Division in Kocanowski v. Township of Bridgewater, A-3306-15T2, (App. Div. December 11, 2017).

The case involved a volunteer firefighter with the Finderne Fire Engine Company in Bridgewater Township.  Petitioner was responding with her company to a multi-alarm fire in March 2015 when she slipped and fell on ice, breaking her right fibula. The injury led to several surgeries over the next year.  Petitioner had not worked since 2013 when she began taking care of her father, who had serious health problems. In 2014, she resumed working as a volunteer firefighter in an unpaid capacity.

Petitioner filed a motion for medical and temporary disability benefits.  She asserted that she was entitled to temporary disability benefits at maximum rates under N.J.S.A. 34:15-75. The Township argued that no temporary disability benefits were required because petitioner really had no wage loss. She had not worked since 2013.  The Judge of Compensation ruled for respondent, and petitioner appealed.

The Appellate Division methodically explained why the Judge of Compensation was correct in dismissing the claim for temporary disability benefits.  First, the Court cited to N.J.S.A. 34:15-38, which states that temporary disability benefits are due the day that the employee is first unable to continue at work by reason of the accident.  Petitioner argued that Section 75 creates a different right for volunteer firefighters because it states that compensation for any volunteer fireman must be based upon a weekly salary or compensation that is conclusively presumed to be the maximum allowed under the New Jersey Workers’ Compensation Act.

The Court agreed with respondent that there must first be proof of a wage loss before Section 75 is referenced.

Kocanowski’s claim is at odds with the underlying reason for awarding temporary disability, which is to replace lost wages.  It is at odds with the method for calculating temporary disability, which is to consider weekly wages.  When the legislature enacted the provisions that addressed firefighters and others, it did not make any special provisions for calculating temporary disability in a different way.

The Court ruled as follows:  “We agree with the compensation judge that although a volunteer firefighter is entitled to temporary benefits at the maximum rate and that the seven-day waiting period does not need to be served, there first must be an entitlement by the volunteer to payment of temporary disability benefits.  That payment depends of proof of lost wages.”  In other words, one does not get to  the maximum benefit rate contained in Section 75 unless the volunteer can prove an entitlement to temporary disability benefits.

This case was expertly handled by Jennifer A. Cottell, Esq. of Cooper, Cottell & Taylor, LLC.  Ms. Cottell not only won the case at the Division level and on appeal but she successfully defeated an amicus brief filed by COSH on behalf of the petitioner.



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. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

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 Trenton, 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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