The New Jersey Supreme Court has ruled that the lack of outside employment is not just cause to withhold temporary disability benefits from a volunteer firefighter who was injured in the line of duty.
In Kocanowski v. Township of Bridgewater, the justices overturned a ruling by the Appellate Division that a 15-year volunteer firefighter was ineligible to receive temporary disability benefits because she did not have a paying job at the time of her injury. The appeals court said in that March 2018 decision that eligibility for temporary benefits required proof of lost wages.
The Supreme Court said Tuesday that the language of the relevant statutes were unclear but the legislative intent of the law was to provide disability coverage to volunteer firefighters.
According to documents, the plaintiff, Jennifer Kocanowski, was a longtime volunteer firefighter for the Finderne Fire Department in Bridgewater. During her years of service, she generally held outside employment in jobs that included working as a nanny and a home health care aide, but in late 2013, she left her outside employment and took a leave from firefighting to care for her ailing father.
In July 2014, after her father’s death, she returned to volunteer firefighting but did not resume outside employment. In March 2015, while responding to a multialarm fire, Kocanowski slipped on ice. She broke the upper shaft of her right fibula, severely injured her ankle, and tore several ligaments. She underwent surgery for her injuries, and doctors later discovered two fractures in her foot, a torn meniscus in her arthritic left knee, damage to the peroneal nerve of her right leg, and impairment to her back, all sustained in the firefighting accident, documents said.
She underwent another surgery and intensive physical therapy, but continues to suffer problems with her back, legs and feet, which she says impede her ability to return to firefighting or her previous outside employment, she claimed.
A judge in the Division of Workers’ Compensation denied Kocanowski’s application for temporary benefits in March 2016. The ruling acknowledged that N.J.S.A. 34:15-75, which discusses benefits for firefighters and other first responders, awards compensation at the maximum rate to volunteer firefighters injured in the course of their duties. But the workers’ compensation court found that temporary disability benefits are intended as a wage replacement, citing language in another part of the workers’ compensation statute, N.J.S.A. 34:15-38.
Kocanowski appealed, and the Appellate Division affirmed the workers’ compensation judge’s determination that pre-injury outside employment is a necessary predicate to awarding temporary disability benefits to volunteer firefighters.
In Tuesday’s decision, the Supreme Court noted that the Legislature first required in 1931 that every municipality and fire district provide compensation insurance for volunteer firefighters. The Legislature has also exempted volunteer firefighters from “militia duty in time of peace,” has granted exemptions from jury duty for certain volunteer firefighters, and has granted firefighters the right to special licenses to “hawk, peddle and vend” goods or merchandise.
In recognition of the protections and benefits extended to volunteer firefighters, courts have ruled that a volunteer firefighter injured while playing for his department’s baseball team was injured in the line of duty, and ruled that a 93-year-old volunteer firefighter who was injured while tending a firehouse stove was performing a public firehouse duty, the justices noted.
“It would be incongruous and inconsistent, after years of expanding protections and exemptions for volunteer firefighters, for the legislature to abruptly limit the class of volunteer firefighters who qualify for temporary disability from any volunteer firefighter who had ever been employed to only volunteer firefighters employed at the time of injury,” Justice Walter Timpone wrote for the court.
The attorney for Bridgewater argued that N.J.S.A. 34:15-38, which provides a method for calculating temporary disability, requires all temporary disability claimants to provide proof of outside employment to be eligible for temporary benefits. Bridgewater cited that statute’s references to the date an employee is “first unable to continue at work” and is “able to resume work” as evidence that claimants must demonstrate proof of outside employment to receive benefits.
But the Supreme Court said “nothing in either the plain language of the statutes or their legislative histories” indicate such an intent. N.J.S.A. 34:15-38 existed alongside the pre-1952 version of N.J.S.A. 34:15-75, which allowed volunteer firefighters who were unemployed at the time of their injury to receive benefits, the justices said. “N.J.S.A. 34:15-38 did not bar benefits then. There is no reason to think it does now, after the amendment to N.J.S.A. 34:15-75 which loosened restrictions and provided greater protections to volunteer firefighters,” the court said.
Kocanowski’s lawyer, Middlesex solo Galen Booth, said his client will now become eligible for retroactive pay of $855 per week for the period she was under treatment for her injuries. That compensation rate represents 70 percent of the average weekly wage in the state, as determined by the state Department of Labor, according to Galen.
Because she was unable to work, Kocanowski began collecting welfare and food stamps and had to relocate, he said.
“This now establishes for the benefit of first responders that if you are injured in the line of duty, but also happen to be unemployed, you will receive temporary disability benefits and not risk ending up as a ward of the state.”
Bridgewater, which is self-insured for workers’ compensation risk, was represented by Jennifer Cottell of Capehart Scatchard in Mount Laurel. She said the ruling could be “a disaster financially” for municipalities where college students serve as volunteer firefighters.
If the court “had an issue with the intent of the Legislature, they should have passed it back to the Legislature,” she said.
“I think municipalities are going to have to beg the Legislature to change the law, to make it more clear as to what their intent was. I don’t think their intent was to pay unlimited benefits to somebody who wasn’t earning an income the day before she was injured or the day after she was injured,” Cottell said.