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New Jersey Supreme Court Awards Lost Wages to Volunteer with No Paying Job

In a decision that will cause significant hardship to many municipalities in New Jersey, the state’s highest court ruled that a municipal volunteer who had no paying job is entitled to wage replacement benefits at the highest statutory rate when injured, despite the fact that there is no actual lost time from any paying employment. This decision will have a big impact on New Jersey, where most of the 565 small towns and municipalities have various volunteer organizations providing ambulance and firefighter service. While the decision falls in line with the wage-replacement benefit for volunteer first responders in neighboring New York and Pennsylvania the ruling will have a big impact on the highly-taxed small towns in New Jersey where this is a reversal of more than 100 years of precedent.

In Kocanowski v. Township of Bridgewater, decided February 19, 2019, the New Jersey Supreme Court found that a volunteer firefighter does not have to be employed to be eligible for temporary disability benefits under the New Jersey Workers’ Compensation Act.

Trial Court Decision

The Workers’ Compensation Law Judge (trial level) denied the application for temporary disability (wage-replacement) benefits. The trial judge found that temporary disability benefits were intended to be a wage-replacement and that Kocanowski was not entitled to these benefits because she was not employed at the time of her accident. That decision was affirmed by the Appellate Division, which ruled that “although a volunteer firefighter is entitled to temporary benefits at the maximum rate . . . there first must be an entitlement by the volunteer to payment of temporary benefits. That payment depends on proof of lost wages.”

Supreme Court Reasoning

The Supreme Court took the matter on appealing reversed the trial judge and the Appellate Division decision.

First, and to justify this precedent-setting decision, the Supreme Court found that the statute was “unclear” despite decades of precedent to the contrary. The Court accepted “amicus curiae” (“friend of the court”) brief filed by two plaintiff’s lawyer groups (The New Jersey Association for Justice and the New Jersey Council on Safety and Health). In a series of passages sure to be seized upon by future appellants, the Court found that that requirement for temporary disability benefits be based on “weekly salary or compensation conclusively presumed to be received” (N.J.S.A. 34:15-75) was unclear. Obviously, it is very clear: the statute intended that payment of compensation be based on wage or salary that the claimant was obtaining outside of the volunteer capacity. A comprehensive reading of the statute yields that obvious conclusion.

However, using this as grounds to declare the statute “ambiguous” the Court then found that the statute “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.” In doing so the Supreme Court (Justice Timpone, writing for the Court) found that Section 38 of the statute, which expressly limits compensation (however calculated) to those employees who can not continue at work or resume work, does not apply to volunteer firefighters.

Practical Results

As a result of this decision, the injured firefighter is entitled to $855 per week in lost time benefits, despite the fact she held no gainful employment outside of her volunteer activities and lost no time from any paying job.

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For more than 20 years we have represented insurance carriers, self-insured employers, third party claim administrators, and employers before New Jersey’s Division of Workers’ Compensation. Our founding partner, Gregory Lois, is co-author of the LexisNexis “Practice Guide to Workers’ Compensation in New Jersey” (2017, ISBN:9781632838735) and served as Law Clerk to Hon. Joan Mott, Administrative Supervisor of Workers Compensation.

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