(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3306-15T2
Petitioner-Appellant, APPROVED FOR PUBLICATION
v. December 11, 2017
TOWNSHIP OF BRIDGEWATER, APPELLATE DIVISION
Argued June 6, 2017 – Decided December 11, 2017
Before Judges Messano, Suter and Grall.
On appeal from Division of Workers'
Compensation, Department of Labor and
Workforce Development, Docket No. 2015-29962.
Galen W. Booth argued the cause for appellant
(Law Offices of Galen W. Booth, attorneys;
Galen W. Booth and Peter Ventrice, of counsel
and on the brief).
Jennifer A. Cottell argued the cause for
respondent (Cooper, Cottell & Taylor, LLC,
attorneys; Jennifer A. Cottell, on the brief).
The Blanco Law Firm, LLC, attorneys for amicus
curiae New Jersey Advisory Council on Safety
and Health (COSH) (Pablo N. Blanco, on the
The opinion of the court was delivered by
Petitioner Jennifer Kocanowski appeals the March 30, 2016
order of the Division of Workers' Compensation (Division) denying
her claim for temporary total disability benefits. We affirm.
Kocanowski was a volunteer firefighter with the Finderne Fire
Engine Company in Bridgewater Township for more than fourteen
years. On March 6, 2015, when responding with her company to a
"multi-alarm fire," she slipped and fell on ice, breaking her
right fibula. Over the course of the next year, she had surgeries
to repair her fibula, foot and left knee. She also attended
physical therapy. She complained about pain in her lower back.
Although she did not specifically recall it, she thought she "must
have" landed on her "Scott pack" breathing apparatus, which she
was carrying on her back.
Kocanowski was not employed at the time of the accident. In
October 2013, she stopped working to help her ailing father, who
has since passed away. She did not "look for any type of work"
from then until the accident in March 2015. She was employed in
the past as a nanny and certified home health aide, but her license
lapsed when her father became ill. In July 2014, she resumed her
activities as a volunteer firefighter. She was not paid in this
capacity. She has not had any paid employment since October 2013.
Kocanowski testified at trial that since the March 2015 accident,
she has not been able to return to work as a volunteer firefighter.1
She did not believe she could "go back to nanny's work or home
health care work."
Kocanowski filed an employee claim petition against
respondent Township of Bridgewater (Bridgewater) in November 2015
seeking workers' compensation benefits for injuries to her "right
ankle and right lower leg; left knee; [and] low back," arising
from the slip and fall. In December 2015, she filed a motion for
temporary disability and medical benefits. Because she was an
injured volunteer firefighter, her application requested temporary
disability payments at the maximum weekly benefit amount, then
$855 per week. Bridgewater filed opposition, claiming that because
Kocanowski was not employed at the time of the accident, she was
not entitled to temporary disability payments.2
Trial was conducted by the Division on Kocanowski's motion
for medical and temporary benefits. Bridgewater stipulated only
that Kocanowski slipped and fell on ice when she was a volunteer
Because the issue on appeal concerns whether she is entitled to
receive temporary total disability benefits, we do not recount her
prior or subsequent injuries, surgeries, treatments or medical
Bridgewater also opposed her application for medical benefits
related to the back injury, claiming it was not related to the
slip and fall. That issue is not on appeal here.
firefighter and received medical treatment. Kocanowski and her
boyfriend testified; there was no expert testimony.
The workers' compensation judge denied Kocanowski's
application for temporary benefits. Although finding that
"petitioner's volunteer work is laudable and certainly entitles
her to both medical treatment and permanent disability for her
injuries," the judge denied the application for temporary
benefits. The judge stated, "The case law in New Jersey is clear,
petitioner must be receiving wages to merit receiving temporary
disability replacement for those wages." Kocanowski's application
for penalties under Amorosa v. Jersey City Welding & Machine Works,
214 N.J. Super. 130 (App. Div. 1986), also was denied. The March
30, 2016 order denied temporary benefits but provided that
"[i]ssues of medical treatment remain pending."3
On appeal, Kocanowski contends that as a firefighter injured
in the line of duty, she is entitled to temporary disability
N.J.S.A. 34:15-75 and
N.J.S.A. 34:15-43 at the
maximum rate of compensation, whether or not she was earning a
wage at the time of the accident. She argues the Division erred
in denying her application just because she was unemployed. She
Kocanowski acknowledges that Bridgewater has paid her medical
argues the order was contrary to "prevailing caselaw, and public
policy," as well as the "intent of the Legislature."4
Where the question raised is legal, not factual, we owe no
"special deference" to the compensation judge's "interpretation
of the law and the legal consequences that flow from established
facts." Hitesman v. Bridgeway, Inc.,
218 N.J. 8, 26 (2014) (citing
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366,
378 (1995)). Our review is de novo. Twp. of Holmdel v. N.J.
190 N.J. 74, 86 (2007).
The Workers' Compensation Act (Act),
N.J.S.A. 34:15-1 to -
142, is remedial legislation which is liberally construed. Cuna
v. Bd. of Fire Comm'rs,
42 N.J. 292, 298 (1964). Its primary
purpose is "to provide an employee, when he [or she] suffers a
work-connected injury, with a speedy and efficient remedy for loss
of wages." Cureton v. Joma Plumbing & Heating Co.,
38 N.J. 326,
Amicus curiae, New Jersey Advisory Council on Safety and Health
agrees with Kocanowski that volunteer firefighters are entitled
to temporary disability because
N.J.S.A. 34:15-75 "decouples the
right to workers compensation benefits from any connection to
331 (1962). The compensation judge's decision on a claim is "final
and conclusive between the parties."
Temporary disability benefits "provide an individual who
suffers a work-related injury with a 'partial substitute for loss
of current wages.'" Cunningham v. Atl. States Cast Iron Pipe Co.,
386 N.J. Super. 423, 428 (App. Div.) (quoting Ort v. Taylor-Wharton
47 N.J. 198, 208 (1966)), certif. denied,
188 N.J. 492 (2006).
They are payable at "70% of the worker's weekly wages received at
the time of the injury, subject to a maximum compensation of 75%
of the average weekly wages earned by all employees covered by the
'unemployment compensation law' and a minimum of 20% of such
average weekly wages a week."
N.J.S.A. 34:15-12(a) (emphasis
added) (citation omitted). "[T]emporary disability [payments]
continue until the employee is able to resume work and continue
permanently thereat or until he [or she] is as far restored as the
permanent character of the injuries will permit, whichever happens
This appeal is from the denial of temporary disability payments.
The court did not resolve the issue of medical payments. Although
we might have concluded this appeal was interlocutory requiring
leave, we rely upon our prior decisions in Della Rosa v. Van-Rad
267 N.J. Super. 290, 293-94 (App. Div. 1993), and
Hodgdon v. Project Packaging, Inc.,
214 N.J. Super. 352, 360 (App.
Div. 1986), that an award or denial of temporary disability
benefits is a final judgment and appealable as of right. But see,
Andersen v. Well-Built Homes of Cent. Jersey, Inc.,
69 N.J. Super. 246, 254 (App. Div. 1961) (stating an award of temporary disability
benefits is "not appealable as of right prior to a final judgment
disposing of all issues").
first." Cunningham, supra,
386 N.J. Super. at 427-28 (alteration
in original) (quoting Monaco v. Albert Maund, Inc.,
17 N.J. Super.
425, 431 (App. Div. 1952)). This period is not to exceed 400
"To calculate the number of weeks and fraction thereof that
compensation is payable for temporary disability," the statute
provides as a starting point to "determine the number of calendar
days of disability from . . . the day that the employee is first
unable to continue at work by reason of the accident."
34:15-38 (emphasis added). Then, the date "the employee is able
to resume work and continue permanently thereat" is determined.
Ibid. (emphasis added). A seven-day waiting period is subtracted
and the remainder is divided by seven. Ibid.
Given the statutory reference to "weekly wages," the ability
to "continue at work" and to "resume work," cases have held that
an "[a]ctual absence from work is a prerequisite to a temporary
disability award." Cunningham, supra,
386 N.J. Super. at 428.
The workers' compensation judge must find a claimant actually lost
income "because of [a] disability." Id. at 433.
Kocanowski argues there are specific provisions within the
workers' compensation statutes that not only address volunteer
firefighters but that require different treatment for their
temporary disability claims. Under
N.J.S.A. 34:15-43, "each and
every member of a volunteer fire company doing public fire duty
. . . who may be injured in line of duty shall be compensated
under and by virtue of the provisions of this article6 and article
2 of this chapter (R.S. 34:15-7 et seq.)." "'[D]oing public fire
duty' and 'who may be injured in line of duty' . . . shall be
deemed to include . . . the rendering of assistance in case of
fire . . . ." Ibid. Members of a volunteer fire company are
"deemed" to be conducting these duties "under the control or
supervision of any such . . . governing body." Ibid.
Another portion of the statute states, the "[c]ompensation
for injury and death" of "any volunteer fireman" shall be "based
upon a weekly salary or compensation" that is "conclusively
presumed" to be the maximum allowed by "this chapter."7
34:15-75. Also, the seven-day waiting period is expressly waived.
N.J.S.A. 34:15-75(b). Because these statutes do not reference
weekly wages or resuming work, Kocanowski contends that she is
entitled to temporary disability benefits even though she was not
employed at the time of her injury.
We agree with the compensation judge's application of these
statutes that barred Kocanowski's receipt of temporary disability
This reference is to
N.J.S.A. 34:15-36 to -48.
This reference is to the Act.
benefits. There is no question that volunteer firefighters are
within the scope of the workers' compensation statute and that
they are treated as under the control and supervision of their
governing body. But, we find no support for the notion that the
provisions regarding firefighters were to stand alone without
reference to the other sections of the statute. See Brown v. Twp.
of Old Bridge,
319 N.J. Super. 476, 498 (App. Div. 1999) (citations
omitted) (quoting Mimkon v. Ford,
66 N.J. 426, 433 (1975))
(providing that "[s]tatutes which deal with the same matter or
subject and which seek to achieve the same overall legislative
purpose should be read 'in para materia.'").
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. Indeed, the case law is clear that where
there are no wages lost, the payment of temporary disability is
considered a windfall.
In Calabria v. Liberty Mutual Insurance Co.,
4 N.J. 64, 68
(1950), the Supreme Court found an employee, who continued to work
even though he alleged exposure to chrome poisoning, could not
make a claim for temporary disability because "there had been no
absence from work."
In Electronic Associates, Inc. v. Heisinger,
111 N.J. Super.
15, 20 (App. Div.), certif. denied,
75 N.J. 139 (1970), we held
that an employee who voluntarily terminated her employment did not
suffer a current wage loss and was not entitled to temporary
disability payments. "Temporary disability benefits within the
intendment of workmen's compensation legislation represent a
'partial substitute for loss of current wages.'" Ibid. (citations
omitted) (citing Ort v. Taylor-Wharton Co.,
47 N.J. 198, 208
(1966)). We referenced the language in
N.J.S.A. 34:15-38 that
used the terms "working day" and "able to resume work," stating
"[t]his phraseology strongly suggests that temporary disability
has relevance only in an employment situation wherein the injured
workmen's enjoyment of current wages has been suspended by a work-
connected injury." Id. at 21.
In Tamecki v. Johns-Manville Products Corp.,
125 N.J. Super.
355 (App. Div. 1973), certif. denied,
64 N.J. 495 (1974), we held
that a college student was not entitled to additional temporary
disability benefits. There, the petitioner was not available to
work because of his college program and not because of his injury,
and as such, he did not suffer wage loss. Id. at 359-60.
In Outland v. Monmouth-Ocean Education Service Commission,
154 N.J. 531, 540 (1998), the Supreme Court remanded a teacher's
claim for temporary benefits to determine whether the teacher's
injury during the school year actually "caused her to lose income
she could otherwise have earned from summer employment." Id. at
543. The Court held that the teacher, who was employed under a
ten-month contract, could receive temporary disability benefits
for the summer recess period if she could prove she "planned to
work during the summer recess but her injury prevented her." Id.
at 542. If she "planned to relax all summer . . . . the benefits
would represent a windfall." Ibid.
More recently in Cunningham, we held that "[a]ctual absence
from work is a prerequisite to a temporary disability award."
386 N.J. Super. at 428. We agreed with Heisinger that temporary
disability was not due where the employee "remov[ed] herself from
the workforce" because an award in those circumstances "would have
been impermissibly based on a fictitious wage-earning status
during the period of her disability." Id. at 432. All of these
cases required proof of lost income as a prerequisite for an award
of temporary disability benefits.
We are not persuaded by Kocanowski's argument that our
decision in Capano v. Bound Brook Relief Fire Co.,
356 N.J. Super.
87 (App. Div. 2002), certif. denied,
175 N.J. 550 (2003), leads
to a different result. In Capano, the petitioner was a ninety-
three-year-old man who had served as a volunteer firefighter for
the Borough of Bound Brook since he was eighteen. He "no longer
attended drills nor responded to the scene of a fire," id. at 89,
but spent time at the firehouse cleaning up and taking care of the
wood-burning stove that heated the firehouse. He fell and
fractured his hip when tending the fire. He was awarded temporary
and permanent disability benefits.
The issue addressed in Capano centered on whether tending the
fire constituted "in the line of duty," id. at 94, qualifying him
for benefits under
N.J.S.A. 34:15-43. There was no discussion
about the issue before us here. There was no reference to the
temporary disability statute or to
N.J.S.A. 34:15-75. We do not
view that case as controlling on the issue raised here in the
absence of analysis.
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 benefits. That payment depends on proof of lost wages.
Neither the cases nor the statutes supports Kocanowski's argument
that lost wages are not required for volunteer firefighters who
are injured. Because there was no proof of lost wages, there is
no entitlement to payment of temporary disability benefits.