Pezzano Mickey & Bornstein March 2019

MAR 2019

(908) 293-7330 | www.pmblawfirm.com

Perspectives PMB

SUPPORT FOR VOLUNTEER FIREFIGHTERS Injured in the Line of Duty

The New Jersey Supreme Court issued a ruling on February 19, 2019, which affects all volunteer firefighters in the state. Workers’ compensation claimants are entitled to receive temporary disability benefits equaling 70% of their gross average weekly wage, up to the state maximum, if they suffer a “lost wage” due to their injuries. New Jersey law provides that all volunteer firefighters injured during the course of their volunteer duties shall be paid at the maximum compensation rate in effect in the year of their accident, regardless of their salary level in their jobs outside of the firehouse. N.J.S.A. 34:15-75. Jennifer Kocanowski was a volunteer firefighter for 17 years who was injured while volunteering at the Finderne Fire Department, in Bridgewater, New Jersey. For the majority of that time, she worked in various paid positions outside of the firehouse. However, she quit her job in October, 2013 to care for her ailing parents and thereafter settle her father’s estate. She returned to the fire department around July 2014, but did not return to paid employment. On March 6, 2015 she was responding to a multi-alarm fire when she slipped and fell carrying equipment, sustaining multiple injuries which required two surgeries and prevented her being able to return to work. The township’s workers’ compensation insurance carrier denied that Ms. Kocanowski was eligible for temporary disability benefits, since she did not suffer a lost wage due to the injury. In support of its position, the insurance carrier pointed to N.J.S.A. 34:15-38, which sets forth the method for calculating the dates though which temporary disability benefits are owed, measuring from the day the employee

is “first unable to continue at work” up to the first day “the employee is able to resume work.” The Workers’ Compensation Judge denied Ms. Kocanowski’s Motion for Temporary Disability Benefits because she was not employed at the time of her accident. The Appellate Division affirmed the trial judge’s ruling, holding that a loss of earnings was a prerequisite for a volunteer firefighter to be eligible for temporary disability benefits. The New Jersey Supreme Court agreed to hear the case. The Supreme Court analyzed the legislative history of the Workers’ Compensation Act, which has progressively expanded protections for volunteer firefighters over the years. In 1931, the law provided that temporary compensation for volunteer firefighters was based on the weekly salary they received in private employment, and if not employed at the time of the injury, would be based upon the salary of their most recent job prior to the accident. The statute was amended in 1952, to provide that all volunteer firefighters shall be paid at the same, maximum rate for temporary disability. The Court determined that the New Jersey legislature intended to encourage volunteerism by providing multiple protections and exemptions for volunteer firefighters, since they perform such a vital public service, without which our municipalities would need to bear the exorbitant expense of paid fire departments. In short, the Supreme Court ruled that the history of the Act revealed that the Legislature intended to increase rather than decrease disability coverage for volunteer firefighters, not create new obstacles for coverage. As such, it was ridiculous to conclude that unemployed firefighters in 1931 would be paid a temporary disability rate based on their last employment, but an unemployed

firefighter in 2019 would be entitled to zero benefits. The Supreme Court thus found in favor of Ms. Kocanowski, directing the Workers’ Compensation Court to award her temporary disability benefits. As a result of this decision, volunteer firefighters will not have to worry that they will be left without benefits if an injury occurs when they are between jobs. Good news for our brave firefighters and the communities they serve! –Lisa Pezzano Mickey My first cousin, James Russo, Jr., the Chief of the White Meadow Lake Fire Company, in Rockaway Township, New Jersey. So proud of him!

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