Kocanowski v. Twp. of Bridgewater, A-55 Sept. Term 2017

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: JUSTICE TIMPONE delivered the opinion of the Court.
• Citation: 237 N.J. 3,203 A.3d 95
• Parties: Jennifer KOCANOWSKI, Petitioner-Appellant, v. TOWNSHIP OF BRIDGEWATER, Respondent-Respondent.
• Docket Number: A-55 Sept. Term 2017,080510
• Decision Date: 19 February 2019

237 N.J. 3
203 A.3d 95

Jennifer KOCANOWSKI, Petitioner-Appellant,
v.
TOWNSHIP OF BRIDGEWATER, Respondent-Respondent.

A-55 Sept. Term 2017
080510

Supreme Court of New Jersey.

Argued January 3, 2019
Decided February 19, 2019

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 briefs).

Jennifer A. Cottell argued the cause for respondent (Capehart & Scatchard, attorneys; Jennifer A. Cottell, on the briefs, and John H. Geaney, of counsel and on the briefs).

Jeffrey S. Monaghan argued the cause for amicus curiae New Jersey Association for Justice (Pellettieri, Rabstein & Altman, attorneys; Jeffrey S. Monaghan, on the brief).

Pablo N. Blanco submitted a brief on behalf of amicus curiae New Jersey Advisory Council on Safety and Health (The Blanco Law Firm, attorneys).

JUSTICE TIMPONE delivered the opinion of the Court.

237 N.J. 5

Jennifer Kocanowski was a volunteer firefighter for seventeen years and was injured in the course of her duties. Kocanowski applied for and was denied temporary disability benefits because she did not have outside employment. In this appeal, we consider whether volunteer firefighters must be employed to be eligible for temporary disability benefits under the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -146.

The Appellate Division affirmed the denial of temporary disability benefits by the Division of Workers' Compensation, finding Kocanowski's unemployment at the time of injury precluded her from receiving coverage.

We now reverse the Appellate Division's judgment. While N.J.S.A. 34:15-75's language is unclear, we find its legislative history indicates a strong intent to provide temporary disability coverage to volunteer firefighters at the maximum compensation provided for in the Act.

I.

A.

We elicit the following facts from the testimony before the Division of Compensation.

237 N.J. 6

Kocanowski was a volunteer firefighter for approximately seventeen years; she served fifteen of those years at the Finderne Fire Department in the Township of Bridgewater. During her fifteen years working for the Finderne Fire Department, Kocanowski several times received "Top 10" and "Top 5" responder recognition.

In addition to her volunteer work, Kocanowski usually had outside paid employment, including working as a nanny and home health care aide. In October 2013, Kocanowski left her outside employment to provide care for her ill father. Kocanowski's father died in November 2013, and she lost her brother shortly thereafter. Her home health aide license lapsed while she was coping with family issues.

Kocanowski took a six-month leave from volunteer firefighting after her father's death to care for her ill mother and settle her father's estate. She returned to volunteer

203 A.3d 97

firefighting around July 2014, but did not resume outside employment.

On March 6, 2015, Kocanowski and other volunteer firefighters from Bridgewater responded to a multi-alarm fire in Franklin Township. While carrying equipment, Kocanowski slipped on ice. She broke the upper shaft of her right fibula, severely damaged her ankle, and tore several ligaments.

Kocanowski underwent surgery and received numerous medical treatments for her injuries, but she began to experience back pain and knee pain in addition to her ankle pain in the weeks after the accident. Her doctors discovered two fractures in her foot, a torn meniscus in her acutely arthritic left knee, damage to the peroneal nerve on her right leg, and impairment to her back -- all sustained as a result of the fall. Kocanowski underwent another surgery, further treatments, and intensive physical therapy. Yet, she continues to experience issues with her back, legs, and feet, all of which impede her ability to return to volunteer firefighting and her previous outside employment as a nanny or home health care aide. Kocanowski has also been unable to continue caring for her

237 N.J. 7

mother since the accident. Her injuries and the accompanying pain limit her ability to drive more than very short distances.

Kocanowski received $125 per week in benefits from the Finderne Fire Department for one year following the accident. She has no other source of income.

B.

On December 14, 2015, Kocanowski filed a Notice of Motion for Temporary and/or Medical Benefits, including a request for a 25% additional penalty for failure to pay timely temporary disability benefits.

The Division of Workers' Compensation judge heard and denied Kocanowski's application for temporary benefits on March 9, 2016. The judge acknowledged that N.J.S.A. 34:15-75 awards "maximum compensation" to volunteer firefighters injured in the course of their volunteer work but found that temporary disability benefits were intended as a wage-replacement. The judge therefore concluded Kocanowski was not entitled to temporary disability benefits because she had not been employed at the time of her accident.

C.

Kocanowski appealed, arguing the compensation judge had erred in finding an outside employment requirement before volunteer firefighters were eligible to receive temporary disability benefits.

The Appellate Division affirmed the compensation judge's determination that pre-injury outside employment is a necessary predicate to awarding temporary disability benefits to volunteer firefighters. Kocanowski v. Township of Bridgewater, 452 N.J. Super. 476, 478, 483, 175 A.3d 968 (App. Div. 2017). The panel analyzed N.J.S.A. 34:15-38 (which provides the method of calculating compensation for temporary disability benefits), with heavy emphasis on the language "able to resume work."

237 N.J. 8

Id. at 481-82, 484, 175 A.3d 968. Relying on Outland v. Monmouth-Ocean Education Service Commission, 154 N.J. 531, 713 A.2d 460 (1998), and Cunningham v. Atlantic States Cast Iron Pipe Co., 386 N.J. Super. 423, 901 A.2d 956 (App. Div. 2006), the panel determined a claimant must provide proof of lost income in order to receive temporary disability benefits. Kocanowski, 452 N.J. Super. at 484-85, 175 A.3d 968.

The Appellate Division found the award of temporary disability benefits to an unemployed volunteer firefighter in Capano v. Bound Brook Relief Fire Co., 356 N.J. Super. 87, 811 A.2d 510 (App. Div. 2002),

203 A.3d 98

did not control because that case turned on whether the claimant's injury occurred "in the line of duty," instead of the issue raised here. Kocanowski, 452 N.J. Super. at 485, 175 A.3d 968. The Appellate Division ultimately concluded "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." Ibid.

We granted Kocanowski's petition for certification. 232 N.J. 413, 180 A.3d 724 (2018). We also granted the New Jersey Association for Justice (NJAJ) leave to appear as amicus curiae. The New Jersey Advisory Council on Safety and Health (COSH), which appeared as amicus before the Appellate Division, participated as amicus before this Court pursuant to Rule 1:13-9.

II.

A.

Kocanowski urges us to reverse the Appellate Division and find she is entitled to temporary disability benefits. Kocanowski argues that the typical requirement that temporary disability benefits be awarded only to replace lost wages does not apply to volunteer firefighters. Kocanowski emphasizes the statutory history of the Act, particularly as it relates to an expansion of protections for volunteer firefighters over time.

237 N.J. 9

B.

Amici curiae COSH and NJAJ each support and echo many of the arguments made by Kocanowski. COSH and...