Volunteer firefighters who are injured are entitled to disability payments in New Jersey even if they do not have a full-time, paying job when they are hurt, a unanimous state Supreme Court decided in a case that could have implications for 30,000 emergency service volunteers and that could increase municipal costs.
In a case involving 17-year Bridgewater volunteer firefighter Jennifer Kocanowski,on Tuesday that the lack of regular, paid employment does not preclude an emergency services member from collecting temporary disability, overruling a workers’ compensation judge and the Appellate Division.
“The extrinsic evidence and legislative history decidedly indicate the Legislature intended to increase temporary disability coverage for volunteer firefighters injured in the course of performing their duties when it enacted the current” law, wrote Justice Walter Timpone for the court. He added that the law “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 injury.”
This decision could have a wide impact. According to a recentfrom the state comptroller’s office, New Jersey had 30,372 volunteer firefighters as of last March. Most of these are likely employed but there are also an unknown number who are retired from work or otherwise unemployed.
Jennifer Cottell, an attorney with Capehart & Scatchard of Mount Laurel who represented Bridgewater, said the court’s ruling could also apply to rescue squad workers and a number of other types of local volunteers. The ruling could wind up raising the cost of premiums for municipalities, which pay an insurer or self-insure for worker’s compensation.
“Once the underwriters get word of this decision, municipalities are going to see a huge increase in their costs for coverage,” Cottell said.
Kocanowski was a member of the Finderne Fire Department in Bridgewater when, in March 2015, she and other volunteer firefighters responded to a multi-alarm fire in nearby Franklin Township, according to court papers. While carrying equipment, she slipped on ice, suffering numerous bone fractures, ligament tears, nerve damage and other injuries to her right leg and foot and her back. Kocanowski had two surgeries, physical therapy and other medical treatments but continues to suffer from back, leg and foot issues and can drive only very short distances.
For most of the time while she was volunteering, Kocanowski also had paid work, including as a nanny and a home healthcare aide. She stopped working in October 2013 to care for her ill father, who died a month later. Kocanowski took a six-month leave of absence from firefighting following his death to care for her ill mother and settle her father’s estate. She returned as a volunteer to the department in July 2014 but did not resume paid work.
Nine months after her injury, Kocanowski filed for temporary disability and/or medical benefits and requested the state maximum weekly disability payment, which was $855 per week at the time, because she was an injured volunteer firefighter. Bridgewater opposed the application, saying that since Kocanowski was not employed at the time of the accident, she was not entitled to disability benefits.
The workers’ compensation judge agreed with the township, deciding in March 2016 that New Jersey case law required a person to be receiving a salary in order to receive disability benefits, which is meant as a wage replacement. An appeals panel agreed, ruling that “there first must be an entitlement by the volunteer to payment of temporary benefits. That payment depends on proof of lost wages.”
State workers’ disability compensation was first required by a 1911 law, according to court papers. In 1931, the Legislature required municipalities to provide compensation for volunteer firefighters based on their salary in private employment or the pay they had last received if they were unemployed. The statute was amended in 1952 and today it is more vague, requiring that compensation for injury or death of firefighters and numerous other types of volunteers “Be based upon a weekly salary or compensation conclusively presumed to be received by such person in an amount sufficient to entitle him, or, in the event of his death, his dependents, to receive the maximum compensation by this chapter authorized.”
Timpone wrote in the decision that while the “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.” The decision holds that the amended law “was intended to grant all volunteer firefighters the maximum compensation allowed, regardless of current or previous income.”
Cottell said she was “really shocked” by the court’s choice to interpret unclear statutory language, rather than suggesting lawmakers draft new legislation to clarify their intent.
“It is clear that the temporary disability benefit has always been a wage replacement,” Cottell said. “Miss Kocanowski was not working. She was not receiving income. The law was not meant to give people income if they weren’t already receiving it.”
But the decision cites the important role volunteer firefighters play in a state where most municipalities do not have a paid fire department.
“The Legislature has long sought to encourage that role by providing certain protections and exemptions for volunteer firefighters,” the decision states. “In recognition of the protections and benefits the Legislature has created for volunteer firefighters, our courts have liberally construed the Workers’ Compensation Act to provide coverage for volunteer firefighters.”
It cites two past decisions beneficial to volunteer firefighters seeking compensation: In one, a volunteer playing for a department’s baseball team was deemed to have been injured “in the line of duty,” while in the other, a 93-year-old who had no paid employment at the time was considered to have been performing a “public fire duty” when he was injured while tending the stove at the firehouse.
“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,” the decision states.
The ruling sends the case back to the state Division of Workers’ Compensation to award Kocanowski the $855 weekly benefit retroactively. The only compensation Kocanowski had received to date had been $125 per week from the Finderne Fire Department for one year after the accident.
Kocanowski’s attorney Galen Booth did not respond to a request for comment.
Cottell said this could have wide-ranging implications. An unemployed college student, for instance, could volunteer for a few hours a weekend with the fire department, suffer an injury, and wind up receiving the maximum workers’ compensation, which is currently.
“This is going to be a problem for municipalities,” she said. “I think municipalities are going to drive the Legislature to fix it.”