Submitted by New Jersey Workers Compensation Lawyer, Jeffrey Hark.
If I am a volunteer firefighter or police officer and I am injured during a official call I am I able to obtain temporary disability benefits? As a volunteer firefighter can I can’t temporary disability benefits if I am injured during a call? What is “Cunningham”
This is a very fact specific case. Here a 14 year veteran volunteer firefighter was called to assist in a fire situation. At the time of the call she was also unemployed. When she came to the scene of a multi alarm fire she slipped and fell on ice breaking her right fibula. As a volunteer, she is entitled to the max and weekly benefit of $855.09 for 2015. The municipality filed an opposition arguing that because she was unemployed at the time she’s not entitled to temporary disability benefits. In this case there is no dispute that she was in the line of duty as a volunteer at the time she was injured. The Worker’s Compensation judge ruled temporary disability benefits are used to replace active wages a petitioner is receiving during a work related injury. Because this employee/volunteer was unemployed at the time of the injury she is not entitled to the TDB payments. The volunteer police officer turn to the Worker’s Compensation statute and specifically NJSA 34:15–75 and NJSA 34:15–43.
The Appellate Division turn to the seminal New Jersey decision addressing an employee’s entitlement to temporary disability benefits, “Cunningham”. Therein the appellate division reiterated, “ that temporary disability benefits provide an individual who suffers a work-related injury with a partial substitute for loss of current wages.” The court then went on to examine the decisions surrounding ‘active wage loss’ and ‘the line of duty’ of volunteer employees. The court affirmed the workers compensation judge’s ruling denying TDB payments to this petitioner and stated:
“We agree with the compensation judge’s application of these statutes that barred Kocanowski’s receipt of temporary disability 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, 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. “