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Gelman: Unpaid Volunteer Firefighter not Entitled to Temporary Benefits

By Jon L. Gelman

Friday, December 15, 2017 | 996 | 0 | min read

The New Jersey Appellate Division held, in an unreported opinion, that an unpaid and unemployed volunteered firefighter was not entitled to temporary workers’ compensation benefits.

Jon L. Gelman

Jon L. Gelman

The court affirmed the compensation judge’s finding that without the receipt of any wages, temporary benefits were not payable.

The trial court ruled:

The workers' compensation judge denied [Jennifer] 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.”

The injured volunteered firefighter was not receiving wages in that capacity at the time of the accident and was not employed at another job.

Statutory language requires the payment of a weekly wage and the inability to work as a prerequisite for the payment of temporary workers’ compensation benefits.

The appellate court held:

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.

The statutory prerequisite of wages being paid to obtain an award for workers’ compensation benefits must be enforced. The payment of premiums are based on the payroll paid by the employer. The employer in this instance is a public entity, and the Legislature obviously wanted to keep costs contained for communities that needed to rely upon a volunteer workforces for fire safety services.

If the state and other public entities desired to establish a more cost-effective benefit system to provide compensation benefits for volunteers serving their communities, it could be done outside the classic Workers’ Compensation Act.

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case, and its use in other cases is limited.

Claimants' attorney Jon L. Gelman is the author of "New Jersey Workers’ Compensation Law" and co-author of the national treatise "Modern Workers’ Compensation Law." He is based in Wayne, New Jersey. This blog post is republished with permission.


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