June 6, 2017
appeal from Division of Workers' Compensation, Department
of Labor and Workforce Development, Docket No. 2015-29962.
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 brief).
Jennifer A. Cottell argued the cause for respondent (Cooper,
Cottell & Taylor, LLC, attorneys; Jennifer A. Cottell, on
Blanco Law Firm, LLC, attorneys for amicus curiae New Jersey
Advisory Council on Safety and Health (COSH) (Pablo N.
Blanco, on the brief).
Judges Messano, Suter and Grail.
Jennifer Kocanowski appeals the March 30, 2016 order of the
Division of Workers' Compensation (Division) denying her
claim for temporary total disability benefits. We affirm.
was a volunteer firefighter with the Finderne Fire Engine
Company in Bridgewater Township for more than fourteen years.
On March 6, 2015, when responding with her company to a
"multi-alarm fire, " she slipped and fell on ice,
breaking her right fibula. Over the course of the next year,
she had surgeries to repair her fibula, foot and left knee.
She also attended physical therapy. She complained about pain
in her lower back. Although she did not specifically recall
it, she thought she "must have" landed on her
"Scott pack" breathing apparatus, which she was
carrying on her back.
was not employed at the time of the accident. In October
2013, she stopped working to help her ailing father, who has
since passed away. She did not "look for any type of
work" from then until the accident in March 2015. She
was employed in the past as a nanny and certified home health
aide, but her license lapsed when her father became ill. In
July 2014, she resumed her activities as a volunteer
firefighter. She was not paid in this capacity. She has not
had any paid employment since October 2013. Kocanowski
testified at trial that since the March 2015 accident, she
has not been able to return to work as a volunteer
firefighter.She did not believe she could "go back
to nanny's work or home health care work."
filed an employee claim petition against respondent Township
of Bridgewater (Bridgewater) in November 2015 seeking
workers' compensation benefits for injuries to her
"right ankle and right lower leg; left knee; [and] low
back, " arising from the slip and fall. In December
2015, she filed a motion for temporary disability and medical
benefits. Because she was an injured volunteer firefighter,
her application requested temporary disability payments at
the maximum weekly benefit amount, then $855 per week.
Bridgewater filed opposition, claiming that because
Kocanowski was not employed at the time of the accident, she
was not entitled to temporary disability
was conducted by the Division on Kocanowski's motion for
medical and temporary benefits. Bridgewater stipulated only
that Kocanowski slipped and fell on ice when she was a
volunteer firefighter and received medical treatment.
Kocanowski and her boyfriend testified; there was no expert
workers' compensation judge denied 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 ...