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Kocanowski v. Township of Bridgewater

Superior Court of New Jersey, Appellate Division

December 11, 2017

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

          Argued June 6, 2017

         On appeal from Division of Workers' Compensation, Department of Labor and Workforce Development, Docket No. 2015-29962.

          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 brief).

          Jennifer A. Cottell argued the cause for respondent (Cooper, Cottell & Taylor, LLC, attorneys; Jennifer A. Cottell, on the brief).

          The Blanco Law Firm, LLC, attorneys for amicus curiae New Jersey Advisory Council on Safety and Health (COSH) (Pablo N. Blanco, on the brief).

          Before Judges Messano, Suter and Grail.

          OPINION

          SUTER, J.A.D.

         Petitioner 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.

         I.

         Kocanowski 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.

         Kocanowski 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.[1]She did not believe she could "go back to nanny's work or home health care work."

         Kocanowski 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 payments.[2]

         Trial 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 testimony.

         The 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 ...


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