Temporary Total Disability Benefits Contingent Upon Proof of Lost Wages

In a recently published opinion, the New Jersey Appellate Division surprisingly awarded a win for employers in the temporary total disability benefits arena. The New Jersey Workers’ Compensation Act is liberally construed by courts and judges alike as its primary goal is to provide an employee with quick relief for lost wages after suffering a work-related injury. The Act requires payment of temporary total disability benefits to an injured employee at a rate of 70% of the employee’s weekly wages. However, in Kocanowski v. Twp. of Bridgewater, 2017 N.J. Super. LEXIS 171 (App. Div. Dec. 11, 2017), the Appellate Division explained that there must be an underlying entitlement to lost wages before any temporary total disability benefits can be awarded.

On March 6, 2015, the petitioner, a volunteer firefighter, slipped and fell on ice while responding to a call, sustaining various injuries. She underwent multiple surgeries and physical therapy, but she continued to complain of low back pain. In December 2015, the petitioner filed a Motion for Medical/Temporary Benefits, alleging entitlement to temporary total disability benefits based on her status as an injured volunteer firefighter. See N.J.S.A. § 34:15-7 (noting “[c]ompensation for injury and death, either or both, of any volunteer fireman . . . shall [b]e based upon a weekly salary or compensation conclusively presumed to be received by such person in an amount sufficient to entitle him . . . to receive the maximum compensation[.]”).

According to the petitioner’s testimony, taken during the motion trial, at the time of the incident, she was not employed. Although she was previously employed as a nanny and certified home health aide, she had stopped working in October 2013 to care for her father. It was noted that her home health aide certification lapsed while caring for her father and that, although she did return to work as a volunteer firefighter in July 2014, she did not look for other paid employment. The petitioner testified that following the accident in March 2015, she could not return to work as a volunteer firefighter and believed she could no longer work as a nanny or home aide either. The Workers’ Compensation Judge ultimately denied her application for temporary total disability benefits on the basis that she could not prove lost wages. The petitioner appealed, arguing that firefighters are entitled to these benefits under N.J.S.A. § 34:15-43 and 15-75, regardless of whether she was earning wages at the time of the accident.

As the issue raised on appeal was a legal question, the Appellate Division reviewed the matter de novo, giving no weight to the Workers’ Compensation Judge’s decision. After explaining the policy justifications for paying temporary total disability benefits, the Appellate Division assessed when and in what circumstances these benefits should be paid. Prior case law, including the leading case on temporary benefits—Cunningham v. Atl. States Cast Iron Pipe Co., 901 A.2d 956 (N.J.Super. App. Div. 2006)—was referenced and quoted for the proposition that “[a]ctual absence from work is a prerequisite to a temporary disability award.”

The petitioner contended that volunteer firefighters are entitled to temporary total disability benefits because N.J.S.A. § 34:15-43 and 15-75 do not reference weekly wages or resuming work. The Appellate Division rejected this argument, holding that these two provisions do not stand alone from the rest of the statute and that the petitioner’s proposed interpretation of N.J.S.A. § 34:15-43 and 15-75 was contrary to the legislative intent of these benefits, which is to replace wages. If no wages are actually lost, the Appellate Division found that temporary total disability benefits would provide the petitioner with a windfall.

The Appellate Division then identified case law to support this proposition. First, in Elec. Assocs., Inc. v. Heisinger, 266 A.2d 601 (N.J.Super. App. Div. 1970), the Appellate Division held that an employee was not entitled to temporary total disability benefits because she voluntarily terminated her job when she became pregnant. In Tamecki v. Johns-Manville Prods. Corp., 311 A.2d 20 (N.J.Super. App. Div. 1973), the Appellate Division found that an employee who was no longer working in order to enroll in college was not entitled to temporary total disability benefits. Finally, the New Jersey Supreme Court has held that a teacher was required to prove she planned to work during the summer to qualify for temporary total disability benefits in Outland v. Monmouth-Ocean Educ. Serv. Comm’n., 713 A.2d 460 (N.J. 1998).

As this and other prior case law illustrate, an employee must prove wage loss to be entitled to temporary total disability benefits. Employers should note this decision for current and future claims. If an employee is terminated, all pertinent information should be provided to the carrier for purposes of determining entitlement to temporary total disability benefits. Similarly, carriers should reach out to employers to investigate whether that employee would be entitled to temporary total disability benefits, rather than simply providing benefits as a default if an employee is placed out of work.

*Kiara is an associate in our Mt. Laurel, New Jersey office. She can be reached at 856.414.6404 or kkhan@mdwcg.com.

_{Defense Digest, Vol. 24, No. 1, March 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}