Temporary Disability Issues & The Potential Impact Of The Corona Virus State Of Emergency In New Jersey

The State of New Jersey is a wage loss State for the purposes of workers’ compensation benefits. The benefit is meant to compensate the Petitioner for his/her lost weekly wages while they are unable to perform their job duties as a result of a workplace injury that has been admitted or found by the Court to be a compensable accident. For a Petitioner to qualify for temporary disability payments, the Petitioner must have been entitled to actual wages and be absent from the workplace. Cunningham v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423 at 428 (App. Div. 2006) Temporary disability benefits are calculated at 70% of a Petitioner’s average weekly wage with both a maximum and minimum amount allowable pursuant to statute (this figure changes each year). N.J.S.A. 34:15-12(a). Further, pursuant to N.J.S.A. 34:15-14 there is a waiting period of seven days before such temporary compensation can begin.

There are a variety of situations which may occur that would prevent a Petitioner from being entitled to temporary disability benefits. When a Petitioner removes him or herself from the workplace, perhaps they quit the job or retired, they are no longer entitled to the benefit as they would no longer be collecting a wage. Tamecki v. Johns Manville Products Corp., 125 N.J. Super. 355 (App. Div. 1973), certif. denied, 64 N.J. 495 (1974).  Another possibility is that the Respondent employer offered the Petitioner a light duty position and the Petitioner refused to return to the Respondent’s employ. In the case of a Petitioner who was terminated for cause, the right to temporary disability benefits is also terminated. The Court in Cunningham v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423 (App. Div. 2006) held that “in order to receive temporary disability benefits, the petitioner must establish on remand that “but for” his work-related disability he would have been employed.”

A case regarding volunteer firefighters and whether they are entitled to temporary disability benefits recently made its way to a final decision on February 19, 2019. As discussed above, the history of temporary disability benefits was provided as a means of wage replacement. However, the Petitioner in Kocanowski v. Township of Bridgewater was a volunteer firefighter for 14 years and therefore, there were no wages to replace. Kocanowski v. Township of Bridgewater, 237 N.J. 3, (2019). In 2015, while responding to a call, Petitioner slipped on ice and broke her fibia. The Petitioner received medical care but was denied temporary disability benefits. The Respondent’s position was that because the Petitioner was unemployed and not suffering a loss of any wages, temporary disability was not proper. The workers’ compensation Judge agreed stating, “The case law in New Jersey is clear, petitioner must be receiving wages to merit receiving temporary disability replacement for those wages.” Petitioner argued that the statute allows specifically for volunteer firefighters to receive benefits, including temporary disability benefits at the maximum rate under N.J.S.A. 34:15-75. The matter was appealed and in December 2017, the Appellate Court affirmed the underlying decision that the intent of the legislature was to compensate an employee for lost wages and the Petitioner, despite being a volunteer firefighter, was unable to demonstrate said loss. Kocanowski v. Township of Bridgewater, 452 N.J. Super. 476, (App. Div. 2017). That decision was reversed on February 19, 2019 where the Court held that the legislative history indicates a strong intent to provide temporary disability coverage to volunteer firefighters at the maximum compensation provided for in the Act, regardless of current or previous income. The Court based its decision on the significant role and responsibilities provided by volunteer firefighters as well as a history of other protections and exemptions previously established for this group.

Taking it one step further, and in light of the COVID pandemic and State of Emergency declared by Governor Murphy, there may be questions as to whether or not individuals who have had COVID and lost time from work are entitled to temporary disability benefits. Senate Bill 2380 signed on September 14, 2020 and retroactive to March 9, 2020, has created a rebuttable presumption of workers’ compensation coverage for essential employees. The law defines “essential employee” as “an employee in the public or private sector who during a state of emergency” such as:

  1. is a public safety worker or first responder, including any fire, police or other emergency responders;
  2. is involved in providing medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities, or homes;
  3. performs functions which involve physical proximity to members of the public and are essential to the public’s health, safety, and welfare, including transportation services, hotel and other residential services, financial services, and the production, preparation, storage, sale, and distribution of essential goods such as food, beverages, medicine, fuel, and supplies for conducting essential business and work at home; or
  4. is any other employee deemed an essential employee by the public authority declaring the state of emergency. Note: this category includes but is not limited to grocery and food store employees, gas station attendants, construction workers and pharmacy employees.

Should you have any questions or concerns in the realm of workers’ compensation, please contact our office at 856-854-8900.

By: Eleanor M. Hoechst, Associate at Brown & Connery, LLP