Skip to Content

Workers’ Comp Case Summary: Capano v. Bound Brook Relief Fire Co.


This case was decided on appeal after the respondent employer appealed from a judgment of the New Jersey Department of Labor, Division of Workers’ Compensation, Lebanon District, which ruled in favor of an employee, awarding him temporary and permanent disability damages from the time of his accident until his eventual death.

Frank Capano, petitioner, was 93 years old at the time of the accident surrounding this action. Mr. Capano started volunteering as a firefighter for the Borough of Bound Brook when he turned eighteen in 1918. During his service at the fire department, Mr. Capano founded the Borough’s rescue squad in the mid 1930’s and eventually served as the department’s chief in 1939 and in 1959. By 1994 he no longer attended drills or responded to fire calls, but he continued to spend significant time in the firehouse. Each evening Mr. Capano would arrive at the firehouse and clean the place up and then, “watch TV and talk with the other members.”

David Dombey, the President of the fire department in 1994, testified that Mr. Capano was a “life member” of the company, meaning that he had served for over 20 years. Although his activity at the firehouse was primary social, he was by far the longest standing member of the company, as a show of respect, Mr. Capano’s name was kept on the roster of active fireman. Additionally, there was testimony that Mr. Capano helped by mopping floors, cleaning the bathroom, and “took care” of the wood burning stove used to assist in heating the firehouse.

At 10:00 p.m. on February 19th, 1994 Mr. Capano was discovered laying on the floor of the firehouse by his granddaughter and her husband, Bruce Gorkski, a lieutenant at the department. Capano’s body was positioned approximately 11 and a half feet from the wood burning stove, which was fixed on a raised platform. Mr. Capano was rushed to the emergency room where his son, Patrick, testified that his father told him that he fell while “putting a log on the wood burning stove” and “stepped off the ledge.” Fran Grabowski, Mr. Capano’s daughter, also testified that her father told her at the emergency room that he got up to put a “log on the wood burning stove but slipped and fell on the waxed floor.”

Mr. Capano suffered a fractured hip from the fall, requiring he undergo partial hip replacement surgery. After the surgery, Mr. Capano could no longer live with his daughter, and had to move into a nursing home. Dr. Earl C. Shaw, testifying as Mr. Capano’s expert, claimed that the fall resulted in a total permanent orthopedic disability and Mr. Capano no longer could perform his acts of daily living. The fire department’s expert, Dr. Francis DeLuca, also diagnosed Mr. Capano with a fractured hip but estimated Capano’s loss due to the hip fracture of only 10% partial total, attributing Mr. Capano’s condition to the “natural aging process.”

The first issue the Superior Court of New Jersey examined was Mr. Capano’s capacity as an employee in accordance with the workers compensation statute. The workers’ compensation statute, N.J.S.A. 34:15-43, provides protection to “each member of a volunteer fire company doing public fire duty… who may be injured in line of duty.” Under this law, “doing public fire duty” and “injured in line of duty” includes, “participation in any authorized construction, installation, alteration, maintenance or repair work upon the presumes apparatus or other equipment owned or used by the fire company.” In agreeance with the judge of compensation, the Superior Court held that Capano was “doing public fire duty” by maintenance of the fire house premises because he owned a key to the firehouse, a pager to receive fire calls, and visited the firehouse on a daily basis to tend the wood burning stove. The respondent’s argued that no one specifically ordered Capano to perform these duties and the key to the firehouse and pager were given to him by corporate officers. However, because the respondent’s acquiescence to Mr. Capano’s activity and the benefit they received from his duties, Mr. Capano fell within protection under the statute.

The fire company argued that Mr. Capano’s injury was due to his age and that his condition was unrelated to his fall, relying on their expert’s examination which attributed only 10% of his total disability to the fall. The workers compensation statute specifically prohibits awarding damages, “due to the natural aging process.” However, the burden of proof lies on the respondent to show by competent evidence that the petitioner had a pre-existing loss of function. The Superior Court deferred to the judge of compensation’s conclusion regarding this issue. The judge of compensation concluded that the respondent failed to provide any evidence of preexisting functional loss, due to aging or previous injury.

Based on this assessment, the Superior Court held that the record did not afford the court an ability to differ from the judge of compensations ruling for Mr. Capano. Mr. Capano as a volunteer member of the fire company was performing a “public fire duty” by way of “maintenance” of the firehouse. Therefore, the judgment of the Division of Worker’s Compensation was affirmed and the benefits awarded were left unchanged.