On appeal from the Supreme Court, whose opinion is reported in 136 N.J.L. 87.
For the petitioner-appellee, David Roskein (John A. Laird, of counsel).
For the respondents-appellants, Maurice C. Brigadier.
The opinion of the court was delivered by
OLIPHANT, CHANCELLOR. This is a workmen's compensation case involving the right of one who has been awarded compensation to thereafter assume the status of a pensioner and to secure an award for increased disability. Our answer to this is in the affirmative under the facts of this case. These are fully set forth in the opinion of the Supreme Court reported in 136 N.J.L. 87, but for a clear understanding of our determination of the cause some repetition is necessary.
Petitioner, an employee of the County of Essex suffered an accident on May 16th, 1938, and secured an award from the Workmen's Compensation Bureau of 40% of partial permanent
total disability and for temporary compensation on March 15th, 1940. Payment in full of this award was concluded on August 30th, 1942. On August 7th, 1940, he filed an application for a pension because of physical disability with the Essex County Employee's Pension Commission which was granted February 7th, 1941. On February 27th, 1943, petitioner filed with the Workmen's Compensation Bureau a petition for an award for increased disability and on July 14th, 1943, a rule for judgment was entered under which his compensation was increased to 100% of permanent total disability. This judgment was, on appeal, affirmed by the Court of Common Pleas of Essex County, by the Supreme Court, 132 N.J.L. 584, and by this court, 134 Id. 129. After this last decision a motion was made to the Bureau to vacate its judgment of July 14th, 1943. This was denied and an appeal was taken therefrom to the Pleas which reversed the Bureau and vacated its judgment. The action of the Pleas was then reversed by the Supreme Court. It is from this judgment that the present appeal is taken.
The main argument of appellants is that because petitioner had become a pensioner the relationship of employer and employee had ceased to exist at the time of the filing of the petition for an increased disability award and therefore the Bureau lacked jurisdiction and its award is void.
There can be no question but that a pensioner is not entitled to an award for compensation. The Workmen's Compensation Act in R.S. 34:15-43 provides "Nor shall any former employee who has been retired on pension by reason of injury or disability be entitled under this section to compensation for such injury or disability" and this court has determined that a person cannot have the benefit of both the Pension and Compensation Acts. It is axiomatic that to be entitled to compensation the relationship of employer-employee must exist and there is no such relationship in the case of a pensioner. A person cannot be both an employee and a pensioner, he must be one or the other. DeLorenzo v. Board of Commissioners, 134 N.J.L. 7.
An employer-employee relationship existed at the time of the original award in the instant case. No attack has ever been
made thereon. It was only after the increased disability allowance had been granted by the Bureau, affirmed by the Pleas, the Supreme Court and the Court of Errors and Appeals that the attack began by the application to the Bureau to vacate its judgment. The judgment of the Bureau on the original petition, affirmed by this court, was res adjudicata as to all questions of law and fact thereby ...