Colie, Eastwood and Jayne. The opinion of the court was delivered by Eastwood, J.A.D.
Plaintiff appeals from a determination of the Division of Employment Security, Department of Labor and Industry, denying temporary disability benefits under a private insurance plan as authorized by P.L. 1948, c. 110, p. 590, § 8 (R.S. 43:21-32).
To clearly understand the issue, it is necessary to elaborate somewhat on the facts. Plaintiff was initially employed by defendant on July 16, 1943, as a packer and continued in that employment until December 3, 1943, when he was laid off; he was re-employed on April 23, 1945, as a material handler, in which capacity he worked until January 17, 1949, when he was transferred to the classification of a "unitizer," considered to be "light work"; during the course of a routine medical examination by the plant physician on December 29, 1948, it was discovered that plaintiff had an incomplete left inguinal hernia. After working approximately one month as a unitizer, plaintiff applied for and was granted a leave of absence to undergo a hernial operation; for the period from February 12, 1949, to April 5, 1949, he received temporary disability benefits; upon his return, plaintiff resumed his work as a unitizer from April 5, 1949, to June 3, 1949, when, together with other employees, he was laid off due to lack of work. He applied for and received unemployment compensation benefits until July 21, 1949. These benefits were terminated when he filed a claim for temporary disability benefits under the employer's private insurance plan for the period commencing June 3, 1949. The employer's insurer denied plaintiff's claim for payment of temporary disability benefits on the ground that he was able to perform the duties of his employment. Subsequently, plaintiff instituted an action for the payment of temporary disability benefits for the period in question, claiming that during that period he was convalescing
from the hernia operation and was not fit to perform the duties "of his employment" as a material handler until August 15, 1949. The hearing officer denied his claim on the ground that "the claimant, not being under the care of a legally licensed physician during the period of his disability, is not entitled to disability benefits from June 3 to August 15, 1949." This appeal ensued.
This issue raises three questions for our determination, viz.: (1) was the plaintiff's unemployment caused by lack of work; (2) was it caused by a non-occupational sickness "resulting in his total inability to perform the duties of his employment"; and (3) assuming his unemployment was caused by a non-occupational illness, did plaintiff comply with the pertinent provision of the statute P.L. 1948, c. 110, p. 595, § 15 (R.S. 43:21-39 (b)), and insurer's policy, by establishing that he was "under the care of a legally licensed physician."
This is a case of novel impression. Our research fails to reveal any decisions by our courts or the States of Rhode Island, California or New York, where temporary disability benefits plans are in effect, but which differ somewhat from the provisions of our statute.
The Temporary Disability Benefits Law, P.L. 1948, c. 110, p. 586 (R.S. 43:21-25 et seq.), was enacted under "The public policy of this State, already established, is to protect employees against the suffering and hardship generally caused by involuntary unemployment. But the unemployment compensation law provides benefit payments to replace wage loss caused by involuntary unemployment only so long as an individual is 'able to work, and is available for work,' and fails to provide any protection against wage loss suffered because of inability to perform the duties of a job interrupted by illness. Nor is there any other comprehensive and systematic provision for the protection of working people against loss of earnings due to nonoccupational sickness or accident * * * to fill the gap in existing provisions for protection against the loss of earnings caused by involuntary unemployment, by extending such protection to meet the hazard of earnings loss
due to inability to work caused by nonoccupational sickness or accident." P.L. 1948, p. 586, § 2 (R.S. 43:21-26).
P.L. 1948, p. 588, § 5 (R.S. 43:21-29) defines compensable disability as follows:
"Disability shall be compensable subject to the limitations of this act, where a covered individual suffers any accident or sickness not arising out of and in the course of his employment or if so arising not compensable under the workmen's compensation law (Title 34 of the Revised Statutes), and resulting in his total inability to perform the duties of his employment."
Under Section 15 (R.S. 43:21-39), "* * * no benefits shall be payable under the State plan to any person * * * (b) for any period during which a claimant is not under the care of a legally licensed physician * * *." The employer's ...