For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
This is an appeal, certified by this court on its own motion, from a judgment adverse to the plaintiff and entered in the Chancery Division.
The plaintiff Samuel Janovsky was employed by M. Raboy Flooring Co. and while at work he suffered a heart attack. He duly filed a claim under the Workmen's Compensation Law (R.S. 34:15-1 et seq.) and pending hearing thereon he made a claim for benefits under the Temporary Disability Benefits Law. R.S. 43:21-25 et seq. On this latter claim he was paid the sum of $780 by the defendant American Motorists Insurance Co., the carrier under the employer's private plan permitted by N.J.S.A. 43:21-32; this sum was paid in September 1950 upon the express understanding that the carrier would be subrogated to the extent thereof, in the event of a later award to the plaintiff under the compensation law. See R.S. 43:21-30. In December 1950 the plaintiff received a compensation award of $328.14 for temporary disability, and $3,437.50 for permanent partial disability, which was paid by Zurich Insurance Co., the employer's compensation carrier.
In July 1951 the plaintiff filed his complaint, naming the American Motorists Insurance Co. as defendant, and seeking to have the court adjudge that the plaintiff pay the sum of $780 into court, and determine the amount due the defendant and whether plaintiff is entitled to a counsel fee therefrom. The defendant filed its answer claiming the
sum of $780 without deduction and the cause was submitted for determination, without testimony but upon adequate factual admissions made at the pretrial conference. See Rule 3:16. The lower court duly rendered its opinion in which it found (1) that under R.S. 43:21-30 the defendant was "entitled to be subrogated in the full amount of $780.00," and (2) that no counsel fee should be allowed. Cf. R.S. 43:21-51. The plaintiff's appeal from the ensuing judgment attacks both findings.
Prior to 1948 provision had been made by our Legislature for available workers who were unable to obtain employment (R.S. 43:21-1 et seq.) and for workers disabled by accident or occupational illness covered by the compensation law. However, no provision had been made for workers who were unable to work because of accident or illness not thus covered. See Bogda v. Chevrolet-Bloomfield Div., G.M. Corp., 8 N.J. Super. 172, 177 (App. Div. 1950). To fill this gap the Legislature enacted the Temporary Disability Benefits Law (L. 1948, c. 110; N.J.S.A. 43:21-25 et seq.), which expressly stated in its title that it was "An Act to provide for the payment of disability benefits to certain persons with respect to accident and sickness not compensable under the workmen's compensation law." In section 5 (L. 1948, c. 110, p. 588) it provided that disability thereunder shall be compensable where a covered individual suffers accident or injury not arising out of and in the course of his employment "or if so arising not compensable under the workmen's compensation law" and in section 6 (L. 1948, c. 110, p. 589) it provided for "Nonduplication of benefits." This latter sectio (N.J.S.A. 43:21-30) provided that no benefits shall be required or paid under the Temporary Disability Benefits Law for any period with respect to which benefits, "other than benefits for permanent partial [ cf. L. 1952, c. 190] disability previously incurred" are paid or payable under any workmen's compensation law. The same section provided further, in effect, that if such workmen's compensation benefits are awarded after prior payments have
been made under the benefits law, the state fund or the private plan shall be subrogated to the extent of such prior payments.
In the light of the foregoing provisions we find the overriding legislative plan and its practical operation to be fairly evident. See Cox, Judge Learned Hand and the Interpretation of Statutes, 60 Harv. L. Rev. 370 (1947). Where an employee is disabled by accident or illness he will generally be entitled to benefits under either the compensation law or the benefits law, but not under both. If liability under the compensation law is clear, payment will be made thereunder, and if absence of liability under that statute is clear, payment will be made under the benefits law. If, however, as in the instant matter, the occurrence is in a twilight zone, with liability under the compensation law doubtful and dependent on the outcome of contested proceedings (cf. Neylon v. Ford Motor Co., 10 N.J. 325 (1952)), immediate payment to help tide the worker over during his inability to work should be permissible and, indeed, readily available, under the benefits law, with full reimbursement from any award subsequently rendered in the compensation proceeding. We are satisfied that under N.J.S.A. 43:21-30 this right of reimbursement or subrogation, as described in the statute, applies to the entire award including temporary and permanent disability allowances; the single express statutory exception in favor of benefits for permanent disability "previously incurred" simply refers to unrelated payments still being made on any earlier compensable accident or disease. If the plaintiff's contrary construction, namely, that the defendant's right of reimbursement is confined to the sum of $328.14, representing his temporary disability award, were adopted the plaintiff would receive duplicating benefits under both laws, thus ignoring the clear legislative policy, appropriately expressed and supported by administrative practice in the Division of Employment Security and judicial decisions elsewhere. Cf. Bryant v. Industrial Accident Commission,
37 Cal. 2 d 215, 231 P. 2 d 32 (Sup. Ct. 1951). It is worthy of note that plaintiff's construction would lead to the highly unfortunate result of dissuading immediate benefit payment where there is an issue of liability under the compensation law. See Aetna Life Insurance Co. v. The ...