Eastwood, Jayne and Clapp. The opinion of the court was delivered by Eastwood, S.j.a.d.
[30 NJSuper Page 137] This appeal concerns itself with the determination of the defendant-respondent, State Employees' Retirement System of New Jersey (hereinafter referred to as the "System"), that claimant-appellant, Pearl Rosenthal, widow of Louis Rosenthal, a member of the System, is not entitled to payment pursuant to the provisions of R.S. 43:14-37, reading as follows:
"Upon the death of a member in active service in the actual performance of duty and not the result of his willful negligence, an accident death benefit shall be payable, if a report in a form acceptable to the retirement board, of the accident is filed in the office of the retirement system within sixty (60) days next following the accident; provided, evidence is submitted to the board of trustees proving that the natural and proximate cause of his death was the performance of duty on his part at some definite time and place.
No such application shall be valid or acted upon unless it is filed in the office of the retirement system within two (2) years of the date of the accident; but the retirement board may waive such time limit, for a reasonable period, if in the judgment of the board the circumstances warrant such action."
In considering this appeal, we have reached the conclusion that the claimant did not file a report of the accident in the office of the System in compliance with the statutory requirement. Consequently, it becomes unnecessary to discuss and determine whether the death of claimant's decedent was caused by an accident within the meaning of the statutory provision.
Suffice it to say, Rosenthal, while working alone on January 2, 1951 as an employee of the Newark Housing Authority in scraping a product known as "morine" off the ceiling of a room in an apartment, and having scraped the entire ceiling with the exception of a small portion in the corner over a radiator, was discovered in the apartment "lying on the top of the radiator" with one arm between the radiator and the wall and with his face on the radiator which was "red hot." The ladder he had been using was lying on its side on the floor in front of the radiator. Upon examination, he was pronounced dead.
The hearing before the board of trustees of the System was deferred pending the determination by the Workmen's Compensation Division of claimant's petition for compensation. The Compensation Division held that the decedent had suffered a compensable accident and a suitable award was made.
The board of trustees of the System found that a report of the accident had not been filed within the limited statutory
period and also that the decedent had not suffered an accident as defined in the statute.
We will proceed to a discussion of what we consider is the dispositive issue, to wit: was a report of the accident filed within the prescribed statutory period of time?
The first notice of the decedent's death came to the respondent on February 8, 1951, from the employer, stating that the employee had passed away, without any mention therein that his death was caused by or connected with an accident. The board, under date of February 13, 1951, thereupon sent the decedent's widow Report Form PD-2, upon the filing of which the widow would have been allowed to withdraw the accumulated deductions standing to the credit of her husband or to purchase an annuity. It was not until April 6, 1951 that the board received any information that the claim was based upon an accidental death. On that date the board received a letter from Mr. Martin J. Brady, of the law firm of Parsonnet, Weitzman & Oransky, Mrs. Rosenthal's attorneys, stating that a petition was pending before the Workmen's Compensation Division, wherein it was asserted that Mr. Rosenthal's death was the result of an accident. On May 11, 1951 form PD-2 was returned, signed by Mrs. Rosenthal, there having been deleted therefrom the words "from natural causes and not the result of an accident." The secretary of the System testified: "We accepted the PD-2 form as her application for an accidental disability allowance," and wrote Mrs. Rosenthal on May 16, 1951 acknowledging receipt of the completed form and stating:
"In view of the fact that we were given to understand that a claim is pending before the Workmen's Compensation Bureau as a result of the alleged death on duty, we feel that payment of this claim should be held ...