Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Eastwood, S.j.a.d.
The petitioner, Eugene Flynn, a paid fireman in the employ of the City of Union City, suffered injuries sustained in a fire on April 4, 1952. He filed a petition for workmen's compensation and prior to adjudication of his claim, on the application of the city, he was retired on pension by reason of his disability from the injuries suffered in the aforementioned accident. Thereafter, at the adjourned hearing date, on motion of the respondent, Flynn's petition was dismissed on the ground that R.S. 34:15-43 barred recovery under the Workmen's Compensation Act in that he had been retired on a disability pension. On appeal to the Hudson County Court the action of the deputy director was affirmed, 30 N.J. Super. 467, and it is from this judgment that the plaintiff appeals.
The plaintiff contends that he was not a former employee within the meaning of R.S. 34:15-43; that he had a vested right in compensation payments as of the date of the accident and that if R.S. 34:15-43 operates to bar his recovery, it is unconstitutional in that it takes away his vested right without due process of law.
The State has applied for and was granted permission under the rules to argue as intervenor in support of the constitutionality of the statute.
The pertinent parts of R.S. 34:15-43 provide:
"Every employee of the State, county, municipality or any board or commission, or any other governing body, including boards of education, and also each and every active volunteer fireman doing public fire duty and also each and every active volunteer, first aid or rescue squad worker doing public first aid or rescue duty under the control or supervision of any commission, council or any other governing body * * * who may be injured in line of duty shall be compensated under and by virtue of the provisions of this article and article two of this chapter (sections 34:15-7 et seq.). No former employee who has been retired on pension by reason of injury or disability shall be entitled under this section to compensation for such injury or disability; * * *."
The substance of this exclusionary feature has been in the Workmen's Compensation Act continuously since 1931, and has been recognized and followed by our courts.
In the case of DeLorenzo v. Board of Com'rs of City of Newark , 134 N.J.L. 7, 9 (E. & A. 1946), the status of the petitioner was found to be significant, wherein it stated:
"We distinguish between the status of a person receiving a pension and a person receiving workmen's compensation. The relationship of an employer and an employee is not consistent with the position of a pensioner as such, for the reason that a pensioner severs all relationship of employer and employee, he has no further duty to his employer nor is he entitled to any of the benefits which may accrue to an employee. An employee receiving workmen's compensation is under the relationship of employee and employer, as is indicated by the fact that such employee must continue to be carried on the public payroll pursuant to R.S. 34:15-44. The plaintiff must be one or the other and as he admittedly now receives workmen's compensation he is an employee. We therefore hold that the plaintiff cannot have the benefits of both statutes. Judson v. Newark Board of Works Pension Association , 132 N.J.L. 106; affirmed 133 N.J.L. 28."
In the case of Reinhold v. Town of Irvington , 134 N.J.L. 416 (Sup. Ct. 1946), the plaintiff sustained injury and prior to his hearing on a workmen's compensation claim, was placed on pension by the municipality, which pension status was held a bar to payment on his workmen's compensation claim. He contended, as does the petitioner in the matter sub judice , that his status was to be determined as of the date of the injury complained of, in measuring his qualification for
workmen's compensation benefits. The court denied the petitioner's contentions, ...