On appeal from Division of Workmen's Compensation. Determination of facts and judgment.
This is an appeal from an order of dismissal entered by a Deputy Director of the Division of Workmen's Compensation of the Department of Labor, on November 29, 1954. It is here for trial de novo on the entire record.
The case was submitted to the deputy director on the following stipulated facts:
Since January 15, 1938 the petitioner had been regularly employed by the respondent as an operator at its sewage disposal plant in South River, New Jersey. On June 29, 1952 he sustained an injury to his left ankle as a result of an accident arising out of and during the course of his said employment. He continued working until August 7, 1952 when, because of the injury, he was compelled to cease work. Thereafter, an osteomyelitic condition developed, requiring amputation of the left foot and lower leg. The respondent, conceding its liability under the act, paid the petitioner full wages in the amount of $2,007.60 covering the period from August 8, 1952 to March 31, 1953, and in addition thereto paid the statutory compensation at the rate of $30 per week from April 1, 1953 to March 31, 1954. Respondent also paid all hospital and medical bills incurred as a result of the injury.
On March 4, 1953 the petitioner made application to the State Retirement System of New Jersey for retirement because of disability. His application was favorably acted on and on April 1, 1953, he was duly retired in accordance with the provisions of R.S. 43:14-31, dealing with accident disability retirements, at the rate of $216.53 per month, such payments to continue for the duration of petitioner's life. Petitioner then instituted formal proceedings under the Workmen's Compensation Act. To this claim the respondents filed an answer and an amended answer. In due course, respondents
moved to dismiss the appellant's petition for compensation because of the appellant's receipt of the disability retirement pension. This motion was based on the provisions of R.S. 34:15-43, which expressly forbids receipt of both a pension and workmen's compensation benefits by a public employee.
The question to be determined by this court is whether an employee of a municipality, who sustained a compensable accident arising out of and during the course of his employment, and who applied for and received a disability retirement pension from the State Retirement Fund, R.S. 43:14-1 et seq. , has the right to receive subsequent benefits under the Workmen's Compensation Act, R.S. 34:15-1 et seq.
"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 under the control or supervision of any commission, council or any other governing body of any municipality or any board of fire commissioners of such municipality or of any fire district within the state, who may be injured in line of duty shall be compensated under and by virtue of the provisions of this article and article 2 of this chapter (§ 34:15-7 et seq.), but no person holding an elective office shall be entitled to compensation. 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.
Nothing herein contained shall be construed as affecting or changing in any way the provisions of any statute providing for sick, disability vacation or other leave for public employees or any provision of any retirement or pension fund provided by law."
Petitioner-appellant has been retired pursuant to R.S. 43:14-31 and has received monthly benefits under the provisions of R.S. 43:14-34, which provides that a member upon retirement for accident disability shall receive a service retirement allowance if he has attained the age of seventy; otherwise he shall receive a retirement allowance which shall consist of an annuity which shall be the actuarial equivalent of his accumulated deductions at the ...