Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendants Barrett Division of the Allied Chemical & Dye Corporation, and its insurer, The Travelers Insurance Company, appeal from a determination and order of the Division of Employment Security, Disability Insurance Service, in the Department of Labor and Industry, granting plaintiff Potts disability benefits under the Private Plan section of the Temporary Disability Benefits Law, N.J.S.A. 43:21-25 et seq.
Travelers had in October 1952 issued a policy under the Private Plan section (N.J.S.A. 43:21-32 to 36) covering Barrett Division's employees. The policy provided, in part, that the company would pay certain disability benefits
"If an Employee shall be disabled and prevented from performing any and every duty pertaining to the Employee's work or employment as result of accidental bodily injury or bodily disease not hereinafter excepted, * * *." (Italics ours)
We are advised that there apparently was some question as to whether this provision was sufficiently broad to cover mental disease. At the request of the Approval and Termination Section of the Division of Employment Security, Travelers on October 20, 1955 amended the paragraph to provide that disability benefits would be paid
"If an insured Employee shall be disabled and prevented from performing the duties of his employment as a result of injury or sickness not hereinafter excepted, * * *." (Italics ours)
On December 21, 1956 Potts, an employee of the Barrett Division, shot and killed a woman and then, in an apparent attempt to commit suicide, turned the gun upon himself and shot out his right eye. He was charged with murder and confined to the city hospital until February 7, 1957, when he was transferred to the county jail after arraignment. He re-entered the hospital on May 1, 1957 because of an infection in the wound, and remained there under
medical care and treatment until May 10 when he was returned to the jail. Potts had meanwhile been indicted for murder and pleaded not guilty, but he later withdrew the plea, entered a plea of non vult to second degree murder, and received a sentence of 15 to 20 years in State Prison.
Potts filed a claim for disability benefits on February 27, 1957, describing his disability as "Self inflicted wound." Travelers denied payment, claiming that a self-inflicted wound was not covered under its policy. Potts then filed a complaint with the Division of Employment Security, Disability Insurance Service. A hearing was held and a determination of facts and order filed awarding disability benefits to Potts from December 21, 1956 through February 28, 1957, and from May 1 through May 9, 1957, less the required waiting period. From this order defendants appeal.
The first reason assigned by the hearing officer for awarding disability benefits was the above-quoted change in the coverage of the policy. He held that the insurer, by removing the words "accidental bodily injury or bodily disease" from its policy and substituting in their place the words "injury or sickness," indicated an intention to pay disability benefits under circumstances such as are here present.
The hearing officer next pointed out that although the Legislature had provided that no benefits were payable under the State Plan "for any period of disability due to willfully and intentionally self-inflicted injury, or to injury sustained in the perpetration by the claimant of a high misdemeanor," N.J.S.A. 43:21-39(d), it had not extended this exception to Private Plan policies. A Private Plan insurer could be more liberal in its policy limitations than the State Plan, and this by reason of N.J.S.A. 43:21-32(b), which provides that the Division of Employment Security shall approve a private plan if it finds that the eligibility requirements for benefits thereunder "are no more restrictive than is provided in this act for benefits payable by the ...