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Kochen v. Consolidated Police and Firemen''s Pension Fund Commission

Decided: January 11, 1962.

STANLEY J. KOCHEN, PLAINTIFF-APPELLANT,
v.
CONSOLIDATED POLICE AND FIREMEN'S PENSION FUND COMMISSION, AN AGENCY OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



Goldmann, Foley and Lewis. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

[71 NJSuper Page 465] Plaintiff, Stanley J. Kochen, had been a member of the Fire Department of the City of Plainfield for over 15 years when, on August 10, 1959, he filed an application for service-connected disability pension. The Consolidated Police and Firemen's Pension Fund Commission

determined that he was permanently disabled, did not qualify for service-connected retirement, and he was only entitled to nonservice disability pension payments. The agency's "Opinion, Order and Judgment" was entered February 10, 1961, from which plaintiff appeals.

The pertinent statutory language of N.J.S.A. 43:16-2 reads:

"Any member of such police or paid or part-paid fire department who shall have received permanent disability while on duty shall be retired upon a service disability pension equal to 2/3 of his average salary.

A member of any such department who shall have served honorably, desiring to retire because of permanent disability not sustained while on duty , shall upon approval of his application or the application of his employer be retired on a nonservice disability pension equal to 1/2 of his average salary. * * *" (Emphasis supplied)

The liberalizing trend of the Legislature, in its consideration of police and firemen's pension rights, has been firmly expressed over the years. The original enactment (L. 1920, c. 160, sec. 2, p. 325) provided a 1/2 average salary pension for permanent disability received "in the performance of his duty," and reference is made in the statute to "injury or disease." Later, an amendment encompassed a nonservice-connected disability with a 1/3 average salary benefit (L. 1944, c. 253, sec. 2, p. 820). In 1946, the law was changed to delete the term "in the performance of his duty," and to substitute therefor the words "while on duty" (L. 1946, c. 284, sec. 1, p. 967). Then followed legislation to equalize the retirement rates (1/2 salary) for each class without regard to service or nonservice connection (L. 1947, c. 234, sec. 2, p. 898). Lastly, the amendment, an excerpt from which we have heretofore quoted, increased the service-connected disability rate to a 2/3 average salary benefit retaining the standard "while on duty" (L. 1959, c. 159, sec. 1, p. 630). No reference is made in this amendment to injury or disease.

Upon recommendation of the city physician and after receiving a written directive from his superior officer,

Kochen submitted his application to be retired. He was aided by the chief of the fire department and the city clerk in the completion of the required form. In it he alleged permanent disability while on duty and, in an accompanying statement, the fire chief certified that his departmental records showed and indicated applicant's disability was sustained while on duty as a fireman.

In a supplemental declaration, on a form furnished to him, plaintiff described the nature of his incapacity as: "Inadequate venous drainage of the left leg because of varices and former thromboses and ligations of the veins, resulting from a first attack of thrombophlebitis following pleurisy and pneumonia as the result of smoke poisoning on October 8, 1949." The periods of hospitalization relating to that accident were listed.

On October 1, 1959 Kochen was informed that the retirement committee of the Commission had rejected his claim for service-connected pension. The committee had determined that the evidence was insufficient for such a classification. The agency further advised that it would honor a nonservice claim or consider further evidence associating his disability with a service incident. Plaintiff, through counsel, thereupon submitted a report from the Muhlenberg Hospital reciting information respecting the numerous admittances of Kochen as a patient between October 25, 1949 and November 6, 1959, a letter from a treating physician, Dr. Robert H. Null, and copy of a communication from the compensation insurance carrier acknowledging, by a remittance of payment, Kochen's disability claim resulting from an accident on October 26, 1958.

The Commission, in rendering its determination on December 1, 1959, recognized applicant's permanent disability, characterized as "chronic thrombophlebitis," and concluded that it was of the opinion "that there is inconclusive evidence that this condition was directly caused by an accident suffered by Mr. Kochen in line of duty." It offered only a nonservice disability retirement. Counsel informed

the Commission of plaintiff's intention to appeal to the Superior Court, and suggested a formal hearing in order to establish a record for appellate review. Accordingly, the Commission scheduled a hearing for February 24, 1960, which proceeded solely upon the question of causation of disability as determined from the medical testimony and plaintiff's exhibits of case histories, records, reports and correspondence. Although pensioner's original application referred only to a 1949 accident, a requested amendment was impliedly permitted to embrace all occurrences during the course of employment. The conclusions of the Commission were founded upon a plenary consideration of the total evidence adduced at the hearing.

There is no need to discuss the voluminous details connected with the numerous accidents, illnesses and events alleged to be contributing factors to plaintiff's crippling incapacity. Sufficient for this opinion that we (1) observe the highlights of the October 1949 accident; (2) mention the nature of the injuries asserted to be service-connected; and (3) consider the proffered medical opinions.

(1)

On October 8, 1949, while fighting a fire, Kochen inhaled considerable smoke and gas. His protective clothing was thoroughly soaked with water. The following day, he left on vacation for Florida, and upon arrival in Miami was taken from the train directly to the Alton Road Hospital where he was hospitalized (from October 11, 1949 to October 24, 1949) for pleurisy and pneumonia. Upon returning to New Jersey, he was admitted to the Muhlenberg Hospital, where he remained until November 1, 1949; his condition was described as "virus pneumonia, unresolved." He reported for duty at the end of that month, and within a week thereafter he was recommitted to the hospital with a severe pain in the right chest. The recorded diagnosis was: "Bursitis, acute, subdeltoid."

(2)

Plaintiff commenced his services with the fire department on November 17, 1942, and continued in its employ until retirement except for an intervening period (March 31, 1944 to January 15, 1946) when, under military leave, he was with the United States Armed Forces. He experienced, over the years of employment, several injuries in the discharge of his duties as a fireman. All accidents were requested to be reported on forms furnished for that purpose, which forms were required to be filed in duplicate with the municipal clerk within three days after the accident occurrences. The municipal records reveal the following accident reports on his behalf, disclosing in summary:

Date of accident Nature of injury Circumstances

March 12, 1946 Badly torn ligaments Stepped into hole and

of the right ankle fell turning ankle while

beating out grass fire

April 7, 1949 Finger burns Tar ...


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