Price, Sullivan and Lewis. The opinion of the court was delivered by Sullivan, J.A.D. Lewis, J.A.D. (dissenting).
This appeal involves the issue of respondent Esther W. Rowe's right to benefits under the Temporary Disability Benefits Law. The Board of Review, Division of Employment Security (Division), held that she was entitled to benefits. New Jersey Bell Telephone Company, Mrs. Rowe's former employer, appeals.
The undisputed facts are as follows. On August 9, 1961 Mrs. Rowe was an employee of the New Jersey Bell Telephone Company (company). She was pregnant at the time. On that date she left work as a result of vaginal bleeding due to the pregnancy. Her husband telephoned the company on August 10, 1961, to say that Mrs. Rowe was resigning from her job on the advice of her doctor, and on August 17
the company received Mrs. Rowe's letter of resignation dated August 9, 1961.
The company does not dispute that Mrs. Rowe's condition on August 9, 1961, due to pregnancy, rendered her unable to continue to work, and that such condition and inability persisted until the birth of her child on October 5, 1961. On December 7, 1961 Mrs. Rowe, after recovering from the effects of pregnancy, reapplied for her former job but was not rehired due to "economic conditions."
A claim for benefits under the Temporary Disability Benefits Law was filed by Mrs. Rowe on August 21, 1961, and she was held to be eligible for benefits at the rate of $31 a week for the four weeks preceding and the four weeks following the birth of her child. The company has appealed this ruling on the ground that Mrs. Rowe was not eligible for any benefits under said law.
The purpose of the Temporary Disability Benefits Law in the system of social legislation enacted in this State is set forth in Butler v. Bakelite Co. , 32 N.J. 154, 160-162 (1960). In essence, the law was designed to protect persons in employment against wage loss due to nonoccupational sickness or accident by providing for the payment of benefits in such situations. Actually the law defines a "covered individual" as "any person who is in employment * * * or who has been out of such employment for less than two weeks."
Under the Temporary Disability Benefits Law an employee may be covered under either the state plan or a private plan. In the instant case the company had a private plan covering those of its employees who have two or more years of service. However, Mrs. Rowe, having had less than two years of service, was not covered by the private plan. Therefore, any benefits to which she might be entitled were under the state plan. N.J.S.A. 43:21-37.
The dispute herein stems from the nature of the sickness which rendered Mrs. Rowe unable to work. Originally the Temporary Disability Benefits Law provided coverage for an employee who suffered "any accident or sickness" which was
nonoccupational and disabling, N.J.S.A. 43:21-29, except that no benefits were payable to any person "for any period of disability due to pregnancy." N.J.S.A. 43:21-39(c).
Parenthetically, it is to be noted that at the time of the adoption of the Temporary Disability Benefits Law in 1948, the Legislature also amended the Unemployment Compensation Law to provide that where an unemployed individual suffers a disabling noncompensable accident or sickness and would be entitled to unemployment compensation benefits except for his inability to work, he should nonetheless receive such benefits, to be paid, however, from the state fund created under the Temporary Disability Benefits Law (rather than from the Unemployment Compensation Fund). The amendment, however, contained a proviso that no benefits should be payable "for any period of disability due to pregnancy." N.J.S.A. 43:21-4(g)(2), L. 1948, c. 110, § 20. The amendment in subsection (g)(7) also provided that no benefits shall be payable "for any period of disability commencing while such individual is a 'covered individual' as defined in * * * the Temporary Disability Benefits Law." L. 1950, c. 172, § 2.
In 1961 (L. 1961, c. 43, effective July 1, 1961) the Legislature amended the Temporary Disability Benefits Law to permit, inter alia , the payment of benefits for a disability due to pregnancy during the four weeks immediately before the expected birth of child and the four weeks following the termination of the pregnancy. This was accomplished by amending section 29 (N.J.S.A. 43:21-29) to read:
"Disability shall be compensable subject to the limitations of this act, where a covered individual suffers any accident or sickness not arising out of and in the course of his employment or if so arising not compensable under the workmen's compensation law (Title 34 of the Revised Statutes), and resulting in his total inability to perform the duties of his employment. For the purposes of this act, pregnancy may be deemed to be a sickness during the 4 weeks immediately preceding the ...