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Getty v. Prison Officers'' Pension Fund

Decided: November 16, 1964.

PHILIP V. B. GETTY, APPELLANT,
v.
PRISON OFFICERS' PENSION FUND, STATE OF NEW JERSEY, RESPONDENT



Gaulkin, Foley and Collester. The opinion of the court was delivered by Foley, J.A.D.

Foley

The Prison Officers' Pension Fund, State of New Jersey (Fund), denied appellant's application for retirement under N.J.S.A. 43:7-12, and he appeals.

Getty, an employee of the Department of Institutions and Agencies, was in charge of a soap factory in Bordentown Reformatory from 1943 to 1958. On July 9, 1958 his physician, Dr. Robert B. Wever, found him to be suffering from emphysema, which the doctor attributed to caustic fumes and industrial soap dust to which Getty had been exposed, and which he inhaled, during the 15 years in which he had been employed in the soap factory.

On July 11, 1958, on the recommendation of his physician, Getty applied for and was granted a three months' leave of absence. In November 1958 he notified his superiors that he was undergoing further physical examinations and requested an additional three months' leave of absence. The request was denied. Getty did not return to work and, on December 8, 1958, the Department "involuntarily resigned" Getty from his position, effective as of December 3, 1958, for having been absent without permission in excess of five consecutive days, in violation of Civil Service Rule 60. Getty appealed to the Department of Civil Service which, on March 23, 1960, reversed the involuntary resignation, but ordered:

"Appellant must decide whether he intends to resume his old position or take any other job offered in the state service, or he must face a consequence of being resigned for continued ill health."

Before the Department of Civil Service announced its decision, the State attempted to find another position for Getty at a comparable salary where he would not be subjected to deleterious dust and vapors. No suitable position was available then, or after the decision. On April 29, 1960 Dr. Wever ordered Getty "never [to] subject himself to these toxic chemicals again." On June 27, 1960 the Bordentown Reformatory informed Getty that his employment was terminated, and after an exchange of correspondence the Department advised

Getty on August 2, 1960 that no substitute position was available and that he was considered to have resigned voluntarily for the medical reasons expressed in Dr. Wever's letter of April 29, 1960. Getty received this advice on August 4 and immediately wrote to the Department that he had not resigned, and demanded a hearing. On September 14, 1960 he was advised by the Department that his employment was terminated for the reasons previously stated and that he would be denied a hearing.

On November 15, 1960 Getty filed an "Application for service disability retirements," which he supplemented on April 3, 1961. According to Getty's brief, the Fund "tabled the application July 24, 1961, pending an opinion from the Attorney General." The application lay dormant until Getty's attorney wrote the Fund on January 3, 1962. We are unable to find in the record or in the briefs of the parties any explanation of the inordinate delay in the processing of Getty's application for service disability retirement, and we pause to state our disapproval of such delay.

The Fund had Getty examined by Dr. Carabelli on March 27, 1962. Dr. Carabelli reported a diagnosis of (1) emphysema, pulmonary, moderately severe, (2) history of asthma, bronchial, (3) history of hay fever, fall type, and (4) an old, healed fracture of the second rib, left side. He was of the opinion that the emphysema was caused by the asthma and was not related to or aggravated by Getty's work in the soap factory. Dr. Carabelli's report was submitted to the Fund's medical review board which, on May 11, 1962, rendered an opinion "that the applicant not be recommended for Disability Retirement." Notwithstanding the opinions of Dr. Carabelli and the medical review board, the Fund had Getty examined by Dr. Werner J. Hollendonner on June 18, 1962. Dr. Hollendonner reported that he found no emphysema and no objective evidence of respiratory or cardiovascular impairment; that Getty was afflicted by a typical hay fever syndrome, probably due to rag weed; and that he did not "feel that there was any likelihood that working in the soap factory

actually caused the disease." However, he said that the symptoms of this ailment can be provoked or aggravated by exposure to a dusty environment, and he recommended that Getty avoid exposure to any dusty atmosphere in the future.

On September 27, in total disregard of N.J.S.A. 43:7-12 and without a hearing, the Fund informed Getty's attorney that the application for pension had been denied "on the ...


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