On appeal from the Division of Workmen's Compensation. Determination of facts and opinion.
This is a workmen's compensation case. Respondent town appealed from an order of the Division of Workmen's Compensation on three grounds: (1) the respondent-appellant is entitled to reimbursement under the reimbursement section of the Compensation Act under N.J.S.A. 34:15-40; (2) the amount of medical payments made by the petitioner; (3) the town's liability for said payments in that the medical services were unauthorized.
At the hearing two of the three grounds were abandoned and the only question for this court to consider is whether or not the town was entitled to a credit for medical payments made pursuant to N.J.S.A. 34:15-43 (additional medical payable to public employees on disability pension).
The facts are not in dispute. Petitioner was a policeman employed by the Town of Kearny. On June 12, 1959, while in the performance of his duties, he was struck by an automobile. His injuries were severe, including the amputation of his left leg between the ankle and the knee. Petitioner was paid his full wages during his period of recuperation. Respondent waived all claims for reimbursement of these wages. Petitioner returned to work on June 23, 1960. During this period the respondent paid medical and hospital bills for the petitioner totalling $7,137.38. Petitioner originally filed a claim for permanent compensation but this was discontinued on December 7, 1961 because on November 1, 1960 he had accepted a disability pension.
Petitioner also brought suit against a third-party tortfeasor for his injuries. This suit resulted in a settlement of $9,000. Upon receipt of the monies petitioner paid to respondent the sum of $4,573.81 in full settlement and release of the town's
lien of $7,137.38. This was based upon the petitioner's receiving the benefit of the attorney's fee of one-third of the original settlement, plus costs of suit amounting to $186.44.
It is stipulated that subsequent to the town's reimbursement and the acceptance by petitioner of a pension, further medical bills were incurred by him in the sum of $1,046.81. These were paid by petitioner.
As stated, the question now presented is whether the town is entitled to the benefit of the reimbursement section of the Workmen's Compensation Act, N.J.S.A. 34:15-40 and to receive a credit or setoff for the balance of the monies received by the petitioner from the third-party tortfeasor. If allowable, respondent has available to its credit the sum of $1,862.62 minus counsel fee.
Where a public employee has received a disability pension, would the medical payments that he incurs subsequent to his disability pension be subject to his employer's right of contribution, where the employer has received monies from a third-party tortfeasor?
N.J.S.A. 34:15-43 reads as follows:
"* * * No former employee who has been retired on pension by reason of injury or disability shall be entitled under this section to compensation for such injury or disability; provided, however, that such employee, despite retirement, shall, nevertheless, be entitled to the medical, surgical and other treatment ...