Gaulkin, Collester and Labrecque. The opinion of the court was delivered by Gaulkin, S.j.a.d.
[104 NJSuper Page 449] Detlefs, a Westfield fireman, was injured while examining his daughter's car at the firehouse in preparation for repairing a malfunction therein. He suffered the loss of an eye, facial scarring and injuries to his head, neck, back and left shoulder. Because of those injuries, he retired on a disability pension pursuant to N.J.S.A. 43:16-2.
Nevertheless, predicated upon N.J.S.A. 34:15-43, he demanded that Westfield pay the medical, surgical and hospital expenses he had incurred. Westfield's insurance carrier (the real party in interest in this appeal, as we shall see) refused to pay these expenses on the ground that the injuries were not compensable because not work-connected. Thereupon Detlefs filed his petition herein. The Division adjudged that the injury was work-connected and that the carrier was liable for past and future medical expenses. In addition, the Division adjudged that, had Detlefs not been pensioned, "the total award in this case would be over $17,600" based on "225 weeks for the loss of the eye and the enucleation, and 165 weeks for 30 per cent of partial total [for his other injuries] or a total of 390 weeks of permanent compensation," plus "medical reimbursements and payments * * * over $2,000." "Therefore," said the judge of compensation, "approximately 20 per cent of that amount is $3,500, and I will assess against the respondent that amount for petitioner's counsel fee * * *," even though, because of the pension, the carrier was obliged to pay only the approximately $2,000 of medical expenses. The County Court affirmed, and awarded an additional $2,000 counsel fee, again all payable by the carrier.
The carrier appeals on the grounds that (a) Detlefs had no right to file a petition in the Division, even for the medical expenses, because he was receiving the disability pension, and therefore the judgment is void; (b) even if he had the right to file the petition, there should have been no award because the injuries were not work-connected; and (c) even if it be determined that the injuries were work-connected, the counsel fees should have been calculated only upon the approximately $2,000 of medical reimbursement and not upon said $17,600.
We agree with the County Court that the injuries were work-connected. There was testimony which the triers of the
facts were entitled to accept that the firemen were permitted to work on their cars to while away the time while on duty, and that what Detlefs was doing when he was injured was within the scope of that permission. Cf. Yurochko v. Beckley Perforating Co., 61 N.J. Super. 1 (App. Div. 1960); Tocci v. Tessler & Weiss, Inc., 28 N.J. 582 (1959); Complitano v. Steel & Alloy Tank Co., 34 N.J. 300 (1961).
We hold that it was proper for Detlefs to file the petition for compensation.
The carrier's argument may be summarized as follows: N.J.S.A. 34:15-43 bars Detlefs from all workmen's compensation benefits, citing Reinhold v. Town of Irvington, 134 N.J.L. 416 (Sup. Ct. 1946). It is true that N.J.S.A. 34:15-43 was amended after the Reinhold case (L. 1948 c. 269) to provide "that such employee, despite retirement, shall, nevertheless, be entitled to the medical, surgical and other treatment and hospital services as set forth in section 34:15-15 of the Revised Statutes." But, says the carrier, the statute places the duty to provide such medical treatment upon the municipality or upon the Division of Pensions, not as a workmen's compensation benefit but as part of the pension laws. Therefore, argues the carrier, the enforcement of that right to treatment is not within the jurisdiction of the Division and is not covered by its policy.
The County Court called this argument "a strange one" and disposed of it in the following language:
"* * * It is true that the liability for medical benefits is upon the Town of Westfield, the employer (N.J.S. 34:15-15); but the Town has purchased insurance from the carrier to cover that liability. The provision for medical benefits for public employees who have retired on a disability pension was first added to the statute by an amendment of ...