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In re Application of Howard Smith

Decided: January 26, 1970.

IN THE MATTER OF THE APPLICATION OF HOWARD SMITH, PETITIONER, TO THE BOARD OF TRUSTEES OF THE POLICE AND FIREMEN'S RETIREMENT SYSTEM FOR ACCIDENTAL DISABILITY RETIREMENT


Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Kilkenny, P.J.A.D.

Kilkenny

[108 NJSuper Page 316] Petitioner Howard Smith (hereinafter Smith) appeals from a final decision of the Board of Trustees of the Police and Firemen's Retirement System of New Jersey (hereinafter board) awarding him accidental disability pension benefits, effective at the expiration of the workmen's compensation benefits Smith had been receiving. Smith contends that the effective date fixed by the board for receiving pension benefits was erroneous. He argues for an earlier effective date -- one or the other of three alternatives hereinafter noted.

A brief recital of the facts and pertinent statutes is necessary to put the issue in proper focus.

Smith commenced employment with the Town of West Orange as a fireman on March 15, 1950. He thereby became a member of the Retirement System and entitled to the benefits thereunder. N.J.S.A. 43:16A-1 et seq.

On August 26, 1964, while in the course of his employment as a fireman, Smith slipped and fell, injuring his left knee and ankle. Although the circumstances were not dramatic -- he slipped on the firehouse floor -- the consequences were serious. He never worked as a fireman thereafter. He was absent from work on sick leave from August 27 to November 20, 1964, when he applied for accidental disability retirement, requesting retirement as of January 15, 1965. His full salary was continued by his employer until September 30, 1965. On February 19, 1965 the board denied his application for retirement under N.J.S.A. 43:16A-7 for failure to present sufficient evidence of disability.

On March 29, 1965 Smith filed a petition for workmen's compensation benefits. On November 20, 1966 the Division of Workmen's Compensation made an award in his favor, allowing him 65% loss of the use of his left leg -- 14-6/7 weeks temporary at $45 a week, amounting to $668.57, and 178-3/4 weeks of compensation at $40 a week, amounting to $7150 for permanent disability. This award was subsequently affirmed by the appellate courts.

On November 14, 1967 a hearing was held in the Division of Pensions, based on Smith's appeal from the board's decision denying his application for disability retirement. The hearing officer on March 26, 1968 recommended to the board that its original decision be reversed and the application for disability retirement approved. On May 28, 1968 the board granted Smith accidental disability retirement, effective June 1, 1968. The retirement date was subsequently modified to May 1, 1968, the date upon which Smith's workmen's compensation payments terminated.

Smith objected to the effective date designated by the board, contending, alternately, that the effective date of retirement should be December 8, 1964 (the termination of 14-6/7 weeks of temporary disability), January 15, 1965 (the date requested in his retirement application), or October 1, 1965 (payment of his full salary having been terminated on September 30, 1965 by his employer). Refusal of the board to change the effective date of Smith's retirement, or to accede to any one of his suggested alternatives, has prompted this appeal by him.

Smith notes the fact that on December 18, 1967 L. 1967, c. 250 became effective. Section 30(b) thereof, N.J.S.A. 43:16A-15.2(b), provides:

No application for retirement benefits may be approved by the board of trustees while the member, applying for such benefits, is in receipt of periodic benefits under the Workmen's Compensation Law.

The 1967 amendments and supplements to L. 1944, c. 255, in their 32 sections, made many changes in the 1944 statute. However, Smith maintains that L. 1967, c. 250, § 30 is only prospective in application and not retroactive so as to affect his retirement date.

Dollarwise, Smith points out that his annual retirement payment was fixed at $5077.20, which amounts to $97.65 a week. By the board's applying L. 1967, c. 250, § 30 retroactively and disallowing pension benefits while Smith was receiving periodic workmen's compensation payments, Smith argues that he has been pecuniarily aggrieved because the compensation payments are less than the pension benefits. Accordingly, he strives on this appeal to relate the ...


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