Goldmann, Lewis and Matthews. The opinion of the court was delivered by Goldmann, P.J.A.D.
Petitioner Hillman appealed, pursuant to R. 2:2-3(a)(2), formerly R.R. 4:88-8(a), from a final decision of the Board of Trustees of the Public Employees' Retirement System of New Jersey (Board) denying his application for an accidental disability pension under N.J.S.A. 43:15A-43. We remanded the matter so that the Board might hold a hearing and determine the factual issue as to whether Hillman's alleged disability was such that he qualified for the pension he sought.
Hillman was employed by the State Department of Transportation for almost 11 years as a maintenance man and was a member of the Public Employees' Retirement System. His health was apparently good and he worked regularly On March 15, 1967 he worked from 7:30 A.M. to 4 P.M. in the Brielle Circle Maintenance Yard, returned home, had supper, relaxed and then went to bed. At about 11 P.M. he received a telephone call from his superior telling him to report to work because of a snow emergency. Upon arrival at the Brielle yard he was assigned to operate a front-end loader, a piece of equipment he was not accustomed to operate in that its wheels were smaller and it was difficult to maneuver. The weather was cold, snowy and windy. At about 1:30 A.M., while clearing the snow, a part of the loader dropped into a hole and the steering wheel was wrenched
out of Hillman's hands. As a result of attempting to regain control of the wheel he experienced severe chest and arm pains, shortness of breath and inability to stand erect. He was taken to a hospital where he remained until discharged on March 23 with a diagnosis of "pulmonary edema, acute congestive heart failure due to arteriosclerotic heart disease." He never returned to work thereafter. All doctors who examined him concluded that he had suffered a serious heart attack and was unable to continue his usual employment.
On May 17, 1968 Hillman filed an application for accidental disability retirement pursuant to N.J.S.A. 43:15A-43, on forms promulgated by the Board. Attached was a report by his personal physician. Subsequently, after learning of the options available to him, Hillman on June 7, 1968 filed a revised application for accidental disability retirement, requesting retirement effective July 1, 1968. On June 20, 1968, and as required by the statute, he was examined by Dr. Barnett, the doctor designated by the Board, who issued his report to the Division of Pensions on July 9.
Hillman attained the age of 65 on July 12, 1968.
The medical panel of the Division of Pensions completed its evaluation form on July 30, 1968 and, on August 2, submitted its report to respondent Board. The report stated that Hillman had arteriosclerotic heart disease and hypertensive cardiovascular disease which had reduced him to a state of total incapacity. The panel was of the opinion that his condition was not based on an accidental disability but should be considered as an ordinary disability. The report stated that "There is no proven myocardial infarction present" -- this in contrast to Dr. Barnett's report wherein he found "marked myocardial damage present * * * and an old healed inferior wall myocardial infarction."
The Board considered and denied Hillman's application at its September 10, 1968 meeting. Its reasons were given in the notice of final determination sent to Hillman on September 24:
* * * Your application was denied on the basis that you are not disabled as the direct result of the traumatic event occurring on March 16, 1967, and that at the time of consideration by the Board of Trustees (September 10, 1968) you had passed your 65th birthdate.
The medical evidence did, however, substantiate that you are incapacitated for the performance of your duties; and, since you have passed your 60th birthdate, you were not eligible for Ordinary Disability Retirement and should therefore be retired on a Service Retirement allowance. Your retirement was approved on the basis of a Service Retirement effective as of July 1, 1968, without prejudice to appeal of the Board's action on your disability application. * * *
Hillman then retained counsel who formally requested a hearing on the merits. The Board met on October 15, 1968 and on October 24 informed counsel that the request was denied on the ground that the question of petitioner's disqualification for accidental disability retirement due to his age was a matter of law and thus properly reviewable by the Appellate Division. The Board construed N.J.S.A. 43:15A-43 as requiring it to look to the time when it acted on the application in determining if Hillman had not yet attained age 65, and not to the date of the accident nor the date when the application was filed. Accordingly, since Hillman had already attained 65 on September 10, 1968, when the Board first considered his application, it had denied the application.
N.J.S.A. 43:15A-43 provides, in pertinent part:
A member who has not attained age 65 shall, upon the application of the head of the department in which he is employed or upon his own application or the application of one acting in his behalf, be retired by the board of trustees, if said employee is permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties, on an accidental disability allowance.
The application to accomplish such retirement must be filed within 5 years of the original traumatic event, but the board of trustees may consider an application filed after the 5-year period if it can be factually demonstrated to the satisfaction of the board of ...