For affirmance and modification -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the Court was delivered by Francis, J.
We are concerned here with an injured fireman's right to accidental disability retirement pension benefits. The problem arose because the fireman obtained an award of workmen's compensation after his application for disability retirement had been filed but before the Board of Trustees of the Police and Firemen's Retirement System had reached its final decision granting the disability pension. The unusual circumstances which created the problem are detailed below.
Petitioner Howard Smith became a member of the West Orange Fire Department in 1950. At the inception of his employment, he enrolled in the Police and Firemen's Retirement
System and thereafter made whatever monetary contributions were required of him. On August 26, 1964, he suffered an accident arising out of and in the course of his employment and resulting in severe injuries to his left leg, knee and ankle. He has been unable to return to work since that date.
On November 25, 1964, pursuant to N.J.S.A. 43:16A-7, he filed an application with the Board for retirement on the ground that the August 26, 1964 leg injury totally and permanently disabled him "for the performance of his usual duty and of any other available duty in the department, which his employer is willing to assign to him." He requested that the pension become effective as of January 15, 1965. For some reason, not entirely clear from the record, on February 19, 1965 the application was denied. Thereafter on March 30, 1965 Smith took an administrative appeal from that denial. After a hearing on the appeal, the Board reversed its decision and on February 24, 1969, almost 47 months after the appeal was taken, it awarded the sought for pension, payments to begin May 1, 1968.
In the course of those 47 months, other significant circumstances complicated the situation. It was obvious that even if Smith was not entitled to a disability pension, he had a legitimate claim for benefits under the Workmen's Compensation Act. He had two years from the date of the accident within which to file a petition for such compensation, N.J.S.A. 34:15-51, and that period would have expired on August 26, 1966. Thus, if his contemplated administrative appeal from the pension denial was not successfully terminated before that date, his workmen's compensation remedy would no longer be available. To safeguard that remedy (even though the weekly compensation rate was $40 while the weekly pension rate would be $97.65), on March 29, 1965 he instituted the workmen's compensation action against the Town of West Orange. Obviously, protection of that remedy by his timely action was necessary. The record shows that when Smith unsuccessfully sought the disability
pension he had an obligation to support a wife and five minor children ranging in age from less than two and one-half to thirteen and three-quarters years of age. Moreover, the Town of West Orange which had been carrying Smith on its payroll discontinued payment of his salary as of October 1, 1965. On November 28, 1966, the workmen's compensation claim was heard and an award was made of 14-6/7 weeks compensation for temporary disability at $45 weekly and 178-3/4 weeks compensation for 65% permanent loss of the left leg at $40 weekly. It should be noted that this award was based upon a permanent leg disability and not a total permanent disability, even though the incapacity was such as to disqualify him permanently for work as a fireman.
As noted above, after reversing its earlier decision and granting the permanent disability pension, the Board of Trustees calculated that the date of last payment under the compensation award would be May 1, 1968. That date was fixed by the Board as the inception date of the disability pension benefits. The choice of the May 1, 1968 date created the controversy now before us. Smith's annual retirement pension amounts to $5,077.20 or $97.65 weekly, or $57.65 more weekly than his permanent disability workmen's compensation rate. The effect of the determination was to limit his benefits to the $40 weekly compensation rate until they expired on May 1, 1968, and to deny all recovery against the pension fund until that date. The Board's reason seems to have been that there can be no concurrent payment of both workmen's compensation and pension benefits.
Smith sought a review in the Appellate Division contending that the effective date of his retirement should be December 8, 1964, which marked the end of 14-6/7 weeks of temporary disability, or January 15, 1965, the date requested in his retirement application, or October 1, 1965 when the Town terminated payment of his full salary. The Appellate Division decided that the appropriate beginning date for pension payments was October 1, 1965 because the last date of regular salary payment was September 30, 1965.
In addition to holding that Smith was entitled to receive pension payments retroactively to October 1, 1965, the court ruled that he was entitled also to retain the concurrent workmen's compensation weekly benefits between October 1, 1965 and May 1, 1968. In re Smith, 108 N.J. Super. 315, 321 (App. Div. 1970). This Court granted the Board's petition for certification. 55 N.J. 593 (1970).
On this appeal, the Board cites no statute which in express terms controls the issue presented to us. Basically the argument is that existing related legislative enactments reveal an intention to bar the double recovery of ...