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Higdon v. Boning

Decided: November 6, 1972.

HELEN HIGDON AND ROBERT HIGDON JOINTLY, AND ROBERT HIGDON, INDIVIDUALLY, PLAINTIFFS,
v.
ISABELLE BONING, DIRECTOR OF WELFARE, FRANKFORD TOWNSHIP, DEFENDANT



Barry, J.c.c.

Barry

Plaintiff Robert Higdon, 42 years of age, is suffering from cerebral palsy. He has so suffered during his entire life. He is permanently disabled from the effects of this disease. He resides at home with his mother, Helen Higdon, 74 years of age, in Frankford Township and has so resided for the past 11 years.

On December 1, 1971 plaintiffs applied to the Sussex County Welfare Board for assistance for Robert. The results of this application, the hearing on the appeal from that determination and the subsequent reapplication of September 8, 1972 were all in the negative. The reason for the denials was that Robert's income, derived from two sources, exceeded the standards set by the State of New Jersey Public Assistance System, which establishes guidelines for welfare boards. Subsequent to these denials plaintiffs applied to Isabelle M. Boning, Director of Welfare of Frankford Township, for assistance

as needy persons under N.J.S.A. 44:8-107 to 145. This application was denied on the grounds that plaintiff Robert Higdon did not qualify under section 122 of the law (N.J.S.A. 44:8-122) and that he was entitled to the benefits sought from the Sussex County Welfare Board. Therefore, defendant was under no obligation to render any assistance to plaintiffs. The sole issues before this court are: (1) whether Robert Higdon qualifies under section 122 of the General Public Assistance Law, N.J.S.A. 44:8-107 to 145, and (2) whether Frankford Township is obligated to render assistance under this law.

In order to make a determination as to whether plaintiff Robert Higdon is needy under this act, inquiry must be made as to his income and expenses, and as to the cost of the treatment necessary to make him a functional asset to society. Robert Higdon receives $169.70 a month as Social Security benefits and $30 per month from the Veterans Administration. This latter sum represents a portion of a total payment of $98.06 paid directly to Helen Higdon by the Veterans Administration, but according to the latter, allocated for plaintiff Robert's needs. Robert's living expenses for medication, food, milk, clothing and miscellaneous total $130, leaving a weekly surplus of $16.20.

Uncontroverted testimony shows that Robert is in need of physical therapy. A denial of this therapy would result in both emotional and physical suffering, and such denial would destroy him physically and mentally. Both Dr. Varroney and Dr. Spears stipulated the need for an audiological examination of Robert. Dr. Spears further testified that Robert needs neurological reevaluation as to adjustment of his anti-convulsant medication on a monthly basis at a hospital or by an area physican. The total cost of the proposed treatments is $70 a week. Applying Robert's weekly income-expenses surplus of $16.20 to this figure reduces the necessary sum to $54.80 a week. Plaintiff contends that in order to alleviate his immediate suffering these treatments must be made available.

N.J.S.A. 44:8-122 provides that a director of welfare

During the trial, defendant did not rebut plaintiffs' proofs as to Robert's being needy and in need of immediate assistance. Defendant in her post-trial brief feels that this assistance, "which is in the nature of sophisticated treatment, violates the tenor and intendment of the act we have been discussing." This court does not agree. The statute states specifically in section 122 (N.J.S.A. 44:8-122) that such needy person may not suffer unnecessarily from sickness. Section 124 (N.J.S.A. 44:8-124) would allow assistance in the form of medical care. Certainly defendant cannot expect the statute to list every sickness or disease for which the statute was intended to provide relief. This is not the case of a person needing a heart transplant or the use of an expensive kidney machine, either of which might be "sophisticated treatment," as defendant suggests. (But the statute neither expressly nor impliedly excludes any sickness or disease for which a needy person might receive assistance.) Plaintiff seeks physical therapy which comprises almost half of the estimated $70 he asserts will relieve his suffering. The term "physical therapy," as defined in Loman's Lawyers' Medical Cyclopedia , is used to indicate the use of a variety of physical means in treatment. These include water, light, heat, electricity, remedial exercises and manual applications such as massage. In light of the testimony elicited at trial this court is not inclined to accept defendant's position that the physical therapy sought by plaintiff is not within the purview of the General Public Assistance Law, N.J.S.A. 44:8-107 to 145.

Furthermore, defendant in her brief admits that assistance should be rendered by municipalities in certain circumstances, but that such assistance must be of a nature

designed only to preserve life and limb until other arrangements can be made. This reasoning, however, does not meet the standards of concern for which the Legislature enacted this law. Notwithstanding, uncontradicted testimony by Dr. Varroney at the trial of this matter was that a denial of the needed therapy would result in both emotional and physical suffering for Robert and would destroy him physically and mentally. For this court to rule that Robert did not qualify ...


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