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Russo v. Teachers'' Pension and Annuity Fund

Decided: January 22, 1973.

MARIE RUSSO, WIDOW OF PATSY RUSSO, DECEASED, PETITIONER-APPELLANT,
v.
TEACHERS' PENSION AND ANNUITY FUND, RESPONDENT-APPELLEE



For affirmance -- Chief Justice Weintraub, Justices Jacobs, Hall and Mountain, and Judge Sullivan. For reversal -- None. The opinion of the Court was delivered by Weintraub, C.J.

Weintraub

This case involves a claim against the Teachers' Pension and Annuity Fund (herein Fund) for accidental death benefits. The widow of the employee received the benefits payable for a nonaccidental death, consisting of the return of the employee's contribution with interest thereon and a sum equal to 1-1/2 times his last year's salary. N.J.S.A. 18A:66-38(a) and (b). Upon the premise that death was accidental, the widow sought further benefits consisting of a yearly pension of one-half of the employee's last year's salary payable to her for life. N.J.S.A. 18A:66-46. The Board of Trustees of the Fund found the death was not accidental within the meaning of the statute and therefore denied the claim for the pension. The Appellate Division affirmed in an unreported opinion and we granted the claimant's petition for certification. 60 N.J. 140 (1972).

The deceased was employed as a custodian for the Newark Board of Education. He died at work of a heart attack. His widow obtained workmen's compensation benefits upon the thesis that death was "by accident" within the meaning of the workmen's compensation statute. In the present proceedings against the pension Fund, the hearing officer, applying the standard controlling under the workmen's compensation statute, found for the claimant, but the Board of Trustees, although accepting that test, held "the decedent did not experience an accident while performing his duties as a custodian, rather his death just happened to occur at his place of employment."

The Appellate Division affirmed. The Appellate Division also said "that entitlement of benefits under the instant statute for a death from heart attack assertedly contributed to or caused by the decedent's work effort is to be

determined by the principles enunciated in workmen's compensation cases by such decisions as Dwyer v. Ford Motor Co., 36 N.J. 487 (1962)," but the Appellate Division would not disturb the finding of fact of the Board of Trustees that the work effort was not causally connected with the death.

We, too, will not disturb that fact finding. The case is thin. The deceased had suffered two serious heart attacks, one in 1954 and the other in 1964, with substantial permanent disability. The medical theme in support of the claim was that the underlying disease of the heart was so far advanced that the deceased was capable of sedentary work only, and that even mild exertion could induce sudden death. On the day he died, decedent reported to work at 7:00 a.m. He was found about 40 minutes later, apparently dead. His work effort that morning was very light. Indeed his assigned duties had been moderated long before that day because of his infirmity. The claimant's expert nonetheless thought the work effort resulted in an acute coronary insufficiency (deprivation of blood and oxygen to the heart) and fibrillation (abnormal heart rhythm) leading to death in a matter of minutes. We, of course, are not sitting in review of the finding of accidental death in the workmen's compensation proceeding and do not intend what we say to reflect upon the award there made, but we agree that the finding in the present matter, that the work did not contribute in a material degree to the death, should not be disturbed by a reviewing court.

We granted certification in this case primarily to deal with the question whether the workmen's compensation test of compensability is applicable to a claim of accidental death under this pension and annuity statute. Several decisions of the Appellate Division, to which we will later refer, applied workmen's compensation concepts in pension cases. In Wagner v. Board of Trustees of Public Employees' Retirement System, 87 N.J. Super. 498 (App. Div. 1965), certif. denied, 45 N.J. 300 (1965), the Appellate Division disagreed with that view and we expressly reserved the question in McGee

v. Board of Trustees of Public Employees' Retirement System, 45 N.J. 576, 579 (1965).

We think the controlling standard under the pension statute here involved is different from the standard of the workmen's compensation statute, and this because of differences in the intended roles of the statutes and in the language employed.

Article 2 of the Workmen's Compensation Act provides a program of scheduled benefits accepted by employer and employee in lieu of a common law claim based on the employer's fault. N.J.S.A. 34:15-7 provides that

"* * * compensation for personal injuries to, or for the death of, such employee by accident arising out of and in the course of his employment"

shall be made in accordance with the schedule in N.J.S.A. 34:15-12 and 13.

In Ciuba v. Irvington Varnish & Insulator Co., 27 N.J. 127 (1958), which involved a claim for death benefits on the basis of a heart attack, we held the unexpected injury was an "accident" within the meaning of the workmen's compensation statute and hence there need not also be some unexpected external event. Accordingly compensation must be awarded if the work in fact caused or aggravated the disability or accelerated the death, whether the work effort was ordinary or extraordinary, usual or unusual. We thus applied to a heart case the same concept of accidental injury which had become routinely accepted in compensation matters with respect to other unexpected injuries, see Neylon v. Ford Motor Co., 10 N.J. 325 (1952), as for example when an employee experienced a muscular strain in performing his regular duties in apparently his regular way.

We do not doubt the abstract correctness of applying the stated principle in heart cases in workmen's compensation. The difficulty resides not in the concept but in the evident ...


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