Carton, Crane and Kole. The opinion of the court was delivered by Kole, J.A.D.
Richard Leoni, a police officer in the Township of Hamilton, filed a petition in the Division of Workmen's Compensation pursuant to N.J.S.A. 34:15-7 et seq., for a work-connected disability as a result of injuries sustained on September 20, 1970. The workmen's compensation judge awarded him compensation on March 1, 1974, for permanent disability, with payments to commence from March 3, 1972, the date to which he had been paid sick leave benefits by the employer.
The workmen's compensation carrier of the employer failed to make payments pursuant to the award. Accordingly, Leoni filed a motion on June 7, 1974 to compel payment and to add the carrier as an additional respondent. On July 17, 1974 the employer filed a cross-motion to suspend payments on the ground that petitioner is a "former employee who has been retired on pension by reason of injury or disability", as set forth in N.J.S.A. 34:15-43, a part of the Workmen's Compensation Act. The judge granted petitioner's motion and denied the employer's cross-motion. The employer appeals from the resulting order.
There is no doubt that the injury and disability suffered by petitioner was work-connected. He now appears to be totally blind as a result thereof.
Prior to the initiation of the workmen's compensation petition, Leoni had filed a petition for an accidental disability pension. The pension board involved rejected the claim on the ground that the disability was not a direct result of a traumatic event pursuant to N.J.S.A. 43:16A-7(1). See Shea v. Bd. of Trustees, 116 N.J. Super. 348 (App. Div. 1971); Hillman v. Bd. of Trustees, 109 N.J. Super. 449 (App. Div. 1970); Titman v. Bd. of Trustees, 107 N.J. Super. 244 (App. Div. 1969). An accidental disability pension would constitute 2/3 of his annual $11,246 salary. We have been advised that this determination is presently the subject of an administrative appeal. We, of course, express no views with respect to the merits of the
pension board's conclusion. The board, however, granted petitioner an ordinary disability retirement pension under N.J.S.A. 43:16A-6. He was retired as of March 1, 1972 and receives a disability pension of $4,128.67 a year. He was still receiving it when he filed his workmen's compensation petition. The workmen's compensation award is $4,732 a year, about $600 annually in excess of his ordinary disability pension.
There is no doubt that Leoni may not collect both a workmen's compensation award and a disability pension, whether the latter was the result of an accident or other cause under N.J.S.A. 43:16A-6 or 43:16A-7. The provisions of both the Workmen's Compensation Act, N.J.S.A. 34:15-43, and the Pension Act, N.J.S.A. 43:16A-15.2(b), as amended, make this clear. See In re Application of Smith, 57 N.J. 368 (1971); Russo v. Teachers' Pension & Annuity Fund, 62 N.J. 142 (1973).
The narrow issue thus presented is whether a public employee -- here a policeman -- may choose to pursue and receive an award on a workmen's compensation claim, notwithstanding he is then in receipt of an ordinary disability retirement pension where the latter is work-connected, provided no double recovery of benefits will result.
The problem is one of statutory construction of both N.J.S.A. 34:15-43 and the 1971 amendment to N.J.S.A. 43:16A-15.2(b) -- (L. 1971, c. 175, § 18).
N.J.S.A. 34:15-43, a part of the Workmen's Compensation Act, provides:
No former employee who has been retired on pension by reason of injury or disability shall be entitled under this section to compensation for such injury or disability * * *.
Prior to the 1971 amendment, N.J.S.A. 43:16A-15.2(b), part of the Pension Law, precluded the approval of retirement benefits while a member was in receipt of periodic benefits under the Workmen's Compensation Law. The 1971 ...