Collester, Lora and Handler.
The appeal in the case bearing docket No. A-297-74 is from a decision of the Board of Trustees of the Police & Firemen's Retirement System denying accidental disability retirement to petitioner. This appeal is consolidated for purposes of disposition with appeal bearing docket No. A-771-73.
Petitioner was injured on May 3, 1971 when he pulled a battery charger from in front of the dual wheels of the hook
and ladder tractor which he then drove to a fire in response to an alarm. He filed an application for accidental disability retirement on November 6, 1972 pursuant to N.J.S.A. 43:16A-7. On December 18, 1972 the board rejected petitioner's application for accidental disability, but granted him an ordinary disability retirement pension.
We are satisfied that the board properly determined on sufficient credible evidence in the whole record that petitioner, notwithstanding the assertion that he was free of any prior infirm condition relating to his back, did not incur his injury and ultimate disability as a result of an undesigned, unexpected or unusual event. Hillman v. Bd. of Trust., Pub. Emp. Ret. Sys., 109 N.J. Super. 449, 460-461 (App. Div. 1970). His disability in the circumstances described -- the employee doing his usual work in the usual way -- is not an accidental disability within the meaning of the pension statute, N.J.S.A. 43:16A-7. Accordingly, the determination of the board is affirmed.
In the second appeal, docket No. A-771-73, petitioner contends as against his employer, the City of East Orange, that he is entitled to the award made by the judge of workmen's compensation for workmen's compensation benefits since his pension was granted for ordinary disability and not for accidental disability, and further, that his disability pension was not granted for the same injury or disability for which the compensation award was made. The City of East Orange asserts that N.J.S.A. 34:15-43 bars the payment of a workmen's compensation award to a former employee for permanent disability where the former employee is receiving an ordinary disability retirement pension for the same injury and disability upon which the workmen's compensation award is based.
N.J.S.A. 34:15-43 provides in part:
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; provided, however, that such
employee, despite retirement, shall, nevertheless, be entitled to the medical, surgical and other treatment and hospital services as set forth in section 34:15-15 of the Revised Statutes.
It has been recognized that N.J.S.A. 34:15-43 bars workmen's compensation payments when the former employee is receiving accident disability pension benefits. In re Application of Smith, 57 N.J. 368, 375 (1971); Swan v. Bd. of Trustees of Teachers' Pension Fund, 85 N.J. Super. 226 (App. Div. 1964); Ziegler v. State, 95 N.J. Super. 273 (App. Div. 1967); Reinhold v. Irvington, 134 N.J.L. 416 (Sup. Ct. 1946); Flynn v. Union City, 30 N.J. Super. 467 (Cty. Ct.), aff'd 32 N.J. Super. 518 (App. Div. 1954), certif. den. 17 N.J. 253 (1955). And, the statute is not a bar when the former employee is receiving pension benefits based on age or service. Pisapia v. Newark, 47 N.J. Super. 353 (Cty. Ct. 1957).
We hold that N.J.S.A. 34:15-43 bars the receipt of workmen's compensation by a retired employee who is receiving ordinary disability pension benefits where the underlying disability is the same for which workmen's compensation is claimed. We also reject the argument that such an employee is entitled to recover workmen's compensation only for purposes of off-setting such compensation against his retirement pension. To this ...