Fritz, Seidman and Milmed.
Appellants, each of whom alleged physical inability to continue in his employment because of heroin addiction, applied for State Plan benefits under the Temporary Disability Benefits Law, N.J.S.A. 43:21-25 et seq. The Disability Insurance Service of the Division of Unemployment and Disability Insurance determined that both were ineligible to receive benefits on the ground that the disability resulted from a willfully self-inflicted injury. The Appeal Tribunal reached a like result, but held, additionally, that claimants' addiction resulted from an illegal course of conduct. The Board of Review affirmed, and both claimants appeal.
N.J.S.A. 43:21-39(f) provides that no benefits shall be payable to any person:
Claimants contend that they do not come within the latter portion of the statute because chronic heroin addiction is an injury which results from the use of a controlled dangerous
substance, a disorderly person offense, N.J.S.A. 24:21-20(b), and not from the mere possession of the drug. This argument is without merit.
Under N.J.S.A. 24:21-20(a)(1), the unlawful possession of heroin is a high misdemeanor. This includes possession of heroin intended for the possessor's own use. State v. Gibson , 126 N.J. Super. 25, 26-27 (App. Div. (1973). See also, State v. Reed , 34 N.J. 554, 564 (1961). Since "[u]se is ordinarily preceded by the user's possession of the drug," 34 N.J. at 557, there can be no doubt that the injury here, namely, the drug-induced disability, was sustained "in the perpetration by the claimant of a high misdemeanor." Thus, it is clear that both claimants were ineligible for temporary disability benefits under N.J.S.A. 43:21-39(f). Such result is in accord not only with the intendment of the act, but also with the public policy that one should not be allowed to profit by his own wrong. Cf. Potts v. Barrett Division, etc. , 48 N.J. Super. 554, 560-562 (App. Div. 1958).
Since the determination below was correct for the reasons set forth above, there is no need for us to consider the additional point raised by appellants that inasmuch as chronic alcoholics are not barred from recovering disability benefits on the ground of self-inflicted injury, "little medical or psychological differentiation can be made in terms of self-inflicted injury between the dysfunctional opiate addict and dysfunctional alcoholic," and, therefore, the alternate statutory basis for disqualification on the ground of self-inflicted injury should not apply.
The decisions of the Board of Review ...