Carton, Crahay and Handler. The opinion of the court was delivered by Crahay, J.A.D.
This appeal is addressed to the propriety of a final action by respondent Board of Trustees (Board) which held that appellant pensioner was not entitled to disability pension benefits in "the years 1967 through March 31, 1973." The Board demanded from the pensioner a return of a "total overpayment" in the amount of $5,302.32 for the involved years.
Our review of the record satisfies us that the challenged action was not warranted and we reverse.
The record is entirely documentary and reflects no meaningful factual dispute. In view of our disposition we deem it appropriate to detail the operative chronology.
In 1950 appellant Indursky was permanently appointed to the position of counsel to the Jersey City Housing Authority (Authority) at an annual salary of $4,000. In
1955 he applied for membership in the Public Employees' Retirement System (PERS) and was accepted in it, purchasing, for $1,217.64, credit back to the commencement date of his employment.
On various dates in November 1964 appellant formally applied to PERS for ordinary disability retirement; certified his final salary at $4,550 a year; stated his disability to be the result of a myocardial infarction, and supplied a report of his personal physician which essentially attested that appellant suffered an acute myocardial infarction in 1954 and that he was permanently disabled and incapacitated from the performance of his duties.
In December 1964 the official physician for PERS reported that appellant was totally and permanently incapacitated as the result of arteriosclerotic heart disease, noting the 1954 infarction. In response to an inquiry by respondent's secretary the medical panel of PERS reported that it "believes that he [appellant] should be considered totally and permanently incapacitated."
In January 1965 respondent wrote appellant, advising that his retirement application was being reviewed and sought additional information, specifically, whether he intended to continue in private law practice and, if so, what would be his estimate of his annual income. Answering, appellant expressed surprise at the inquiry but stated (1) his intention to continue his law practice, although not on a full-time basis and (2) his inability to estimate his income from it.
In February 1965 appellant resigned as counsel for the Authority. He was advised by PERS that his retirement application had been approved. Appellant was informed that the approval would be retroactive to December 1, 1964 and that his maximum monthly benefit would be $95.63, subject to a reduction when he became eligible for Social Security benefits. It was stated that under the provisions of N.J.S.A. 43:15A-44
It should be noted here that in 1965 the relevant portion of the cited statute actually required that
Once each year the board of trustees may * * * require any disability beneficiary who is under the age of 60 years to undergo medical examination by a physician * * * If the physician * * * thereupon report and certify to the board that the disability beneficiary is not totally incapacitated * * * for the performance of duty and that he is engaged in or is able to engage in a gainful occupation, * * * then the amount of his pension shall be reduced to an amount which, when added to the amount then earnable by him, shall not exceed the amount of his final compensation. * * * [ N.J.S.A. 43:15A-44, emphasis supplied]
In April 1965 PERS sent a formal notice of retirement to appellant with a monthly benefit of $95.63. (The form stated that the allowance would be reduced $34.83 a month in 1978 when Indursky ...