Fritz, Seidman and Milmed. The opinion of the court was delivered by Fritz, P.J.A.D.
[142 NJSuper Page 163] The appeals in these consolidated temporary disability cases involve no disputed questions of fact. The legal conundrum presented is simple to state: does N.J.S.A. 43:21-39, in its provision for withheld first "waiting week" benefits until "benefits shall be payable for 3 consecutive weeks," require first-week payment if the disability extends into any day or days of the third consecutive week thereafter? The Board of Review, Division of Employment Security (whose function in these matters we
are told is now in the Division of Unemployment and Temporary Disability Insurance) answered the question in the affirmative. The insurance companies appeal, asserting that the waiting week benefits are not payable until three full consecutive weeks of disability thereafter have come and gone.
While the argument of appellants, premised substantially upon the contention that the words of the statute make the legislative intent apparent, is not without some persuasiveness, we are satisfied that the determinations should be affirmed for reasons which follow.
The statute in question, a section of the Temporary Disability Benefits Law (N.J.S.A. 43:21-25 et seq.), reads in pertinent part as follows:
Notwithstanding any other provision of the Temporary Disability Benefits Law, no benefits shall be payable under the State Plan to any person:
(a) for the first 7 consecutive days of each period of disability, except that if benefits shall be payable for 3 consecutive weeks with respect to any period of disability commencing on or after January 1, 1968, then benefits shall also be payable with respect to the first 7 days thereof;
Uncontroverted testimony in the Knuckles hearing demonstrated that the "practice of the disability insurance service of the State of New Jersey" has been for "the State plan [to] pay the waiting period, if otherwise payable, if the period of disability extends for 22 or more days." In other words, the word "week" in the statute is construed by the administrative agency responsible to mean "any portion of a week." Additionally, "[a]ll private plans, both insured and self-insured, union funds and self-administered have been directed to do likewise," athough "[s]ome have done so and some have refused." This administrative position has prevailed apparently since the effective date of the amendment providing for the waiting period, January 1, 1968.
It cannot be said that appellants' argument rationalizing the case for reversal from the meaning of the words used in the statute and the distinction between those words and language employed in N.J.S.A. 43:21-4(d), a section of the Unemployment Compensation Law, is frivolous. Justice Hall long ago referred to the "somewhat bewildering and unrewarding provisions" of the Temporary Disability Benefits Law. Butler v. Bakelite Co. , 32 N.J. 154, 162 (1960). But we are impelled to a contrary conclusion by other considerations.
In the first place, we are confident that the Legislature is well aware of the long-standing administrative interpretation accorded the statute: it was expressly advised of this in public legislative hearings on the unemployment compensation laws in February 1968, not two months after the enactment of the amendment in question. At that time counsel for the Health Insurance Association of America appeared and reported:
The division of Employment Security has interpreted these sections to require that the retroactive benefits covering the first week of disability must be paid if the claimant is eligible for benefits for at least one day in each of three consecutive weeks. We do not believe that this interpretation represents the intent of the legislature. To clarify this, we think that the law could be amended to state specifically that the retroactive benefit covering the first week of disability is payable after the disabled employee has completed four consecutive weeks of disability; that is, after three full weeks of ...