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Smith v. Consolidated Police & Firemen''s Pension Fund Commission

Decided: March 16, 1977.

WALTER H. SMITH, APPELLANT,
v.
CONSOLIDATED POLICE & FIREMEN'S PENSION FUND COMMISSION (DEPARTMENT OF THE TREASURY, DIVISION OF PENSIONS), RESPONDENT



Fritz, Ard and Pressler.

Per Curiam

This is an appeal from a final decision of the Board of Trustees of the Consolidated Police and Firemen's Pension Fund Commission (Board) refusing to reclassify petitioner's service retirement pension as an accidental disability pension. The Board rejected the request as a matter of law without review by way of administrative hearing.

The primary issue in this appeal is whether the Board erred in failing to grant appellant's request for a hearing to determine his eligibility to change from age and service retirement to accidental disability retirement. In rejecting the appellant's request for reclassification of his pension respondent took the position "that there was no provision for reclassification of a pension after the retirement has been effected."

There was no hearing and the factual contentions of the appellant, other than the nature and extent of his disability claim, are not in dispute. Appellant was a fire chief employed by the Town of West Orange. He had been appointed a fireman on January 1, 1942, and his service was uninterrupted until his application for age and service retirement, which was dated January 2, 1974, to become effective February 1, 1974. The application was accepted and appellant was retired on the aforesaid date. In accordance with his age and the terms of the age and service retirement law he received 62 1/2% of his determinative salary.

On July 29, 1975 appellant filed an application for disability retirement. The application alleged that "I am permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of my regular or assigned duties at 9:05 A.M. on July 11, 1973 at Erie Headquarters, Valley Road, West Orange, N.J." In answering a request to describe the traumatic event in detail he stated: "Fell over backwards when going to sit down on swivel chair and landed on lower back." The incident alleged in the application was consistent with an accident report filed on July 12, 1973,

the day after the accident. The supplementary medical data which accompanied the application indicated that appellant was initially seen by a doctor on July 12, 1973 and his condition diagnosed as guarded. Thereafter he visited a physician on January 27, 1974. On this latter visit the physician diagnosed petitioner's back problems but expressed no opinion as to causal relationship between the traumatic event and the disease. All other medical reports indicated examination and treatment subsequent to petitioner's retirement.

The Board's position is jurisdictional in nature. The initial request by appellant to reclassify his retirement to accidental disability was met with the naked assertion by the Board that there was no legal provision for reclassification of a pension after the retirement. Thereafter appellant received the same response after requesting his case be reopened for reconsideration. After appealing the decision of the Consolidated Police and Firemen's Pension Fund Commission appellant was advised as follows:

This will affirm the final administrative determination in this matter, rejecting your request that the Consolidated Police and Firemen's Pension Fund Commission reclassify your voluntary service retirement to one of accidental disability.

Appellant then brought this appeal.

The Board argues that its rejection of appellant's request as a matter of law without an administrative hearing was appropriate since the statutes do not authorize such a reclassification once a member has retired. We disagree.

It is axiomatic in dealing with pension legislation that being remedial in nature, it be liberally construed. In re Vaccaro , 131 N.J. Super. 264, 268 (App. Div. 1974), aff'd 66 N.J. 151 (1974); Kochen v. Consolidated Police, etc., ...


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