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Conklin v. City of East Orange

Decided: May 13, 1977.

WILLIAM W. CONKLIN, PETITIONER-APPELLANT,
v.
CITY OF EAST ORANGE, RESPONDENT-RESPONDENT



For reversal and remandment -- Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Sullivan, J.

Sullivan

This appeal involves the interplay between two statutes. The first is N.J.S.A. 34:15-43, a section of the Workmen's Compensation Act, which makes the Act applicable to public employees but contains the following limitation:

"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."

The other statute is a 1971 amendment to N.J.S.A. 43:16A-15.2, part of the Act establishing the Police and Firemen's Retirement System. Paragraph b of this section had originally provided that:

"b. No application for retirement benefits may be approved by the board of trustees while the member, applying for such benefits, is in receipt of periodic benefits under the Workmen's Compensation Law."

The section as amended in 1971 (L. 1971, c. 175) now provides:

"b. An application for retirement benefits may be approved by the board of trustees while the member, applying for such benefits, is in receipt of periodic benefits under the Workmen's Compensation Law. In this event the actuarial equivalent of such periodic benefits remaining to be paid shall be computed and will serve to reduce the pension portion of the retirement allowance payable to the retirant, subject to the provisions of section 19 of this amendatory and supplementary act."

In particular, the question posed is whether a City of East Orange fireman injured in the line of duty for which he was awarded ordinary disability retirement by the Board of Trustees of the Police and Firemen's Retirement System may thereafter be awarded benefits for the same injury under the Workmen's Compensation Act. The Division Judge ruled that the fireman was entitled to such benefits. The Appellate Division held that under the above-quoted language of N.J.S.A. 34:15-43, retirement on an ordinary disability pension acted as a bar to a subsequent award of workmen's compensation for the same injury. Our determination is that the fireman is entitled to compensation but that the actuarial equivalent of the benefits to be paid thereunder will serve to reduce the pension portion of his retirement allowance.

Petitioner was a fireman employed by the City of East Orange as a driver of a hook and ladder truck. On May 3, 1971, while attempting to move a battery charger which was attached to the fire truck, petitioner suffered a low back injury which incapacitated him for some three weeks. He worked intermittently thereafter until October 16, 1971, the last day of his working employment.

On October 12, 1971 he filed a claim petition for workmen's compensation. While this claim was pending, petitioner, on November 6, 1972, filed an application for accidental disability retirement under the Police and Firemen's Retirement System Act. The application was denied by the Board of Trustees of the Retirement System on December 18, 1972 on the ground that petitioner's disability was not the "direct result of a traumatic event" within the meaning

of the Retirement Act, N.J.S.A. 43:16A-7. However, petitioner was granted ordinary disability retirement, effective November 1, ...


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