On appeal from Consolidated Police and Firemen's Pension Fund Commission.
Halpern, Larner and King. The opinion of the court was delivered by Larner, J.A.D.
[160 NJSuper Page 383] Petitioner appeals from the denial by the Consolidated Police and Firemen's Pension Fund Commission (Commission) of death benefits claimed to be due under the provisions of N.J.S.A. 43:16-4(a) by virtue of the death of her husband while employed as a captain in the Police Department of the City of Linden. The pivotal issue is whether the widow of the deceased police captain is entitled to receive a pension of 50% of his average salary pursuant to N.J.S.A. 43:16-4(a) rather than a normal death pension of 25% pursuant to N.J.S.A. 43:16-3(a).
After a plenary hearing the hearing officer of the Division of Pensions recommended a denial of the increased pension on a finding that the death "was not the direct result of the work effort" so as to constitute an "on duty" death under the applicable statute which provides for the increased pension when the member has "lost his life while on duty." The Commission adopted his findings and recommendation and denied the pension. Petitioner appeals from that determination.
A recitation of the facts relating to the medical condition of decedent and leading to his ultimate death are essential for the resolution of the legal question on appeal.
Hill, a member in good standing in the pension system, had been employed by the Police Department of the City of Linden since 1937 and at the time of the operative events was 60 years of age and had become a captain in that department. Prior to January 6, 1975 he was in good health and had no complaints referable to his chest or heart. On January 6, 1975 he was in charge of the department for the day shift. The evidence establishes, and the hearing officer found, that on that date decedent, in performance of his duties and in response to a call by a sergeant, went to the scene of a disturbance in order to supervise the dispersal of an unruly and disorderly crowd of approximately 500 persons who were attempting to force their way into the office of a ticket agency to obtain tickets for a rock concert.
While on the scene, Captain Hill collapsed as a result of a heart attack and was taken by ambulance to Rahway Hospital. Upon arrival he was in ventricular fibrillation, with his skin mottled and without measurable blood pressure. Dr. Melvin W. Lipowitz, a qualified internist, examined him and concluded that "the heart, for all intents and purposes, has stopped beating effectively," causing the cessation of a blood flow to the vital organs.
Emergency measures were taken including intracardiac administration of adrenaline external cardiac massage and
electric shock therapy. The patient's heart rhythm was restored and his vital signs stabilized. His condition was diagnosed as an acute massive anterior wall infarction. After further treatment and examinations, and other episodes of disturbance of the heart rhythm, he was discharged on February 4, 1975 with a guarded prognosis. On the advice of Dr. Lipowitz he did not return to work.
After this hospitalization he engaged in none of his former activities in various sports, was severely depressed, "sick" and "ailing," refused to see people, and limited himself to short walks. On April 2, 1975, after sitting around all day he suffered a blackout while at dinner, accompanied by a rapid heart beat, which was followed by another hospitalization for a period of eight days. After conservative treatment and supervision he was discharged as improved.
Decedent continued to remain under his doctor's care thereafter, led a sedentary existence and did not return to work. Commencing in June or July 1975, however, he did venture forth on the family boat with the approval of his physician, without engaging in any activity pertaining to operation of the boat or fishing therefrom. On September 7, 1975 while sitting in a chair on the boat he collapsed and died. The death certificate designated the immediate cause of death as a sudden myocardial infarction due to arteriosclerotic heart disease for a period of nine months.
Dr. Lipowitz testified that the death-dealing attack of September 7 was related to the myocardial infarction of January 6, 1975. It was his opinion that decedent, who suffered an acute myocardial infarction together with ventricular fibrillation and heart failure, was thereby subject to a "greater risk of death in the near term after successful resuscitation from same," and that as a ...