On appeal from Final Decision of the State Board of Education.
Bischoff, Petrella and Brody. The majority opinion of the court was delivered by Petrella, J.A.D. Brody, J.A.D., dissenting.
[192 NJSuper Page 32] The novel issue presented on this appeal involves an interpretation of a provision in N.J.S.A. 18A:30-2.1 authorizing continuation of salary during absence from work for up to one calendar year due to a personal injury caused by an accident arising out of and during the course of employment. An absence under that provision is not charged to annual or accumulated sick leave.
Petitioner Jane M. Williams (Williams) claimed entitlement to her full salary for a recurrent absence from work more than two years after the incident in which she was injured in 1977 while at her "post of duty."*fn1 She asserted that the most recent absence was also due to the 1977 injuries she received during the course of her employment as a special education teacher with the Deptford Township Board of Education (Board). Because her aggregate absences due to her injuries from that incident did not add up to a full year, Williams claimed she should receive her full salary without charging any part of it to her annual or accumulated sick days. She acknowledges, however, an appropriate offset against her salary for temporary disability awards in workers' compensation. The Board denied liability contending that under the statute such a payment was only authorized for up to one calendar year from the date of the accident. On appeal to the Commissioner from the Board's ruling, the matter was heard before an Administrative Law Judge (ALJ) who rendered an initial decision upholding the determination of the Board. The Commissioner of Education adopted the decision of the ALJ. On a further appeal to the State Board of Education, the Commissioner's decision was affirmed.
The facts are not disputed. Williams was employed by the Board since September 1972 as a special education teacher. She sustained injuries on November 11, 1977 during school hours and on school property while attempting to restrain an unruly student. As a result of her injuries she was absent from her employment for one week in December 1977, during which she was paid her full salary without her absence being charged against her annual or accumulated sick leave. In October and November 1979 she was again absent from employment for six weeks. She claimed that the 1977 injuries were the cause of this absence. During that time the Board paid Williams her full
salary without charging the absence to accumulated or annual sick leave.*fn2
On January 12, 1981 Williams was again absent from employment because of the 1977 injuries. Although the Board paid Williams her full salary, this absence was charged against her annual and accumulated sick leave.*fn3 The Board took the position that N.J.S.A. 18A:30-2.1 obligated it to pay, without charging annual and accumulated sick leave, only for those absences from post of duty which occurred within one year from the date of the original 1977 work-related injuries. This determination by the Board precipitated the proceedings that have resulted in this appeal by Williams.
While the matter was pending before the ALJ, Williams amended her petition to allege that the Board waived any right to assert that benefits paid under the statute ceased after November 11, 1978 (one year from the date of the 1977 accident) because it had paid her for her absence in October and November 1979 without charging it against her sick time. She had been paid workers' compensation temporary disability benefits from January 12, 1981 through the end of the 1980-1981 school year and returned to work in the 1981-1982 school year.
On this appeal Williams argues that N.J.S.A. 18A:30-2.1 and N.J.S.A. 34:15-1 et seq. should be construed in pari materia; that the "period of such absence for up to one calendar year" in N.J.S.A. 18A:30-2.1 should be considered to include disjunctive segments of time which may be aggregated, even if involving
dates beyond one calendar year from the date of the accident or injury. Williams also argues that the issue of excess payments should not have been considered by the administrative agency because it had not been properly asserted by the Board and thus had been waived.
We initially address whether the education statutes and the Workers' Compensation Act should be read in pari materia; and then the correct time frame to be used for the period during which payment for absence is to be made under N.J.S.A. 18A:30-2.1.
N.J.S.A. 18A:30-2.1 provides:
Whenever any employee, entitled to sick leave under this chapter, is absent from his post of duty as a result of a personal injury caused by an accident arising out of and in the course of his employment, his employer shall pay to such employee the full salary or wages for the period of such absence for up to one calendar year without having such absence charged to the annual sick leave or the accumulated sick leave provided in sections 18A:30-2 and 18A:30-3. Salary or wage payments provided in this section shall be made for absence during the waiting period and during the period the employee received or was eligible to receive a temporary disability benefit under chapter 15 of Title 34, Labor and Workmen's Compensation, of the Revised Statutes. Any amount of salary or wages paid or payable to the employee pursuant to this section shall be reduced by the amount of any workmen's compensation award made for temporary disability. (Emphasis added).
Williams argues that " N.J.S.A. 18A:30-2.1 must be construed in a manner which is harmonious with the Workers' Compensation Act" and that this court "should look for guidance to prior decisions . . . construing the workers' compensation statutes." She relies on Theodore v. Dover Bd. of Ed., 183 N.J. Super. 407, 415 (App.Div.1982), in which we held that the phrase "accident arising out of and in the course of employment" as used in N.J.S.A. 18A:30-2.1 "was intended to have precisely the same meaning as it does within the context of the Workers' Compensation Act." Support for the conclusion in Theodore was found in the statement accompanying the 1967 amendment of the statute, which said ...