On appeal from the Division of Workers' Compensation.
King, Brody and Thomas. The opinion of the court was delivered by King, P.J.A.D.
This case presents the question of the right of a totally disabled employee of the Port Authority of New York and New Jersey (Port Authority) to recover both his accidental disability pension benefits and his New Jersey workers' compensation weekly benefits in full despite the bar against dual recovery in N.J.S.A. 34:15-43. The Judge of workers' compensation ruled in favor of the disabled employee and awarded a dual recovery. We disagree and reverse. We conclude that N.J.S.A. 34:15-43 precludes the recovery of both a full accidental disability pension and total permanent disability benefits under the New Jersey workers' compensation act.
On October 24, 1984 petitioner Edward Wright filed a claim petition for workers' compensation benefits with the Division of Workers' Compensation. Wright's employer, the Port Authority, admitted that he was an employee on the date of the accident and that the injury arose out of and in the course of his employment.
In July 1986 Wright filed a verified petition for benefits from the Second Injury Fund (Fund), N.J.S.A. 34:15-95. The Fund, through the Attorney General, appeared and moved to dismiss
the claim petition, relying on N.J.S.A. 34:15-29, -43, contending that petitioner Wright was barred from receiving any workers' compensation or Fund benefits because he was already receiving an accidental disability pension for the same injury. On March 12, 1991 the Judge denied the Fund's motion.
A hearing was held on May 16, 1991 where petitioner testified and produced medical reports and other documentation in support of his claim. On June 21, 1991 the Judge entered a final decision ordering the Port Authority and the Fund to pay workers' compensation total permanent disability benefits to petitioner without any credit or offset for his accidental disability pension. The Fund appeals.
Petitioner Wright, born in 1944, was employed from 1971 to 1984 by the Port Authority as a police officer. On April 19, 1984 he responded to a burglar alarm in a warehouse at Port Newark while on duty. During a search of the warehouse he "tripped and fell over wooden pallets," injuring his "neck, back, shoulders, low back and mid back" and was hospitalized twice for his injuries. He described his injuries in his claim petition as: "orthopedic, neurological and neuropsychiatric disability: Injury to entire spine with radiating pains to shoulders and arms and legs; headaches." The parties stipulated that he is now permanently and totally disabled. He has not worked since the accident.
Petitioner had several pre-existing injuries which contributed to his condition of permanent total disability. He had surgery on his right elbow in 1975; surgery on his right knee in 1977 which resulted in a workers' compensation award for 17 1/2% of partial total disability of the right leg; an automobile accident in 1979, and a 1982 automobile accident which resulted in a workers' compensation award for 12 1/2% of partial total disability. These accidents were all work-related.
At the time of his accident in 1984 Wright's salary was $578.98 a week. The Port Authority recognized the compensability of the April 1984 injury, provided medical treatment, and paid full wages from April 1984 to October 1985. After his retirement in October 1985, Wright was paid temporary disability benefits of $255 per week, the maximum rate of compensation allowed by law, until April 24, 1987. Wright also was awarded federal Social Security disability benefits of $739.80 per month for himself and $370 per month for his family, effective October 1984. This resulted in a $258.10 per week total benefit from Social Security.
Wright also applied for and received an initial accidental disability pension under the New York State Police Pension Fund, which funds the Port Authority pension for police officers and is established by employer and employee contributions. This pension was in the amount of $2,123 per month or $490.40 per week. This pension was effective in October 1985. The pension increased to $2,246 per month in January 1990. The parties stipulated that
New York State only takes a reduction in accidental disability pension payments for workers' compensation disability payments made pursuant to the New York State Workers' Compensation Board and does not take credit for disability payments made under the New Jersey Workers' Compensation Law. [ See N.Y. Retire. & Soc. Sec. Law § 364(a)(1) (McKinney 1987).]
The Fund moved to dismiss the workers' compensation claim on the basis of N.J.S.A. 34:15-43, which says in pertinent part:
Every officer, appointed or elected, and every employee of the State, county, municipality or any board or commission, or any other governing body, including boards of education, and governing bodies of service districts, individuals who are under the general supervision of the Palisades Interstate Park Commission and who work in that part of the Palisades Interstate Park which is located in this State, and also each and every member of a volunteer fire company doing public fire duty and also each and every active volunteer, first aid or rescue squad worker, including each and every authorized worker who is not a member of the volunteer fire company within which the first aid or rescue squad may have been created, doing public first aid or rescue duty under the control or supervision of any commission, council, or any other governing body of any municipality, and board of fire commissioners of such municipality or of any fire district within the State, or of the board of managers of any State institution, every county fire marshal and assistant county fire
marshal and every special, reserve or auxiliary policeman doing volunteer public police duty under the control or supervision of any commission, council or any other governing body of any municipality, who may be injured in line of duty shall be compensated under and by virtue of the provisions of this article and article 2 of this chapter (R.S. 35:15-7 et seq.). 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 R.S. 34:15-15. [ N.J.S.A. 34:15-43; emphasis added].
The Judge characterized the issue as whether Wright was precluded from recovering New Jersey Workers' Compensation benefits under N.J.S.A. 34:15-43 because he received pension benefits from the State of New York for the same injury. As noted, the New York state pension law specifically reduces disability pension installments by the amount of any concurrent New York workers' compensation award.*fn1 This reduction, however,
is applied administratively to payments made pursuant to the New York State Workers' Compensation Board only, and is not specifically applied to workers' compensation disability payments made under the laws of New Jersey or any other state. The New York statute simply does not mention or consider awards under the laws of other states. The Judge remarked that "the reason for this strained and costly interpretation of the New York State Police and Fire Pension Act is not readily apparent," however "since we have no expertise in New York law and all the parties concede that this is the way the statute has been administered in New York and will be applied to this case, it must be accepted."
Turning to the facts and the applicability of N.J.S.A. 34:15-43, the Judge concluded that if petitioner has been an employee of the State of New Jersey, a municipality or a board or other political subdivision thereof, including the Palisades Interstate Park Commission, and was receiving a disability pension, he would be precluded from recovering workers' compensation benefits. As emphasized above, N.J.S.A. 34:15-43 contains an explicit reference to the Palisades Interstate Park Commission, a bi-state body as is the Port Authority. There is no specific reference to the Port Authority, or any other bi-state body, in N.J.S.A. 34:15-43. The Judge found this omission conclusive upon his decision to award dual benefits to petitioner, stating that "in the absence of statutory authority, workers' compensation benefits may not be withheld if a petitioner is receiving a disability pension."
A clear reading of Section 43 does not permit the taking of Workers' Compensation rights from the petitioner where he is ...