Before Judges Havey, Wefing and Cuff.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Merit System Board.
This appeal presents the narrow issue of whether a police officer over the age of forty-five but less than fifty-five, retired on disability, may be reinstated to his position upon a finding by the Police and Fire Retirement System (PFRS) that the officer is no longer disabled. We hold that an appointing authority is obliged to reinstate such an officer as soon as a position is available. Accordingly, the final decisions of the Merit System Board (Board) directing the appointing authority to reinstate Robert Terebetski and Wayne Hundemann to the position of police officer for the Borough of Carteret with seniority and benefits are affirmed.
In August 1986, Robert Terebetski, a police officer with the Borough of Carteret (the appointing authority), was declared disabled and received a disability retirement from the PFRS. Terebetski had been injured in the line of duty. On or about September 21, 1998, following a physical examination conducted in accordance with N.J.S.A. 43:16A-8, PFRS determined that Terebetski was no longer suffering from his disability and should be returned to his former employment. Terebetski was forty-nine years of age. When the appointing authority refused to reinstate Terebetski, he filed an appeal with the Department of Personnel requesting that he be reinstated to his former position in accordance with N.J.S.A. 43:16A-8(2) and N.J.A.C. 4A:4-7.12.*fn3 Before the Department, the appointing authority argued that N.J.S.A. 40A:14-127.1 precludes it from reinstating any officer over the age of forty-five. On July 22, 1999, the Board issued its final agency decision and concluded that N.J.S.A. 40A:14-127.1 is not applicable to a disabled officer declared fit for work by the PFRS.*fn4 It is from this decision that the appointing authority appeals.
In October 1987, Wayne Hundemann, a police officer with the Borough of Carteret, was declared disabled and received a disability retirement from the PFRS. On or about April 21, 1998, following a physical examination conducted in accordance with N.J.S.A. 43:16A-8, PFRS determined that Hundemann was no longer suffering from his disability and should be returned to his former employment. By letter dated April 28, 1998, Hundemann requested that the appointing authority return him to his position as a police officer. He was forty-six years old at this time.
The appointing authority's appeal of the PFRS decision was denied. The PFRS held that the appointing authority lacked standing to challenge the determination that Hundemann was fit for duty. When the appointing authority continued its refusal to reinstate him, Hundemann filed an appeal with the Department of Personnel. While the appeal was pending, he too filed an action in the Superior Court, Law Division, on December 16, 1998. This action, like the action filed by Terebetski, was also dismissed.
On July 22, 1999, the Board issued its final agency action. It held that N.J.S.A. 40A:14-127.1 is not applicable to this case. It ordered Hundemann reinstated with seniority and benefits. It is from this decision that the appointing authority appeals.*fn5 We have consolidated these appeals for the purposes of this opinion.
The appointing authority argues that N.J.S.A. 40A:14-127.1 requires that neither Terebetski nor Hundemann may be restored because each officer is over the age of forty-five. Both officers and the Board argue that N.J.S.A. 43:16A-8 governs the unique situation of officers returning from disability retirement. They contend they should not be treated the same as other officers who left active police service for reasons other than a service or non- service connected disability. Further, they construe N.J.S.A. 40A- 14-127.1 as confined solely to the officer who seeks to return to active service following a voluntary separation.
In order to comprehend the Board's conclusion that N.J.S.A. 43:16A-8(2) and N.J.A.C. 4A:4-7.12 are not restricted by the mandatory hiring age restriction contained in N.J.S.A. 40A:14-127.1, a brief review of the statutes and regulation in question is needed.
N.J.S.A. 43:16A-8 provides that:
(2) Any beneficiary under the age of 55 years who has been retired on a disability retirement allowance under this act, on his request shall, or upon the request of the retirement system may, be given a medical examination and he shall submit to any examination by a physician or physicians designated by the medical board once a year for at least a period of 5 years following his retirement in order to determine whether or not the disability which existed at the time he was retired has vanished or has materially diminished. If the report of the medical board shall show that such beneficiary is able to perform either his former duty or any other available duty in the department which his employer is willing to assign to him, the beneficiary shall report for duty; such a beneficiary shall not suffer any loss of benefits while he awaits his restoration to active service. [Emphasis supplied.]
Plainly, the Legislature intended that persons on disability retirement who are no longer disabled, i.e., no longer entitled to disability retirement, and ...