Flynn v. Union CityFlynn v. Union City
On April 4, 1952, while a member of the Union City Fire Department, petitioner sustained accidental injuries. The attendant facts and circumstances, it is conceded, bring the happening within the terms of the Compensation Act. Petitioner returned to duty on September 6, 1952. His claim petition was filed in December, 1952.
On August 21, 1953, during the pendency of the claim and рrior to its hearing, the city made application for the retirement and pensioning of petitioner, on the grоund of disability. Such proceedings, including medical examinations, were had pursuant thereto that by action of the Cоnsolidated Police and Firemen‘s Pension Fund Commission of the State of New Jersey the pension retirement applied for was ordered, effective October 1, 1953. Throughout the interval between
The claim petition came on for hearing October 26, 1953. Upon the facts above set forth and the provisions of R.S. 34:15-43, respondent moved at the hearing for the dismissal of thе petition, and the motion was granted. The pertinent provision of the statute is:
“* * * No former employee who has been retired on pension by reason of injury or disability shall be entitled under this section to compensation for suсh injury or disability * * *.”
In a virtually identical situation the court, in Reinhold v. Town of Irvington, 134 N.J.L. 416 (Sup. Ct. 1946), held that the fireman‘s compensation claim was barred by the statute cited. Effort is made to distinguish the Reinhold case on the grounds (a) that there, following the accident, the fireman did not return to duty; and (b) there the fireman himself appliеd for the pension, and having done so with knowledge of the statute, supra, must be held to have made his election. It is argued thаt the pension in the present instance was “involuntary,” and the case of Campbell Soup Co. v. Board of Reviеw, Division of Employment Security, 13 N.J. 431, 435 (1953), is cited as authority. The argument ignores the basic parallel that the two situations present. The petitioner in each of them had, at the time of the compensation hearing, been already retired on pension and was therefore absolutely within the class of “former employees” designated by the statute. Reinhold v. Town of Irvington, supra, determines simply and without qualification that “The status of the prosecutor at the time his claim for compensation was dealt with by the Bureau places him squarely within the provisions of R.S. 34:15-43.” Also be it noted, in neither situation could petitioner be considered as having the status of a former employee prior to his pension retirement, he having been continuously on full salary until the effective date of the retirement. Campbell Soup Co. v. Board of Review, Division of Unemployment Security, supra, is not at all in point. In that case the court deals
Petitioner seeks to show invalidating bad faith and design on the city‘s part in the timing, as petitioner alleges, of its application for the pension retirement in relation to a contrived and ulterior delaying by it of the compensation hearing. This argument is made as if matter of the kind could be regarded as at all competent to defeat the city‘s right to avail itself of the statutory provision; but I can see no merit whatever in the contention, factually or legally. The right of the city to apply for petitioner‘s retirement is not questioned. Prior to the application it had ascertained by departmental examination that petitioner was in such state of disability as to rendеr him a proper subject for retirement on pension, all of which was confirmed in the subsequent procedure оf the Pension Fund Commission. None of this is questioned either. What was the city required to do in the circumstances? The point аppears to be that petitioner was entitled to have the city postpone its rightful course in the matter of pension application, to the making of the compensation award, and thus to forego what the statute prescribed for the city‘s benefit in the situation then existing. Again, be it remembered, petitioner had been on full pay frоm the time of his injury until the effective date of his pension. In the circumstances presented the city‘s motive as employer cannot possibly be or become a legal factor in the problem.
The appeal alsо poses what is intended to be a constitutional question. It is urged that on the official pension date (October 1, 1953) petitioner‘s right to workmen‘s compensation had become a vested right, and that the statute,
The petition is dismissed.