SCOTT ROGOW (DECEASED), Pеtitioner-Appellant, v. BOARD OF TRUSTEES, POLICE AND FIREMEN‘S RETIREMENT SYSTEM, Respondent-Respondent.
DOCKET NO. A-1346-17T2
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Argued February 28, 2019 - Decided March 26, 2019
Before Judges Simonelli, Whipple and Firko.
On appeal from the Board of Trustees, Police and Firemen‘s Retirement System, PFRS No. 3-10-42927. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. This opinion shall not “constitute precedent or be binding upon any court.” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Craig S. Gumpel argued the cause for appellant Lynne Rogow.
Amy Chung, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Danielle P. Schimmel, Deputy Attorney General, on the brief).
PER CURIAM
I.
We begin with a review of the pertinent authority. The PFRS Act,
General Provisions
(3) “Member” shall mean any . . . fireman included in the membership of the
retirement system pursuant to this amendatory and supplementary act . . . . . . . .
(7) “Service” shall mean service as a . . . fireman paid for by an employer.
. . . .
(11) “Annuity” shall mean payments for life derived from the aggregate contributions of a member.
(12) “Pension” shall mean payments for life derived from contributions by the employer.
(13) “Retirement allowance” shall mean the pension plus the annuity.
. . . .
(16) “Retirement” shall mean the termination of the member‘s active service with a retirement allowance granted and paid under the provisions of this act.
[(Emphasis added).]
Except as provided by
N.J.A.C. 17:4-6.7 , a member shall have the right to withdraw, cancel or change an application for retirement at any time before the member‘s retirement allowance becomes due and payable by sending a written request signed by the member. Thereafter, the retirement shall stand as approved by the Board.
[(Emphasis added).]
Accidental Disability Retirement Allowance and Survivor Accidental Disability Retirement Death Benefits
Upon retirement for accidental disability, a member shall receive an accidental disability retirement allowance which shall consist of:
(a) An annuity which shall be the actuarial equivalent of his aggregate contributions and
(b) A pension in the amount which, when added to the member‘s annuity, will provide a total retirement allowance of [two-thirds] of the member‘s actual annual compensation for which contributions were being made at the time of the occurrence of the accident or at the time of the member‘s retirement, whichever provides the largest possible benefit to the member.
Upon receipt of proper proofs of the death of a member who has retired on accidental disability retirement allowance, there shall be paid to such member‘s beneficiary, an amount equal to [three and one-half] times the compensation upon which contributions by the member to the annuity savings fund were based in the last year of creditable service; provided, however, that if such death shall occur after the member shall have attained [fifty-five] years of age the amount payable shall equal [one-half] of
such compensation instead of [three and one-half] times such compensation.
[(Emphasis added).]
Survivor Death Benefits
Upon the receipt of proper proof of the death of a member in active service on account of which no accidental death benefit is payable under [
N.J.S.A. 43:16A-10 ] there shall be paid to such member‘s widow or widower a pension of [fifty percent] of final compensation for the use of himself or herself and children of the deceased member, to continue during his or her widowhood; if there is no surviving widow or widower or in the case the widow or widower dies or remarries, [twenty percent] of final compensation will be payable to one surviving child, [thirty-five percent] of final compensation to two surviving children in equal shares and if there be three or more children, [fifty percent] of final compensation will be payable to such children in equal shares.In the event of death occurring in the first year of creditable service, the benefits, payable pursuant to this subsection, shall be computed at the annual rate of compensation.
If there is no widow or widower or child, [twenty-five percent] of final compensation will be payable to one surviving parent or [forty percent] of final compensation will be payable to two surviving parents in equаl shares.
[(Emphasis added).]
For the purposes of this section and [
N.J.S.A. 43:16A-10(5) ], a member of the [PFRS] shall be deemed to be an active member for a period of no more than [ninety-three] days while on official leave of absence without pay when such leave is due to any reason other than illness, and for a period of not more than one year in the event of an official leave (a) due to the member‘s maternity, or (b) to fulfill a residency requirement for an advanced degree, or (c) as a full-time student at an institution of higher education, and (1) while he is disabled due to sickness or injury аrising out of or in the course of his employment as a member to whom this act applies, is not engaged in any gainful occupation, and is receiving or entitled to receive periodic benefits (including any commutation of, or substitute for, such benefits) for loss of time on account of such disability under or by reason of workmen‘s compensation law, occupational disease law or similar legislation and has not retired or terminated his membership; or (2) for a period of no more than two years while on official leave of absence without pay if satisfactory evidence is presented to the retirement system that such leave of absenсe without pay is due to the member‘s personal illness other than an illness to which (1) above applies.
[(Emphasis added).]
If a member dies within [thirty] days after the date of retirement or the date of board approval, whichever is later, a death benefit shall be payable only if he is deemed to be an active member in accordance with this section; provided, however, a member applying for disability benefits shall be deemed an active member if he was covered by the death benefit provisions of the act at the termination of employment, filed the application for disability retirement with the
retirement system within [thirty] dаys following such termination of employment and dies within [thirty] days after the date of retirement or the date of board approval, whichever is later. If a member files an application for disability retirement while in service and otherwise meets the requirements for disability retirement, but dies before the retirement takes effect, the retirement shall be considered effective.
Survivor Accidental Death Benefits
Upon the reсeipt of proper proofs of the death of a member on account of which an accidental death benefit is payable, there shall be paid to his widow or widower a pension of [seventy percent] of the compensation, upon which contributions by the member to the annuity savings fund were based in the last year of creditable service, for the use of herself or himself and the children of the deceased member; if there is no surviving widow or widower or in case the widow or widower dies, [seventy percent] of such compensation will be payable to the member‘s surviving child or surviving children in equal sharеs.
In addition to the foregoing benefits payable under [
N.J.S.A. 43:16A-10(2) ], there shall also be paid in one sum to such beneficiary, if living, as the member shall have nominated by written designation duly executed and filed with the retirement system, otherwise to the executor or administrator of the member‘s estate, an amount equal to [three and one-half] times the compensation upon which contributions by the member to the annuity savings fund were based in the last year of creditable service.
Further,
In addition to the foregoing benefits, the State shall pay to the member‘s employer-sponsored health insurance program all health insurance premiums for the coverage of the member‘s surviving widow or widower and dependent children.
Unlike,
II.
We now turn to the facts of this case. Rogow suffered a work-related injury on July 6, 2009. On October 28, 2010, Rogow submitted an application for an accidental disability retirement allowance. On May 2, 2011, the Board approved Rogow‘s application, effective November 1, 2010. Rogow remained on the City‘s payroll through May 2011. On June 1, 2011, Rogow began receiving an accidental disability retirement allowance of $5,238.88 per month.
Rogow died on August 28, 2012. After receiving notice of Rogow‘s death, on September 20, 2012, the Division of Pensions and Benefits (Division) notified appellant that she would receive a survivor accidental disability retirement benefit of $3,884.06 per month for the rest of her life or until she remarried, plus a group life insurance benefit in the amount of $326,261.64. In addition, Rogow‘s two minor children would each receive $971.02 per month.
In October 2012, appellant and the children began receiving their monthly benefits. Appellant also received the $326,261.64 group life insurance benefit. The children‘s monthly benefits terminated on July 1, 2017. By that time, they had received a total of $114,580.36.
Appellant also filed a claim with the Public Safety Officers’ Benefits (PSOB) Office.1 On September 9, 2016, the PSOB Office found Rogow‘s death was covered under the PSOB Act,
On September 6, 2016, approximately six years after Rogow‘s effective retirement date and approximately four years after his death, appellant filed a request with the Board to amend Rogow‘s “pension status from ‘accident[al] disability’ to ‘line of duty death‘” pursuant to
The request was referred to the Division for administrative review. On January 24, 2017, the Division denied the request administratively. Quoting the language in
Appellant appealed the Division‘s decision. On May 8, 2017, the Board denied the appeal. In a May 12, 2017 written decision, the Board found
he was retired and receiving an accidental disability retirement allowance at the time of his death.
Appellant requested reconsideration of the Boаrd‘s decision. In an October 19, 2017 final agency decision, the Board denied reconsideration, reiterating as follows:
As an active member [] Rogow applied for and was granted an [a]ccidental disability retirement. At that point his status was no longer an active participant, but [] Rogow was a retiree of PFRS. As a matter of law, the Board denied [appellant‘s] request in accordance with [N.J.S.A.] 43:16A-10 which requires that the death of the PFRS member must occur while the member is in active service. Because [] Rogow was retired and receiving [a]ccidental disability benefits he is not eligible for [a]ccidental death benefits.
Thе Board acknowledged that the term “active service” is not specifically defined in
The Board determined that the history of
require that such benefits be awarded only upon the death of a member who was in active service. The Board explained:
A review of the history of [N.J.S.A.] 43:16A-10 indicates that prior to 1967, an [a]ccidental death benefit was awarded “[u]pon the accidental death of a member before retirement.” L. 1964, c. 241, §7 (emphasis added). Thus, a death benefit was payable so long as no retirement application was filed, even if the member had left service and was not contributing to the system. In 1967, the language of [N.J.S.A.] 43:16A-10 was amended to provide the benefit “[u]pon the death of a member in active service.” L. 1967, c. 250 (Chapter 250), § 10 (emphasis added). Chapter 250‘s definition of the term “retirement” further indicates . . . the Legislature‘s intent to narrow the eligibility for an accidental death benefit. It defined “[r]etirement” as “withdrawal from active service with a retirement allowance granted under [the PFRS statutes].”
The Board also determined that “[b]y the plain language of
III.
On appeal, appellant contends the Board‘s decision was arbitrary, capricious and unreasonable because it incorrectly found
Appellant also contends the history of
Our review of the Board‘s decision is limited. Russo v. Bd. of Trs., Police & Firemen‘s Ret. Sys., 206 N.J. 14, 27 (2011). We will not disturb the Board‘s decision absent “a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.” Ibid. (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)). “However, because ‘questions of law are the province of the judicial branch,’ we are ‘in no way bound by [the Board‘s] interpretation of a statute or its determination of a strictly legal issue . . . .‘” Ibid. (citation omitted) (quoting 37 Steven L. Lefelt et al., New Jersey Practice, § 7.19 (2d ed. 2000); Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). We review an issue of statutory interpretation de novo. McGovern v. Rutgers, 211 N.J. 94, 108 (2012). Because this appeal involves the Board‘s interpretation of
“When interpreting a statute, our main objective is to further the Legislature‘s intent.” In re Pontoriero, 439 N.J. Super. 24, 35 (App. Div. 2015) (quoting TAC Assocs. v. N.J. Dep‘t of Envtl. Prot., 202 N.J. 533, 540 (2010)). Toward that end, the plain language of the statute provides the starting point for the analysis. In re Kollman, 210 N.J. 557, 568 (2012). The language of the
statute must be construed in accordance with its ordinary and common sense meaning. State ex rel. K.O., 217 N.J. 83, 91 (2014). “If the language is clear on its face, courts should enforce [the statute] according to its terms.” Bermudez v. Kessler Inst. for Rehab., 439 N.J. Super. 45, 51 (App. Div. 2015) (alteration in original)
The language of
Second, although
fireman paid for by an employer.” At the time of his death, Rogow was not engaged in full-time service as a fireman and was no longer on the City‘s payroll.
Moreover, Rogow‘s active service terminated upon his retirement. See
Accordingly, we conclude that a member who is retired and receiving a retirement allowance from the PFRS at the time of his death is not “a member in active service” and thus is not entitled to accidental death benefits under
Appellant attempts to overcome this conclusion by arguing that if the Legislature intended for
the only relevant issue in determining eligibility for an accidental death benefit is whether the death was the result of the member‘s injury that occurred in the line of duty. We disagree.
“Ordinarily, we are enjoined from presuming that the Legislature intended a result different from the wording of the statute or from adding a qualification that has been omitted from the statute.” DiProspero v. Penn, 183 N.J. 477, 493 (2005). Thus, “[a] court should not ‘resort to extrinsic interpretive aids’ when ‘the statutory language is clear and unambiguous, and susceptible to only one interpretation . . . .‘” Id. at 492 (quoting Lozano v. Frank DeLuca Constr., 178 N.J. 513, 522 (2004)).
“When the plain meaning is unclear or ambiguous, we next consider extrinsic evidence of the Legislature‘s intent, including legislative histоry and statutory context.” Pontoriero, supra, 439 N.J. Super. at 36; see also Bermudez, supra, 439 N.J. Super. at 50. “Likewise, interpretations of the statute and cognate enactments by agencies empowered
323 (2000) (quoting Twp. of Pennsauken v. Schad, 160 N.J. 156, 170 (1999)).
Appellant‘s attempt to infer the legislative intent through her comparison of
Upon the receipt of proper proof of the death of a member in active service оn account of which no accidental death benefit is payable under [
N.J.S.A. 43:16A-10 ] there shall be paid to such member‘s widow or widower a pension of [fifty percent] of final compensation for the use of himself or herself and children of the deceased member . . . .
[(Emphasis added).]
Although appellant is correct that the statute provides death benefits upon the death of a member in active service, that requirement is not dependent on the language in
(1). Cf.
In her analysis of the statutory context, appellant fails to recognize the similar language in
Appellant also argues the Board misapplied the legislative history of
and choosing language which no longer had a temporal limitation. However, the legislative history shows otherwise.
A statute‘s legislative history is often “rich with clues as to the interpretation of statutory language.” TAC Assocs., supra, 202 N.J. at 544. “Furthermore, amendments carry ‘great weight’ in determining the intention of the original statute.” Ibid. (quoting Edwards v. Mayor & Council of Moonachie, 3 N.J. 17, 24-25 (1949)). An examination of the legislative history of
In 1964,
Upon the accidental death of a member before retirement; provided, that evidence shall be submitted to the board of trustees justifying the determination that the natural and proximate cause of such death was an accident met in the actual performance of duty, within [five] years preceding the date of such death, and that such death was not the result of the member‘s willful negligence, an accidental death benefit shall be payable.
[L. 1964, c. 241, § 7 (emphasis added).]
A 1967 amendment provided as follows:
Upon the death of a member in active service as a result of an accident met in the actual performance of duty at some definite time and place, and such death was not the result of the member‘s willful negligence, an accidental death benefit shall be payable . . . .
[L. 1967, c. 250, § 10 (emphasis added).]
Although “amendments carry ‘great weight’ in determining the intention of the original statute[,]” TAC Assocs., supra, 202 N.J. at 542, the Legislature‘s intent is not clear from the 1967 amendment alone. See Klumb, supra, 199 N.J. at 28 (“We are no more enlightened regarding the intent of the Legislature by the language changes in thе statute . . . than by the words of the statute itself.“). Thus, “discerning the meaning of the statute requires further inquiry into other extrinsic evidence.” Ibid.
While the Legislature has not amended the language at issue since 1967, the subsequent legislative history of the statute is instructive in determining the Legislature‘s intent. Notably, the Legislature has often reinforced the requirement that accidental death benefits are payable only when a PFRS member‘s death occurs while in active service.
In 2002, the Legislature amended
Government Committеe noted that prior to the amendment, “the surviving spouse of a member of the [PFRS] . . . who died in active service as a result of accident met in the actual performance of duty lo[st] the accidental death benefit pension if he or she remarrie[d].” S. Comm. Statement to S.B. 1434 (June 6, 2002) (emphasis added). Similarly, in support of a 2008 amendment, which extended accidental death benefits to members of other public retirement systems, the Senate Budget and Appropriations Committee noted:
[a]s amended, the bill provides the same benefits to the survivors of an active member the [PFRS], the State Police Retirement System (SPRS), the Public Employees’ Retirement System (PERS), or the Teachers’ Pension and Annuity Fund (TPAF), who dies as a result of service in either the reserve component of the Armed Forces of the United State or the National Guard while on federal active duty as are currently provided to an active member of the respective retirement system, who dies as a result of an accident sustained in the actual performance of duty.
[Assemb. Comm. Statement to Assemb. B. 770 (Oct. 6, 2008) (emphasis added).]
The Committee Statement further noted that “[c]urrent law provides death benefits and other increased benefits to survivors of PFRS . . . members
In 2016, after Rogow‘s death, the Legislature further amended
In 1967, the Legislature changed the introductory language of
Furthermore, the legislative history contains nothing from which we can conclude that the Legislature sought to permit payment of accidental death benefits to a PFRS member who had retired and was receiving an accidental disability retirement allowance at the time of his death. Had the Legislature intended to do so, it would have omitted the language providing that such benefits be payable “[u]pon the death of a member in active service[.]”
Accordingly, we conclude the Board properly determined that Rogow was ineligible for accidental death benefits because he was not a member in active service at the time of his death, as required by
IV.
Appellant contends the Board‘s decision was arbitrary, capricious and unreasonable because the Board failed to follow its own precedent in Lake v. Police & Firemen‘s Retirement System, 2005 N.J. AGEN LEXIS 961 (Dec. 30, 2005) and Estock v. Board of Trustees, Police & Firemen‘s Retirement System, 2005 N.J. AGEN LEXIS 237 (May 12, 2005), which did not require that the death of a PFRS member occur in active service.4 Appellant misinterprets these cases, and they are not binding on us.
accidental disability to accidental death after the disability determination has been made. The Board‘s final agency decision was not based on appellant‘s failure to show good cause.
Unlike here, in Lake, the Board denied a request to change a police officer‘s retirement application from an ordinary disability retirement allowance to accidental death benefits under
Appellant argues that Lake and Estock support her interpretation of
Appellant‘s argument implies that if the Board does not address every possible ground for denying a request, any grounds for denial that are not addressеd simply do not exist. However, the Board‘s decision not to address
every possible reason for denying a request to change a member‘s retirement application does not imply that additional issues do not exist or that there are no additional grounds on which to deny the request. In fact, in Estock, the Board explicitly noted that it was unnecessary to fully explore or address all of the issues raised in the matter because “a decision on the merits is plain” and it was therefore unnecessary to explore additional grounds for dismissal. Estock, 2005 N.J. AGEN LEXIS 237 at *5. The Board in Estock and Lake therefore did not suggest that accidental death benefits are not dependent оn a member‘s death occurring while in active service. Rather, the Board merely denied the requests on other grounds.
Moreover, despite appellant‘s claim to the contrary, the Board‘s precedent actually supports its interpretation of
contributions owed to his beneficiary record.”5 Although the Board made this determination pursuant to
In Schott v. Board of Trustees, Police & Firemen‘s Retirement System, 94 N.J.A.R.2d (TYP) 227, the Board denied a former police officer‘s application for an ordinary disability retirement allowance, finding he was no longer “in service” when he filed his application, as required by
Although the Board did not make its determination in Schott pursuant to
this matter because it relates to language that is almost identical to the language in
The Board‘s precedent supports its interpretation of
To the extent we have not specifically addressed appellant‘s remaining arguments, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
CLERK OF THE APPELLATE DIVISION