Russo v. Teachers' Pension and Annuity Fund

• Decision Date: 22 January 1973
• Citation: 299 A.2d 697,62 N.J. 142
• Parties: Marie RUSSO, widow of Patsy Russo, deceased, Petitioner-Appellant, v. TEACHERS' PENSION AND ANNUITY FUND, Respondent-Appellee.
• Court: New Jersey Supreme Court

Page 142

62 N.J. 142

299 A.2d 697

Marie RUSSO, widow of Patsy Russo, deceased, Petitioner-Appellant, v. TEACHERS' PENSION AND ANNUITY FUND, Respondent-Appellee.

Supreme Court of New Jersey.

Argued Oct. 25, 1972.

Decided Jan. 22, 1973.

Jack Mandell, Newark, for petitioner-appellant (Balk, Jacobs, Goldberger & Mandell, Newark, attorneys).

Prudence H. Bisbee, Deputy Atty. Gen., for respondent-appellee (George F. Kugler, Jr., Atty. Gen., attorney).

The opinion of the Court was delivered by

WEINTRAUB, C.J.

This case involves a claim against the Teachers' Pension and Annuity Fund (herein Fund) for accidental death benefits. The widow of the employee received the benefits payable for a nonaccidental death, consisting of the return of the employee's contribution with interest thereon and a sum equal to 1 1/2 times his last year's salary. N.J.S.A. 18A:66--38(a) and (b). Upon the premise that death was accidental, the widow sought further benefits consisting of a yearly pension of one-half of the employee's last year's salary payable to her for life. N.J.S.A. 18A:66--46. The Board of Trustees of the Fund found the death was not accidental within the meaning of the statute and therefore denied the claim for the pension. The Appellate Division affirmed in an unreported opinion and we granted the claimant's petition for certification. 60 N.J. 140, 286 A.2d 513 (1972).

The deceased was employed as a custodian for the Newark Board of Education. He died at work of a heart attack. His widow obtained workmen's compensation benefits upon the thesis that death was 'by accident' within the meaning of the workmen's compensation statute. In the present proceedings against the pension Fund, the hearing officer, applying the standard controlling under the workmen's compensation statute, found for the claimant, but the Board of Trustees, although accepting that test, held 'the decedent did not experience an accident while performing his duties as a custodian, rather his death just happened to occur at his place of employment.'

The Appellate Division affirmed. The Appellate Division also said 'that entitlement of benefits under the instant statute for a death from heart attack assertedly contributed to or caused by the decedent's work effort is to be determined by the principles enunciated in workmen's compensation cases by such decisions as Dwyer v. Ford Motor Co., 36 N.J. 487 (178 A.2d 161) (1962),' but the Appellate Division would not disturb the finding of fact of the Board of Trustees that the work effort was not causally connected with the death.

We, too, will not disturb that fact finding. The case is thin. The deceased had suffered two serious heart attacks, one in 1954 and the other in 1964, with substantial permanent disability. The medical theme in support of the claim was that the underlying disease of the heart was so far advanced that the deceased was capable of sedentary work only, and that even mild exertion could induce sudden death. On the day he died, decedent reported to work at 7:00 a.m. He was found about 40 minutes later, apparently dead. His work effort that morning was very light. Indeed his assigned duties had been moderated long before that day because of his infirmity. The claimant's expert nonetheless thought the work effort resulted in an acute coronary insufficiency (deprivation of blood and oxygen to the heart) and fibrillation (abnormal heart rhythm) leading to death in a matter of minutes. We, of course, are not sitting in review of the finding of accidental death in the workmen's compensation proceeding and do not intend what we say to reflect upon the award there made, but we agree that the finding in the present matter, that the work did not contribute in a material degree to the death, should not be disturbed by a reviewing court.

We granted certification in this case primarily to deal with the question whether the workmen's compensation test of compensability is applicable to a claim of accidental death under this pension and annuity statute. Several decisions of the Appellate Division, to which we will later refer, applied workmen's compensation concepts in pension cases. In Wagner v. Board of Trustees of Public Employees' Retirement System, 87 N.J.Super. 498, 210 A.2d 84 (App.Div.1965), certif. denied, 45 N.J. 300, 212 A.2d 170 (1965), the Appellate Division disagreed with that view and we expressly reserved the question in McGee v. Board of Trustees of Public Employees' Retirement System, 45 N.J. 576, 579, 214 A.2d 21 (1965).

We think the controlling standard under the pension statute here involved is different from the standard of the workmen's compensation statute, and this because of differences in the intended roles of the statutes and in the language employed.

Article 2 of the Workmen's Compensation Act provides a program of scheduled benefits accepted by employer and employee in lieu of a common law claim based on the employer's fault. N.J.S.A. 34:15--7 provides that

'* * * compensation for personal injuries to, or for the death of, such employee by accident arising out of and in the course of his employment'

shall be made in accordance with the schedule in N.J.S.A. 34:15--12 and 13.

In Ciuba v. Irvington Varnish & Insulator Co., 27 N.J. 127, 141 A.2d 761 (1958), which involved a claim for death benefits on the basis of a heart attack, we held the unexpected injury was an 'accident' within the meaning of the workmen's compensation statute and hence there need not also be some unexpected external event. Accordingly compensation must be awarded if the work in fact caused or aggravated the disability or accelerated the death, whether the work effort was ordinary or extraordinary, usual or unusual. We thus applied to a heart case the same concept of accidental injury which had become routinely accepted in compensation matters with respect to other unexpected injuries, see Neylon v. Ford Motor Co., 10 N.J. 325, 91 A.2d 569 (1952), as for example when an employee experienced a muscular strain in performing his regular duties in apparently his regular way.

We do not doubt the abstract correctness of applying the stated principle in heart cases in workmen's compensation. The difficulty resides not in the concept but in the evident inability of the medical expert to aid the trier of facts in deciding whether a heart seizure at work was the natural result of the progressive underlying disease, in which event no compensation would be payable, or was a result chargeable to the impact of the work effort, however normal for the employee, upon that progressive underlying disease. We attempted in Dwyer v. Ford Motor Co., 36 N.J. 487, 178 A.2d 161 (1962), to provide greater guidance. We repeated that it is not enough that a heart seizure occurred at work. But we added that it is not enough that the work effort or strain played a minor or insignificant role. It must appear that the work effort or strain 'contributed in some material degree' (p. 493, 178 A.2d 161), 'played a material part' (p. 497, 178 A.2d 161) in causing, contributing to or accelerating a heart attack, with the burden of course upon the petitioner to show this connection by the preponderance of the believable evidence.

One can hardly say the results reached in workmen's compensation cases have been wholly harmonious. As we have said, our test calls for assistance the medical science seemingly cannot always provide. See Aladits v. Simmons Co., 47 N.J. 115, 123--124, 219 A.2d 517 (1966). Hence, when the expert testimony is in conflict, a given case may well turn upon a lay feeling that the work stress or strain likely did or did not contribute in a material way to the end result. If this is the best that can be done, it nonetheless is tolerable in the light of the pervasive role which workmen's compensation is intended to have in our economic setting. The question is whether the same approach is equally appropriate under a pension statute.

The State has provided workmen's compensation benefits for public employees both at State and local levels. N.J.S.A. 34:15--43. Pension and annuity plans have another role. They provide retirement benefits after years of service, and although disability benefits are a rational part of such a program, there is no inherent compulsion to duplicate the coverage already provided by the workmen's compensation statute. Indeed the Legislature has expressly said there shall not be recoveries for disability under both the workmen's compensation statute and pension plans. The subject is canvassed at length in In re Smith, 57 N.J. 368, 273 A.2d 24 (1971). Thus, with respect to the pension plan involved in the case before us, N.J.S.A. 43:16A--15.2, prior to an amendment in 1971 (c. 175, § 18), provided that no application for retirement benefits may be approved while the member is in receipt of periodic benefits under the wokrmen's compensation law. By reason of the 1971 amendment just cited, an application may now be approved in those circumstances but 'the actuarial equivalent of such periodic benefits remaining to be paid shall be computed and will serve to reduce the pension portion of the retirement allowance payable to the retirant,' subject to certain provisions there noted.

Thus, had the deceased been Disabled by a work-connected accident, he could not have claimed benefits under both statutes, and this because of the legislative policy just mentioned. But an exception to that policy exists with respect to accidental Death benefits. It was held in Eckert v. New Jersey State Highway Department, 1 N.J. 474, 64 A.2d 221 (1949), that a pension may be paid in addition to the death benefits under the workmen's compensation act. Accordingly the claimant before us is free to press the pension claim even though she recovered an award of workmen's compensation. But the question is whether the Legislature intended that an unexpected injury and resultant death which suffice for an award of...