Bunk v. Port Authority
Bunk v. Port Authority
Opinion of the Court
The opinion of the court was delivered by
In Wright v. Port Authority, 263 N.J.Super. 6, 621 A.2d 941 (App.Div.), certif. denied, 133 N.J. 442, 627 A.2d 1147 (1993), this court held that an employee of the Port Authority of New York and New Jersey who is totally disabled as a result of that employment is not entitled to a workers’ compensation award in this State if he is receiving a disability pension from the State of New York. Following that decision, the United States Supreme Court issued its opinion in Hess v. Port Authority Trans-Hudson, 513 U.S. --, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994), in which its denial of Port Authority’s claim of Eleventh Amendment immunity from suit in the federal court required reexamination of the corporate structure of Port Authority and its relationship to New York and New Jersey. Consideration of Wright in the light of Hess constrains us to disagree with the result we there reached. We are now satisfied that simultaneous receipt by a Port Authori
Petitioner John R. Bunk, then an employee of Port Authority for some five years, sustained a work-connected injury on September 6, 1988, while driving a truck on the Triborough Bridge. The brakes failed, and he struck a wall and several other vehicles. He was ultimately found by the judge of workers’ compensation to be totally disabled by reason of his ensuing orthopedic and neurological injuries. Accordingly, the judge dismissed the claim made by petitioner against the Second Injury Fund. The judge nevertheless concluded, relying on Wright, that because petitioner was by then receiving a disability pension from the State of New York based on the truck-accident injuries, he was not eligible to receive workers’ compensation benefits for those injuries under the law of New Jersey.
Subsequent to filing his claim petition relating to the September 1988 accident, petitioner filed a second petition seeking benefits based on occupational injury. He claimed that during the period of his employment he was constantly exposed to dirt, dust, noxious fumes, and other irritants, resulting in pulmonary, ophthalmologic, otologic and nasopharyngeal disease. Following the joint trial of the two petitions, the judge concluded that petitioner had proved a total of twelve and a half percent of permanent partial total disability based on occupational injury.
Petitioner appeals from the denial of benefits for his total disability referable to the truck accident. Port Authority cross appeals from the allowance of the partial total disability award for-occupational injury. We reverse both judgments.
We address first the so-called double recovery issue. As we pointed out in Wright, the inter-relationship between disability pension benefits and workers’ compensation benefits available to a public employee in this State is defined by N.J.S.A. 34:15-43 and N.J.S.A 43:15A-25.1(b) as synthesized by Conklin v. City of East Orange, 73 N.J. 198, 373 A.2d 996 (1977). N.J.S.A. 34:15-43, in general terms, provides that although public employees are enti
The question then is whether this integrated scheme of workers’ compensation and pension act provisions applies to Port Authority employees. Wright answered that question affirmatively, concluding that Port Authority is a governing body within the intendment of N.J.S.A. 34:15-43, which defines a covered employee as
*618 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, any 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____
It held, therefore, that since workers’ compensation benefits obtained in New Jersey are not offset against a disability pension paid by New York, a Port Authority employee receiving the New York pension is not entitled to any New Jersey compensation benefits. We agree with Wright that Port Authority, although an agency created by bi-state compact, has many characteristics of a body politic and corporate. We are nevertheless constrained to conclude that the term “other governing body” as used by N.J.S.A. 34:15-43 means either a governing body of this State or a governing body whose New Jersey employees are subject to the unilateral exercise of this State’s legislative authority. Port Authority is neither. We therefore find no impediment in the New Jersey statutory scheme to a Port Authority employee receiving both his New York pension and his adjudicated New Jersey compensation benefits.
We base this conclusion on a construction of the pertinent statutory language in the light of the policy considerations underlying the double-recovery bar of N.J.S.A. 34:15-43. It is obvious that public funds not only pay the salaries of public employees but also support, in substantial measure, their entitlements to both workers’ compensation benefits and pension benefits. The double-recovery bar is designed, therefore, to protect the public fisc—
To begin with, and in critical contradistinction to other public employees covered by N.J.S.A. 48:15-43, employees of Port Authority are not members of any New Jersey pension system. Port Authority has elected to join the New York State and Local Employees Retirement System. Thus the pension rights and obligations of all Port Authority employees are subject to and determined by New York law, and New Jersey bears absolutely no financial or administrative responsibility therefor at all. Consequently, the necessity of protecting the financial integrity of New Jersey’s public pension funds simply does not come into play when dealing with a Port Authority employee. Beyond that, irrespective of how expansively “governing body” as used by N.J.S.A. 34:15—13 may be defined, it is nevertheless clear that the double-recovery bar itself is stated in terms of pension entitlements. The precise language of N.J.S.A. 34:15-43 reads as follows: “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....” The prohibition does not use the full phrase “no former public employee,” but that is obviously what it means since the statute addresses only public employees. By the same token, the statute does not say “retired on a public pension.” But we think it plain that that is what the statute means and that it means, moreover, a New Jersey public pension. Indeed, for purposes of defining “governing body” within the legislative intendment of N.J.S.A 34:15-43, an appropriate test of inclusion is whether its employees are enrolled in a New Jersey public employee retirement system.
“The Port Authority was conceived as a financially independent entity, with funds primarily derived from private investors.” United States Trust Co. of N.Y. v. New Jersey, 431 U.S. 1, 4, 97 S.Ct 1505, [1509] 52 L.Ed.2d 92 (1977). Tolls, fees, and investment income account for the Authority’s secure financial position.
Debts and other obligations of the Port Authority are not liabilities of the two founding States, and the States do not appropriate funds to the Authority. The compact and its implementing legislation bar the Port Authority from drawing on state tax revenue, pledging the credit of either State, or otherwise imposing any charge on either State.
[513 U.S. at---, 115 S.Ct. at 398-399, 130 L.Ed.2d at 253-254.]
In this posture, it is clear that the Port Authority’s employee costs are not borne directly by taxpayer dollars but rather by the users of the services provided. Cf. Lefkin v. Venturini, 229 N.J.Super. 1, 10, 550 A.2d 985 (App.Div. 1988), noting that the predicate of the workers’ compensation legislation is the provision of monetary relief for injured workers “by a system in which the cost of industrial accidents is borne by the consumer as part of the cost of the product or service.” We do not suggest that this factor alone would necessarily be conclusive, and we recognize that there are other public entities covered by the statute whose revenues are consumer-based rather than dependent upon tax dollars. Nevertheless, we are persuaded that when an entity’s operations substantially implicate neither the taxpayer dollars of residents of this State nor public employee pension funds of this State, there is no warrant in policy or statutory construction for including that agency as a governing body subject to the bar of N.J.S.A. 34:15— 43.
We are unable to discern any parallel or analogous scheme provided by compact or state legislation authorizing unilateral control by this State over any identifiable group of Port Authority employees. See generally N.J.S.A 32:1-1 to -176 and 32:2-1 to - 36. Port Authority is not included in the list of those agencies whose employees or any of them are, by reason of N.J.S.A. 43:15A-73(a), eligible for membership in the Public Employees Retirement System.
We have other concerns as well in applying the double-recovery bar to Port Authority employees. As we have pointed out, they are members of New York’s pension system. When the New Jersey Legislature prescribed a benefit package consisting of pension and workers’ compensation benefits, as it did by the 1971 amendment of the pension system statutes, it did so based on
That observation brings us to the whole notion of double-recovery in its application here. According to the record in this case, petitioner was awarded an ordinary disability pension by New York providing him with one-third of his salary.
We find instructive in this regard the observations made by the Supreme Court in In re Application of Howard Smith, supra, 57 N.J. at 374, 273 A.2d 24. There Justice Francis pointed out that the double-recovery bar of N.J.S.A. 34:43-15 must be strictly construed, that the pension and compensation laws must be “interpreted favorably to the public employee” and that neither a restriction against full pension entitlements and full workers’ compensation entitlements should be imposed “except upon an express or implied legislative mandate which leaves no doubt of the purpose.” Thus, as the Court pointed out:
And since the purpose of N.J.S.A. 34:15-43 is to withhold benefits that ordinarily would go to public employees who suffer injury arising out of or in the course of their employment, it has been strictly construed. Swan v. Board of Trustees of Teachers’ Pension and Annuity Fund, 85 N.J.Super. 226, 231 [204 A.2d 371] (App.Div. 1964). Consequently its bar against receipt of compensation and a pension arising out of the same accident does not apply to dependents of a deceased employee since it speaks in terms of a living employee, Eckert v. New Jersey State Highway Dept., 1 N.J. 474 [64 A.2d 221] (1949); nor to a person on an ordinary retirement pension based on age and service, as distinguished from a work-connected disability allowance, Pisapia v. City of Newark, 47 N.J.Super. 353 [136 A.2d 67] (Cty.Ct. 1957); nor where a person had two public employments, one with a municipality and the other with a county, and he is receiving a workmen’s compensation award from one and a disability pension from the other. Loges v. Town of Newton, 5 N.J.Super 433 [69 A.2d 556] (App.Div. 1949), aff'd o.b., sub nom. Kays v. Town of Newton, 4 N.J. 356 [73 A.2d 64] (1950).
Following the dictates of Smith, we cannot conclude, even if there were an arguable constructional basis for including Port Authority as a “governing body” subject to N.J.S.A. 34:15^3, that the present text of and public policy expressed by that statute constitutes an unmistakable legislative mandate to bar Port Authority employees from receipt of a compensation award in New Jersey.
With respect to Port Authority’s cross appeal, we are first satisfied that there was substantial credible evidence supporting the judge’s findings with respect to occupational injury, and we will therefore not disturb them. See Close v. Kordulak Bros., 44 N.J. 589, 210 A.2d 753 (1965). And see R. 2:11-3(e)(1)(D).
The judgment denying total disability compensation is reversed, and we remand for entry of an appropriate judgment in petitioner’s favor. The judgment awarding partial total benefits for occupational injury is also reversed.
We note that that list also includes the Interstate Sanitation Commission, the Delaware River Basin Commission and the Delaware River Joint Toll Bridge Commission. We leave for another day the consideration of whether their employees are subject to the double-recovery bar of N.J.S.A. 34:15-43. We further note, as made clear by Wright, that Port Authority employees performing law enforcement functions are not eligible for membership in the New Jersey Police and Fireman’s Retirement System.
According to the record. New York provides for both an ordinary disability pension with a maximum benefit of one-third of salary and a strictly administered accidental disability pension providing a benefit of three-quarters of salary. The accidental disability pension but not the ordinary disability pension is subject to a setoff for New York compensation awards. Thus where New York provides both the compensation benefits and the pension benefits, it maintains an integrated scheme between them, as does New Jersey in similar circumstances.
Reference
- Full Case Name
- JOHN R. BUNK, PETITIONER-APPELLANT/CROSS v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, RESPONDENT/CROSS AND SECOND INJURY FUND
- Cited By
- 1 case
- Status
- Published