GERARD WARD v. PORT AUTHORITY OF NEW YORK et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5471-03T25471-03T2

GERARD WARD,

Appellant,

v.

PORT AUTHORITY OF NEW YORK and

NEW JERSEY,

Respondent.

_______________________________________

 

Submitted September 28, 2005 - Decided

Before Judges Parker and Grall.

On appeal from New Jersey Department of

Labor, Division of Workers' Compensation.

Klitzman & Gallagher, attorneys for

appellant (Thomas T. Cutchall, on the

brief).

Donald F. Burke, New Jersey Solicitor,

attorney for respondent (Mr. Burke, of

counsel; Howard Conkling, on the brief).

PER CURIAM

Petitioner Gerard Ward, a former employee of the respondent Port Authority of New York and New Jersey (Port Authority), appeals from a final order of the Division of Workers' Compensation of the New Jersey Department of Labor. Because the "findings of the judge . . . could reasonably have been reached on sufficient credible evidence present in the whole record" and the judge's conclusions are consistent with controlling legal principles, we affirm. DeAngelo v. Alsan Masons Inc., 122 N.J. Super. 88, 89 (App. Div.), aff'd o.b., 62 N.J. 581 (1973).

On April 4, 1993, Ward was injured while working as a police officer for the Port Authority. There is no dispute that as a result of that injury Ward has a "permanent orthopedic disability for residual of lumbosacral & sacroiliac sprain, lumbar myositis, disc herniation at L4-5 & L5-S1, right hemilaminectomy & L5-S1 disectomy, scarring & right sciatic reference." Ward applied for and received an accidental, disability retirement pension under the New York State Pension Fund, which is available to employees of the Port Authority. The benefit is sixty-six and two-thirds percent of his final wages, a total of $3,762.76 per month.

The judge found that Ward is permanently disabled as a result of a compensable injury but concluded that Ward was not eligible for full benefits under the New Jersey Workers' Compensation Law, N.J.S.A. 34:15-1 to -128. N.J.S.A. 34:15-43 limits benefits available to one receiving a disability pension 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; provided, however, that such employee, despite retirement, shall, nevertheless, be entitled to the medical, surgical and other treatment and hospital services as set forth in [N.J.S.A.] 34:15-15.

On the basis of N.J.S.A. 34:15-43, the judge entered a final order declaring the Port Authority liable for medical treatment to relieve the effects of Ward's injury and denying Ward any weekly compensation benefits due to his disability retirement. In so ruling, the judge followed this court's decision in Wright v. Port Auth. of New York and New Jersey, 263 N.J. Super. 6 (App. Div.), certif. denied, 133 N.J. 442 (1993) and the Supreme Court's decision in Bunk v. Port Auth. of New York and New Jersey, 144 N.J. 176, 187-94 (1996).

In Wright, we held that the statutory bar against receipt of workers' compensation benefits by one who is receiving an accidental, disability pension applies to employees of the Port Authority. 263 N.J. Super. at 24. In Bunk, the Supreme Court confirmed the continuing validity of Wright and held that N.J.S.A. 34:15-43 is applicable to an employee of a bi-state agency. 144 N.J. at 180, 182 (reversing and holding that Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 115 S. Ct. 394, 130 L. Ed. 2d 245 (1994), did not diminish the precedential value of Wright)). Although the relevant provisions of N.J.S.A. 34:15-43 had been revised during the interval between the decisions in Wright and Bunk, see Bunk, supra, 144 N.J. at 193-94, the Court "interpret[ed] the amendments primarily to be a clarification of existing law, not a change in settled law." Id. at 194. Subsequent to Bunk, the Legislature again amended the relevant portion of N.J.S.A. 34:15-43, reinstating the language we construed in Wright. Thus, the judge correctly concluded that Wright and Bunk control. We too are bound by Bunk.

Affirmed.

 

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A-5471-03T2

October 17, 2005