DONALD FRANK v. TOWNSHIP OF OLD BRIDGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3163-07T13163-07T1

DONALD FRANK, THOMAS CHERNEY,

KENNETH THOMPSON, PAUL SICOLA,

Plaintiffs,

and

KENNETH POPEK,

Plaintiff-Appellant,

v.

TOWNSHIP OF OLD BRIDGE,

BARBARA CANNON and HIMANSHU SHAH,

Defendants-Respondents.

____________________________________

 

Argued November 13, 2008 - Decided

Before Judges Stern, Lyons and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4747-98.

Stephen B. Hunter argued the cause for appellant (Detzky & Hunter, LLC, attorneys; Mr. Hunter, of counsel and on the briefs).

Robert J. Merryman argued the cause for respondents (Apruzzese, McDermott, Mastro & Murphy, P.C., attorneys; Mr. Merryman, of counsel and on the brief; John P. Harrington, on the brief).

PER CURIAM

Plaintiff, Kenneth Popek, appeals from a judgment of January 29, 2008, dismissing his complaint "with prejudice." He seeks post-retirement benefits as a retiree on disability. On this appeal, Popek argues that issues of material fact preclude summary judgment; that he "detrimentally relied upon the conduct of agents and representatives of the Township and was entitled to the receipt of the contractual long-term disability benefits" and was contractually entitled to the benefits "without consideration of the prescriptions of N.J.S.A. 40A:14-154 as determined by the Public Employment Relations Commission [PERC]"; that he "was eligible for special compensation benefits pursuant to N.J.S.A. 40A:14-154 since [he] was permanently disabled due to an injury suffered in the performance of his duties," and that those "special compensation" benefits include psychological illnesses or stress-related problems.

Popek was awarded an ordinary disability retirement by the Board of Trustees of the Public Firemen's Retirement System effective April 1, 1994. The disability was based on a "General Anxiety Disorder, with panic attacks." In workers' compensation proceedings, Popek endeavored to demonstrate that the disability was work-related. Those proceedings were settled and dismissed under N.J.S.A. 34:15-20, and are therefore not relevant to the issues before us.

At the time Popek applied for his disability retirement in November 1993, Article XII(B) of a collective bargaining agreement (CBA) between his union and the Township of Old Bridge provided:

1. All employees will be covered by a long term disability insurance. This insurance would supplement any other benefits so that the employees with long term illnesses or serious accident (whether job connected or not) would receive a total of two-thirds (2/3) their regular pay, after a waiting period of thirty (30) days. Such payments would continue until age sixty-five (65) for illness and/or for life if for accident. Said benefit is administered in accordance with Section D. below.

Popek contends that he relied on this provision when applying for his ordinary disability retirement and that the Township is estopped from denying these benefits despite his pension. He received benefits from CIGNA, the Township's disability carrier for one year, from February 23, 1994 through February 22, 1995. There is some dispute as to whether those benefits were discontinued following our decision in Brown v. Twp. of Old Bridge, No. A-6352-90T2 (App. Div. Jan. 22, 1993) ("Brown I"), certif. denied, 133 N.J. 440 (1993), or because the policy benefits terminated after a year if an insured could secure employment.

Popek contends:

Because of the specific language of Article XII(B); the past practices of providing police retirees Cherney, Frank, Thompson and Sicola with the contractual disability because of their illnesses; and the actions of the Township in providing Popek with one year of the contractual long term disability benefits, Popek was certain, at the time that he retired, that he would receive the contractual long term disability benefits until he turned 65 through the Township's purchase of the required health insurance coverage.

We have addressed the background issues relating to Popek's claim for the additional benefits in a series of opinions. In Brown v. Twp. of Old Bridge, 319 N.J. Super. 476 (App. Div.) ("Brown III"), certif. denied, 162 N.J. 131 (1999), we restated our prior holdings "that N.J.S.A. 40A:14-154 preempted the field of 'special compensation' in the form of supplemental disability payments," id. at 490, and that the statute applied

to all municipal benefits for permanent disability given to police officers whether pursuant to ordinance or by negotiated agreement [but] that equitable estoppel should apply to require defendant to enforce the disability provisions in the collective bargaining agreement, subject to the limitations in N.J.S.A. 40A:54-154 that such benefits ... shall not exceed plaintiff's salary at the time of the injury.

[Id. at 491 (quoting Brown II).]

Speaking through Judge (now Justice) Wallace, we held that "the collective bargaining agreement which provides for benefits in excess of the statutory limits of N.J.S.A. 40A:14-154 [was] not enforceable," id. at 496, that "the term 'pension' in N.J.S.A. 40A:14-154, includes a PFRS retirement allowance," id. at 501, and that the statute is constitutional. Id. at 508-09.

N.J.S.A. 40A:14-154 provides:

If a member or officer of the municipal police department or force is permanently disabled from injuries received while in the performance of his duties, and the chief or authority in charge of such police department or force shall recommend that special compensation be granted, and a physician appointed by the governing body of said municipality shall certify as to the probable permanency of such disability, the governing body of the municipality, in their discretion, by ordinance, may provide for special compensation to said disabled member or officer, designating the amount thereof and manner of payment either in a lump sum or by an annual allowance, but such special compensation plus any pension paid and any award for workmen's compensation shall not exceed the salary payable at the time of the sustaining of the injuries. The governing body of said municipality shall include appropriate budget items and provide for the payment of such special compensation.

(Emphasis added.)

In Popek's case, the Law Division originally granted plaintiff "the long-term disability benefits [(LTDB)] under the CBA (in addition to his disability pension and workers' compensation benefits)" as a result of finding an estoppel, based on Brown II. Popek v. Twp. of Old Bridge, No. A-2079-05T1, slip op. at 6 (App. Div. Jan. 23, 2007). However, we reversed, because in light of the decision in Brown I, "at the time this plaintiff retired and commenced receipt of his pension, payment of such benefits had been suspended," and the doctrine of equitable estoppel could not apply in this case, "at least without a showing by Popek of reliance at a critical time prior to sustaining his disability or seeking the special compensation." Id. at 8. We relied on Middleton Twp. PBA v. Twp. of Middleton, 162 N.J. 361 (2000), in which an officer was not entitled to health insurance benefits even though receiving them for ten years. Id. at 10. We further noted in our opinion that N.J.S.A. 40:14-154 "permits special compensation to an officer only when he or she is 'permanently disabled from injuries received while in the performance of his duties,'" and the record did not sufficiently reveal a work-related "permanent disability." Id. at 12. Accordingly, we reversed the grant of summary judgment and remanded "for further proceedings on the material issues which remain in contest" id. at 12-13, whether there was "good faith reliance on the expectation of the benefits" and "whether the disability was work-related so that special compensation could have been negotiated or provided in the manner consistent with the statute." Id. at 10.

On the remand, the Law Division ruled for the Township. The ruling must be read to include that Popek had no reasonable expectation he would receive contractual benefits for more than a year (which he received under the CIGNA disability policy), that he could not receive benefits under the contract to the extent it provided for greater benefits than permitted by the statute, and the statute did not cover psychological or stress-related "illnesses," as opposed to an "injury."

As noted, the CBA provided for "long-term disability" coverage to "supplement any other benefits so that employees with long-term illnesses or serious accident (whether job connected or not) would receive a total of two-thirds (2/3) of their regular pay." However, N.J.S.A. 40A:14-154 permits special compensation only to officers "permanently disabled from injuries received while in the performance of his duties" and the total of all benefits, even then, cannot be more than the salary at the time of injury.

For purposes of summary judgment we accept that Popek suffers from an anxiety disorder due to job-related harassment and that he knew of the CBA provisions when he applied for his "ordinary disability retirement." However, the grant of summary judgment presents an issue of law, and we believe Popek is not entitled to "special compensation" because there is no showing that the psychological condition is a permanent disability "from injuries" within the meaning of the statute. Popek's own statement of material facts refers to an extended process because he was allegedly harassed "[f]or approximately six years, during the time period from approximately September 1987 until Popek suffered a severe panic attack mimicking the symptoms of a heart attack at the workplace on November 24, 1993," his last day of work, when he was hospitalized after being "served with a Notice of Discipline." Thus, the long-term "illness" was not an "injury."

As for the estoppel, this is not Middleton where there was reliance and the officer had been paid for ten years. Here the LTDB payments had been terminated before Popek's pension was granted; the Township stopped paying them even before his disability retirement application was filed. See supra,, note 1.

The remand judge "was struck by the fact that everything [stated in the Township's] papers [was] exactly consistent with what the Court's analysis was" at the first hearing and "totally consistent with the Court's findings." As a result, the judge "adopted" the Township's arguments, and concluded that N.J.S.A. 40A:14-154 did not permit "special compensation" because workplace or job-related stress was not an "injury" and plaintiff did not suffer a "permanent disability" from an injury much less one related to the duties of a police officer. We do not approve of the form of the opinion. However, the record provides no basis for "special compensation" under the statute, or LTDB as a result of an estoppel.

 
Accordingly, the judgment is affirmed.

Plaintiff states that after the decision in Brown II, the Township advised plaintiff and others it would not continue to provide contractual long-term disability benefits to retirees who retired due to "illness" as opposed to "work related injuries." However, Brown II was not decided until January 2, 1996. Brown v. Twp. of Old Bridge, A-1551-93T5 (App. Div. Jan. 2, 1996), certif. denied, 144 N.J. 587 (1996) The Township states it "terminated all long-term disability benefits to retired Police Officers" on January 23, 1993, after the decision in Brown I. As the payments to Popek started a year later, the insurance coverage provided must have been deemed independent of the long-term disability benefits under the CBA.

(continued)

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A-3163-07T1

July 31, 2009