We hold that it was proper for Detlefs to file the petition for compensation. The carrier's argument may be summarized as follows: N.J.S.A. 34:15-43 bars Detlefs from all workmen's compensation benefits, citing Reinhold v. Town of Irvington, 134 N.J.L. 416 ( Sup. Ct. 1946). It is true that N.J.S.A. 34:15-43 was amended after the Reinhold case ( L. 1948 c. 269) to provide "that such employee, despite retirement, shall, nevertheless, be entitled to the medical, surgical and other treatment and hospital services as set forth in section 34:15-15 of the Revised Statutes."
We affirm. Reinhold v. Town of Irvington, 134 N.J.L. 416 ( Sup. Ct. 1946); Flynn v. Union City, 30 N.J. Super. 467 ( Cty. Ct. 1954), affirmed 32 N.J. Super. 518 ( App. Div. 1954), certification denied 17 N.J. 253 (1955). In Reinhold petitioner filed a claim for permanent disability compensation following two work-related injuries. After the filing of the petition, Reinhold applied for retirement pension as a result of the disability.
" In the case of Reinhold v. Town of Irvington, 134 N.J.L. 416 ( Sup. Ct. 1946), the plaintiff sustained injury and prior to his hearing on a workmen's compensation claim, was placed on pension by the municipality, which pension status was held a bar to payment on his workmen's compensation claim. He contended, as does the petitioner in the matter sub judice, that his status was to be determined as of the date of the injury complained of, in measuring his qualification for workmen's compensation benefits.
It is first argued that the receipt of both a pension and compensation benefits results in double compensation for one accident paid for from the same source and that this is unsound, contrary to public policy and without legislative authority. Reliance is placed upon the cases of DeLorenzo v. Board ofCommissioners of the City of Newark, 134 N.J.L. 7 (E. A. 1946) and Reinhold v. Town of Irvington, 134 N.J.L. 416(Sup.Ct. 1946). In the former case the public employee was receiving workmen's compensation benefits when he attempted to also recover a pension, in the latter the employee was receiving a pension when he attempted to additionally recover workmen's compensation benefits. It was held in the DeLorenzo case "The relationship of an employer and an employee is not consistent with the position of a pensioner as such, for the reason that a pensioner severs all relationship of employer and employee, he has no further duty to his employer nor is he entitled to any of the benefits which may accrue to an employee.
"Nothing herein contained shall be construed as affecting or changing in any way the provisions of any statute providing for sick, disability vacation or other leave for public employees or any provision of any retirement or pension fund provided by law." It is said that the case of Reinhold v. Town of Irvington, 134 N.J.L. 416; 48 Atl. Rep. (2 d) 641, decided by this court in 1946, is controlling, and that by the force of R.S. 34:15-43 and Reinhold v. Town of Irvington, supra, that prosecutor herein is barred from receiving the compensation award by reason of his acceptance of a pension. Assuming, but not conceding that the holding enunciated in Reinhold v. Town ofIrvington, supra, might be applicable to the facts in the matter at bar, we are nevertheless persuaded that the respondents herein cannot successfully defend and defeat prosecutor's rights under the determination and award heretofore made in his favor.
The State argued that Loges could not recover double benefits; however, we distinguished this situation from others: The clear distinction arises from the fact that in both the Reinhold [ v. Town of Irvington, 134 N.J.L. 416, 48 A.2d 641 (Sup. 1946)] and the DeLorenzo [ v. Board of Com'rs of City of Newark, 134 N.J.L. 7, 45 A.2d 686 (E A 1948)] cases the municipality was the source from which both compensation and pension payments would be paid, hence the recipient of both would be receiving double payment from a single employer. Breheney v. Essex County, 136 N.J.L. 524 (E A 1948). . . .
It has been recognized that N.J.S.A. 34:15-43 bars workmen's compensation payments when the former employee is receiving accident disability pension benefits. In re Application of Smith, 57 N.J. 368, 375 (1971); Swan v. Bd. of Trustees of Teachers' Pension Fund, 85 N.J. Super. 226 (App.Div. 1964); Ziegler v. State, 95 N.J. Super. 273 (App.Div. 1967); Reinhold v. Irvington, 134 N.J.L. 416 (Sup.Ct. 1946); Flynn v. Union City, 30 N.J. Super. 467 (Cty.Ct.), aff'd 32 N.J. Super. 518 (App.Div. 1954), certif. den. 17 N.J. 253 (1955).
It maintains that these sections, when read together, indicate that an employee must formally be retired by action of the Board before he reaches 65 in order for him to qualify for benefits. In support of this contention respondent cites Reinhold v. Irvington, 134 N.J.L. 416 (Sup.Ct. 1946); Flynn v. Union City, 30 N.J. Super. 467 (Cty.Ct. 1954), aff'd 32 N.J. Super. 518 (App.Div. 1954), certif. den. 17 N.J. 253 (1955), and Ziegler v. State, 95 N.J. Super. 273 (App.Div. 1967).
Sanders v. Jarka Corp., 1 N.J. 36 (1948). In support of its contention that the accident did not arise out of and in the course of the petitioner's employment, the respondent cites the cases of Crotty v. Driver-Harris Co., 45 N.J. Super. 75 ( Cty. Ct. 1957), affirmed 49 N.J. Super. 60 ( App. Div. 1958); Reinhold v. Town of Irvington, 134 N.J.L. 416 ( Sup. Ct. 1946) and Jasaitis v. City of Paterson, 48 N.J. Super. 103 ( App. Div. 1957), affirmed 31 N.J. 81 (1959). The Crotty-Driver case, at 45 N.J. Super. 79, after stating that the phrase "arising out of" refers to the origin or cause of the accident and the term "in the course of" refers to the time, place and circumstances under which the accident took place, proceeds to quote Belyus v. Wilkinson, Gaddis Co., 115 N.J.L. 43, 47 ( Sup. Ct. 1935):
Breheny v. Essex County, supra, is not in point because, while in that case both the pension and the compensation were for disability, the case was decided on considerations of res adjudicata. In Flynn v. Union City, supra, the retirement and the compensation were for the same disability, and the pension was granted before the award for compensation, which brought the case squarely within the language of R.S. 34:15-43 and Reinhold v. Town of Irvington, 134 N.J.L. 416 ( Sup. Ct. 1946). In Pirher v. Bd. of Public Works of South River, supra, Pirher sought both compensation and retirement for the same disability.