SCOTT ROGOW VS. BOARD OF TRUSTEES (POLICE AND FIREMEN'S RETIREMENT SYSTEM) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1346-17T2
SCOTT ROGOW (DECEASED),
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, POLICE
AND FIREMEN'S RETIREMENT
SYSTEM,
Respondent-Respondent.
______________________________
Argued February 28, 2019 – Decided March 26, 2019
Before Judges Simonelli, Whipple and Firko.
On appeal from the Board of Trustees, Police and
Firemen's Retirement System, PFRS No. 3-10-42927.
Craig S. Gumpel argued the cause for appellant Lynne
Rogow.
Amy Chung, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Danielle P. Schimmel,
Deputy Attorney General, on the brief).
PER CURIAM
Scott Rogow (Rogow) was a firefighter with the City of Paterson (City)
who retired on an accidental disability retirement allowance under N.J.S.A.
43:16A-7 and received his monthly retirement allowance until his death.
Rogow's children and widow, appellant Lynne Rogow, received survivor
accidental disability retirement benefits after Rogow's death pursuant to
N.J.S.A. 43:16A-7(3). Approximately four years after Rogow's death, appellant
requested that the Board of Trustees (Board) of the Police and Firemen's
Retirement System (PFRS) amend Rogow's pension status so that she could
receive the enhanced survivor accidental death benefits under N.J.S.A. 43:16A-
10. Appellant appeals from the Board's October 19, 2017 final agency decision
denying reconsideration of its May 12, 2017 denial of her request. We affirm.
I.
We begin with a review of the pertinent authority. The PFRS Act,
N.J.S.A. 43:16A-1 to -68, and corresponding regulations N.J.A.C. 17:4-6.1 to -
6.18, govern the PFRS.
General Provisions
N.J.S.A. 43:16A-1 contains the following pertinent definitions:
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(3) "Member" shall mean any . . . fireman included in
the membership of the retirement system pursuant to
this amendatory and supplementary act . . . .
....
(7) "Service" shall mean service as a . . . fireman paid
for by an employer.
....
(11) "Annuity" shall mean payments for life derived
from the aggregate contributions of a member.
(12) "Pension" shall mean payments for life derived
from contributions by the employer.
(13) "Retirement allowance" shall mean the pension
plus the annuity.
....
(16) "Retirement" shall mean the termination of the
member’s active service with a retirement allowance
granted and paid under the provisions of this act.
[(Emphasis added).]
N.J.A.C. 17:4-6.7(a)(1) provides that "[a] 'member in service' means that the
member or the employer was making pension contributions to the retirement
system at the time of filing the application for a disability retirement allowance."
N.J.A.C. 17:4-6.1 governs the retirement application process. N.J.A.C.
17:4-6.1(a) provides that "[a] member's retirement application becomes
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effective on the first of the month following receipt of the application unless a
future date is requested." N.J.A.C. 17:4-6.2 provides that a member's retirement
allowance becomes due and payable "[thirty] days after the date the Board
approved the application for retirement or one month after the date of the
retirement, whichever is later." N.J.A.C. 17:4-6.3(a) provides:
Except as provided by N.J.A.C. 17:4-6.7, a member
shall have the right to withdraw, cancel or change an
application for retirement at any time before the
member's retirement allowance becomes due and
payable by sending a written request signed by the
member. Thereafter, the retirement shall stand as
approved by the Board.
[(Emphasis added).]
Accidental Disability Retirement Allowance and
Survivor Accidental Disability Retirement Death Benefits
N.J.S.A. 43:16A-7 governs retirement on an accidental disability
retirement allowance. N.J.S.A. 43:16A-7(2) provides:
Upon retirement for accidental disability, a member
shall receive an accidental disability retirement
allowance which shall consist of:
(a) An annuity which shall be the actuarial equivalent
of his aggregate contributions and
(b) A pension in the amount which, when added to the
member’s annuity, will provide a total retirement
allowance of [two-thirds] of the member’s actual
annual compensation for which contributions were
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being made at the time of the occurrence of the accident
or at the time of the member’s retirement, whichever
provides the largest possible benefit to the member.
N.J.S.A. 43:16A-7(3) governs survivor accidental disability retirement
death benefits:
Upon receipt of proper proofs of the death of a member
who has retired on accidental disability retirement
allowance, there shall be paid to such member’s
beneficiary, an amount equal to [three and one-half]
times the compensation upon which contributions by
the member to the annuity savings fund were based in
the last year of creditable service; provided, however,
that if such death shall occur after the member shall
have attained [fifty-five] years of age the amount
payable shall equal [one-half] of such compensation
instead of [three and one-half] times such
compensation.
[(Emphasis added).]
Survivor Death Benefits
N.J.S.A. 43:16A-9(1) provides for payment of death benefits to the
survivor of a PFRS member who dies from non-accidental means while in active
service:
Upon the receipt of proper proof of the death of a
member in active service on account of which no
accidental death benefit is payable under [N.J.S.A.
43:16A-10] there shall be paid to such member’s
widow or widower a pension of [fifty percent] of final
compensation for the use of himself or herself and
children of the deceased member, to continue during his
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or her widowhood; if there is no surviving widow or
widower or in the case the widow or widower dies or
remarries, [twenty percent] of final compensation will
be payable to one surviving child, [thirty-five percent]
of final compensation to two surviving children in
equal shares and if there be three or more children,
[fifty percent] of final compensation will be payable to
such children in equal shares.
In the event of death occurring in the first year of
creditable service, the benefits, payable pursuant to this
subsection, shall be computed at the annual rate of
compensation.
If there is no widow or widower or child, [twenty-five
percent] of final compensation will be payable to one
surviving parent or [forty percent] of final
compensation will be payable to two surviving parents
in equal shares.
[(Emphasis added).]
N.J.S.A. 43:16A-9(5)(a) addresses when a member is deemed an active member
of the PFRS for eligibility purposes:
For the purposes of this section and [N.J.S.A. 43:16A-
10(5)], a member of the [PFRS] shall be deemed to be
an active member for a period of no more than [ninety-
three] days while on official leave of absence without
pay when such leave is due to any reason other than
illness, and for a period of not more than one year in
the event of an official leave (a) due to the member’s
maternity, or (b) to fulfill a residency requirement for
an advanced degree, or (c) as a full-time student at an
institution of higher education, and (1) while he is
disabled due to sickness or injury arising out of or in
the course of his employment as a member to whom this
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act applies, is not engaged in any gainful occupation,
and is receiving or entitled to receive periodic benefits
(including any commutation of, or substitute for, such
benefits) for loss of time on account of such disability
under or by reason of workmen’s compensation law,
occupational disease law or similar legislation and has
not retired or terminated his membership; or (2) for a
period of no more than two years while on official leave
of absence without pay if satisfactory evidence is
presented to the retirement system that such leave of
absence without pay is due to the member’s personal
illness other than an illness to which (1) above applies.
[(Emphasis added).]
N.J.S.A. 43:16A-9(5)(b) addresses the timing of the member's death:
If a member dies within [thirty] days after the date of
retirement or the date of board approval, whichever is
later, a death benefit shall be payable only if he is
deemed to be an active member in accordance with this
section; provided, however, a member applying for
disability benefits shall be deemed an active member if
he was covered by the death benefit provisions of the
act at the termination of employment, filed the
application for disability retirement with the retirement
system within [thirty] days following such termination
of employment and dies within [thirty] days after the
date of retirement or the date of board approval,
whichever is later. If a member files an application for
disability retirement while in service and otherwise
meets the requirements for disability retirement, but
dies before the retirement takes effect, the retirement
shall be considered effective.
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Survivor Accidental Death Benefits
N.J.S.A. 43:16A-10(1) provides for payment of survivor accidental death
benefits "[u]pon the death of a member in active service as a result of . . . an
accident met in the actual performance of duty at some definite time and
place[.]" (Emphasis added). N.J.S.A. 43:16A-10(2) provides, in pertinent part:
Upon the receipt of proper proofs of the death of a
member on account of which an accidental death
benefit is payable, there shall be paid to his widow or
widower a pension of [seventy percent] of the
compensation, upon which contributions by the
member to the annuity savings fund were based in the
last year of creditable service, for the use of herself or
himself and the children of the deceased member; if
there is no surviving widow or widower or in case the
widow or widower dies, [seventy percent] of such
compensation will be payable to the member’s
surviving child or surviving children in equal shares.
N.J.S.A. 43:16A-10(5) provides:
In addition to the foregoing benefits payable under
[N.J.S.A. 43:16A-10(2)], there shall also be paid in one
sum to such beneficiary, if living, as the member shall
have nominated by written designation duly executed
and filed with the retirement system, otherwise to the
executor or administrator of the member’s estate, an
amount equal to [three and one-half] times the
compensation upon which contributions by the member
to the annuity savings fund were based in the last year
of creditable service.
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Further, N.J.S.A. 43:16A-10(6) provides:
In addition to the foregoing benefits, the State shall pay
to the member’s employer-sponsored health insurance
program all health insurance premiums for the coverage
of the member’s surviving widow or widower and
dependent children.
Unlike, N.J.S.A. 43:16A-9(5)(b), N.J.S.A. 43:16A-10 contains no language
regarding the timing of the member's death.
II.
We now turn to the facts of this case. Rogow suffered a work-related
injury on July 6, 2009. On October 28, 2010, Rogow submitted an application
for an accidental disability retirement allowance. On May 2, 2011, the Board
approved Rogow's application, effective November 1, 2010. Rogow remained
on the City's payroll through May 2011. On June 1, 2011, Rogow began
receiving an accidental disability retirement allowance of $5,238.88 per month.
Rogow died on August 28, 2012. After receiving notice of Rogow's death,
on September 20, 2012, the Division of Pensions and Benefits (Division)
notified appellant that she would receive a survivor accidental disability
retirement benefit of $3,884.06 per month for the rest of her life or until she
remarried, plus a group life insurance benefit in the amount of $326,261.64. In
addition, Rogow's two minor children would each receive $971.02 per month.
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In October 2012, appellant and the children began receiving their monthly
benefits. Appellant also received the $326,261.64 group life insurance benefit.
The children's monthly benefits terminated on July 1, 2017. By that time, they
had received a total of $114,580.36.
Appellant filed a dependency petition with the Division of Workers'
Compensation for compensation for Rogow's death under N.J.S.A. 34:15-7. On
August 11, 2016, a judge of compensation found Rogow's death was causally
related to his employment with the City and dependency benefits were payable
pursuant to N.J.S.A. 34:15-13. The judge approved a settlement providing
dependency benefits to appellant and the children totaling $347,850.
Appellant also filed a claim with the Public Safety Officers' Benefits
(PSOB) Office.1 On September 9, 2016, the PSOB Office found Rogow's death
was covered under the PSOB Act, 42 U.S.C. §§ 3796 to 3796d-7,2 and was a
direct and proximate result of an injury sustained in the line of duty. The PSOB
Office concluded appellant was entitled to $161,517.66, and each of the children
were entitled to $53,839.29.
1
The record does not reveal the date appellant filed the dependency petition
with the Division of Workers' Compensation or the claim with the PSOB.
2
The PSOB Act has been transferred to 34 U.S.C.A. §§ 10281 to 10308.
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On September 6, 2016, approximately six years after Rogow's effective
retirement date and approximately four years after his death, appellant filed a
request with the Board to amend Rogow's "pension status from 'accident[al]
disability' to 'line of duty death'" pursuant to N.J.S.A. 43:16A-10. Appellant
provided no explanation for the delay in making this request.
The request was referred to the Division for administrative review. On
January 24, 2017, the Division denied the request administratively. Quoting the
language in N.J.A.C. 17:4-6.3(a),3 the Division found Rogow was approved for
an accidental disability retirement allowance, effective November 1, 2010;
Rogow began receiving his retirement allowance on July 1, 2011; and appellant
had been receiving her survivor accidental disability retirement benefits since
October 2012.
Appellant appealed the Division's decision. On May 8, 2017, the Board
denied the appeal. In a May 12, 2017 written decision, the Board found N.J.S.A.
43:16A-10(1) requires that the death of the PFRS member must occur while in
active service, and Rogow was not eligible for accidental death benefits because
3
The Division incorrectly cited N.J.A.C. 17:2-6.3(a), which governs the Public
Employees' Retirement System; however, it is clear the Division was referring
to N.J.A.C. 17:4-6.3(a).
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he was retired and receiving an accidental disability retirement allowance at the
time of his death.
Appellant requested reconsideration of the Board's decision. In an
October 19, 2017 final agency decision, the Board denied reconsideration,
reiterating as follows:
As an active member [] Rogow applied for and was
granted an [a]ccidental disability retirement. At that
point his status was no longer an active participant, but
[] Rogow was a retiree of PFRS. As a matter of law,
the Board denied [appellant's] request in accordance
with [N.J.S.A.] 43:16A-10 which requires that the
death of the PFRS member must occur while the
member is in active service. Because [] Rogow was
retired and receiving [a]ccidental disability benefits he
is not eligible for [a]ccidental death benefits.
The Board acknowledged that the term "active service" is not specifically
defined in N.J.S.A. 43:16A-10, but cited the definition of "service" in N.J.S.A.
43:16A-1 that "'[s]ervice' shall mean service as a . . . fireman paid for by an
employer." The Board also noted that N.J.S.A. 43:16A-9(5)(a) provides that a
PFRS member is in active service if he has not retired or terminated his
membership.
The Board determined that the history of N.J.S.A. 43:16A-10 revealed a
legislative intent to narrow the eligibility for accidental death benefits and
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require that such benefits be awarded only upon the death of a member who was
in active service. The Board explained:
A review of the history of [N.J.S.A.] 43:16A-10
indicates that prior to 1967, an [a]ccidental death
benefit was awarded "[u]pon the accidental death of a
member before retirement." L. 1964, c. 241, §7
(emphasis added). Thus, a death benefit was payable
so long as no retirement application was filed, even if
the member had left service and was not contributing to
the system. In 1967, the language of [N.J.S.A.]
43:16A-10 was amended to provide the benefit "[u]pon
the death of a member in active service." L. 1967, c.
250 (Chapter 250), § 10 (emphasis added). Chapter
250's definition of the term "retirement" further
indicates . . . the Legislature's intent to narrow the
eligibility for an accidental death benefit. It defined
"[r]etirement" as "withdrawal from active service with
a retirement allowance granted under [the PFRS
statutes]."
The Board also determined that "[b]y the plain language of [N.J.S.A.]
43:16A-10(1), the Legislature intended that an accidental death benefit only be
available to those members who are in 'active service' at the time of death and
had not yet retired."
III.
On appeal, appellant contends the Board's decision was arbitrary,
capricious and unreasonable because it incorrectly found N.J.S.A. 43:16A-10(1)
requires that the death of the PFRS member must occur while in active service .
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Appellant also contends the history of N.J.S.A. 43:16A-10 does not support the
Board's decision.
Our review of the Board's decision is limited. Russo v. Bd. of Trs., Police
& Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). We will not disturb the Board's
decision absent "a clear showing that it is arbitrary, capricious, or unreasonable,
or that it lacks fair support in the record." Ibid. (quoting In re Herrmann, 192
N.J. 19, 27-28 (2007)). "However, because 'questions of law are the province
of the judicial branch,' we are 'in no way bound by [the Board's] interpretation
of a statute or its determination of a strictly legal issue . . . .'" Ibid. (citation
omitted) (quoting 37 Steven L. Lefelt et al., New Jersey Practice, § 7.19 (2d ed.
2000); Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). We review
an issue of statutory interpretation de novo. McGovern v. Rutgers, 211 N.J. 94,
108 (2012). Because this appeal involves the Board's interpretation of N.J.S.A.
43:16A-10(1), our review is de novo.
"When interpreting a statute, our main objective is to further the
Legislature's intent." In re Pontoriero, 439 N.J. Super. 24, 35 (App. Div. 2015)
(quoting TAC Assocs. v. N.J. Dep't of Envtl. Prot., 202 N.J. 533, 540 (2010)).
Toward that end, the plain language of the statute provides the starting point for
the analysis. In re Kollman, 210 N.J. 557, 568 (2012). The language of the
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statute must be construed in accordance with its ordinary and common sense
meaning. State ex rel. K.O., 217 N.J. 83, 91 (2014). "If the language is clear
on its face, courts should enforce [the statute] according to its terms." Bermudez
v. Kessler Inst. for Rehab., 439 N.J. Super. 45, 51 (App. Div. 2015) (alteration
in original) (quoting Perrelli v. Pastorelle, 206 N.J. 193, 199-201 (2011)).
The language of N.J.S.A. 43:16A-10(1) is clear on its face. The statute
expressly provides that accidental death benefits are payable "[u]pon the death
of a member in active service." (Emphasis added). First, Rogow was not a
"member in service" at the time of his death, as he and the City were not making
pension contributions to the PFRS at that time. See N.J.A.C. 17:4-6.7(a)(1) ("A
'member in service' means that the member or the employer was making pension
contributions to the retirement system at the time of filing the application for a
disability retirement allowance").
Second, although N.J.S.A. 43:16A-10 does not specifically define "active
service," it is clear that Rogow also was not in "active service" at the time of his
death. The term "active" is defined, in part, as "engaged in full-time service
esp[ecially] in the armed forces." Merriam-Webster's Collegiate Dictionary 13
(11th ed. 2014). N.J.S.A. 43:16A-1(7) defines "service" as "service as a . . .
A-1346-17T2
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fireman paid for by an employer." At the time of his death, Rogow was not
engaged in full-time service as a fireman and was no longer on the City's payroll.
Moreover, Rogow's active service terminated upon his retirement. See
N.J.S.A. 43:16A-1(16) ("Retirement" means "the termination of the member's
active service with a retirement allowance granted and paid under the provisions
of this act."). Further, a PFRS member is not deemed to be an active member if
he has retired. See N.J.S.A. 43:16A-9(5)(a) ("[A] member of the [PFRS] shall
be deemed to be an active member . . . [if he] has not retired or terminated his
membership"). Rogow's retirement terminated his active service as of June 1,
2011, when he began receiving an accidental disability retirement allowance.
Accordingly, we conclude that a member who is retired and receiving a
retirement allowance from the PFRS at the time of his death is not "a member
in active service" and thus is not entitled to accidental death benefits under
N.J.S.A. 43:16A-10.
Appellant attempts to overcome this conclusion by arguing that if the
Legislature intended for N.J.S.A. 43:16A-10 to be based on the timing of a
member's death and to require that the death occur while in active service, it
would have included timing of death language in the statute similar to the
language in N.J.S.A. 43:16A-9. Appellant posits that because of this omission,
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the only relevant issue in determining eligibility for an accidental death benefit
is whether the death was the result of the member's injury that occurred in the
line of duty. We disagree.
"Ordinarily, we are enjoined from presuming that the Legislature intended
a result different from the wording of the statute or from adding a qualification
that has been omitted from the statute." DiProspero v. Penn, 183 N.J. 477, 493
(2005). Thus, "[a] court should not 'resort to extrinsic interpretive aids' when
'the statutory language is clear and unambiguous, and susceptible to only one
interpretation . . . .'" Id. at 492 (quoting Lozano v. Frank DeLuca Constr., 178
N.J. 513, 522 (2004)).
"When the plain meaning is unclear or ambiguous, we next consider
extrinsic evidence of the Legislature's intent, including legislative history and
statutory context." Pontoriero, 439 N.J. Super. at 36; see also Bermudez, 439
N.J. Super. at 50. "Likewise, interpretations of the statute and cognate
enactments by agencies empowered to enforce them are given substantial
deference in the context of statutory interpretation." Klumb v. Bd. of Educ., 199
N.J. 14, 24 (2009). "Above all, we 'seek to effectuate the "fundamental purpose
for which the legislation was enacted."'" Aponte-Correa v. Allstate Ins. Co.,
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162 N.J. 318, 323 (2000) (quoting Twp. of Pennsauken v. Schad, 160 N.J. 156,
170 (1999)).
Appellant’s attempt to infer the legislative intent through her comparison
of N.J.S.A. 43:16A-9 and N.J.S.A. 43:16A-10 is based on her erroneous
application of statutory context, and thereby leads to an incorrect interpretation
of legislative intent. We reiterate that N.J.S.A. 43:16A-9(1) provides, in
pertinent part:
Upon the receipt of proper proof of the death of a
member in active service on account of which no
accidental death benefit is payable under [N.J.S.A.
43:16A-10] there shall be paid to such member's widow
or widower a pension of [fifty percent] of final
compensation for the use of himself or herself and
children of the deceased member . . . .
[(Emphasis added).]
Although appellant is correct that the statute provides death benefits upon
the death of a member in active service, that requirement is not dependent on
the language in N.J.S.A. 43:16A-9(5), as she claims. N.J.S.A. 43:16A-9(5) sets
forth the circumstances under which a member shall be deemed to be an active
member under certain sections of the PFRS Act; however, it does not set forth
the requirement that a member's death occur while in active service. Rather, as
in N.J.S.A. 43:16A-10(1), that requirement appears in the first line of N.J.S.A.
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43:16A-9(1). Cf. N.J.S.A. 43:16A-10(1) (accidental death benefits are payable
"[u]pon the death of a member in active service"). The statutory language
clearly and unambiguously provides that death benefits under both N.J.S.A.
43:16A-9 and N.J.S.A. 43:16A-10 are payable only if the member is "in active
service" at the time of death.
In her analysis of the statutory context, appellant fails to recognize the
similar language in N.J.S.A. 43:16A-9(1) and N.J.S.A. 43:16A-10(1), and
instead focuses on the timing of death requirements in N.J.S.A. 43:16A-9(5)(b).
Although those requirements may vary in scope and detail from the requirements
of N.J.S.A. 43:16A-10(1), they do not create any ambiguity in the language of
N.J.S.A. 43:16A-10(1), nor do they contradict the first line of the statute, which
explicitly provides that accidental death benefits are payable "[u]pon the death
of a member in active service." Thus, appellant's examination of N.J.S.A.
43:16A-9(5)(b) does not create an ambiguity in N.J.S.A. 43:16A-10 and does
not contradict the Board's determination.
Appellant also argues the Board misapplied the legislative history of
N.J.S.A. 43:16A-10 because the statute's 1967 amendment did not narrow the
eligibility for accidental death benefits, but rather expanded eligibility by
eliminating the requirement that the accidental death occur before retirement
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and choosing language which no longer had a temporal limitation. However,
the legislative history shows otherwise.
A statute's legislative history is often "rich with clues as to the
interpretation of statutory language." TAC Assocs., 202 N.J. at 544.
"Furthermore, amendments carry 'great weight' in determining the intention of
the original statute." Ibid. (quoting Edwards v. Mayor & Council of Moonachie,
3 N.J. 17, 24-25 (1949)). An examination of the legislative history of N.J.S.A.
43:16A-10, however, does not reveal an intent to reject the ordinary meaning of
the present statute's plain language. See ibid. ("We find nothing in th[e] history
that would warrant us to reject the ordinary meaning . . . in favor of the far-
fetched interpretations forged by [plaintiff].").
In 1964, N.J.S.A. 43:16A-10(1) provided as follows:
Upon the accidental death of a member before
retirement; provided, that evidence shall be submitted
to the board of trustees justifying the determination that
the natural and proximate cause of such death was an
accident met in the actual performance of duty, within
[five] years preceding the date of such death, and that
such death was not the result of the member's willful
negligence, an accidental death benefit shall be
payable.
[L. 1964, c. 241, § 7 (emphasis added).]
A 1967 amendment provided as follows:
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Upon the death of a member in active service as a result
of an accident met in the actual performance of duty at
some definite time and place, and such death was not
the result of the member's willful negligence, an
accidental death benefit shall be payable . . . .
[L. 1967, c. 250, § 10 (emphasis added).]
Although "amendments carry 'great weight' in determining the intention
of the original statute[,]" TAC Assocs., 202 N.J. at 542, the Legislature’s intent
is not clear from the 1967 amendment alone. See Klumb, 199 N.J. at 28 ("We
are no more enlightened regarding the intent of the Legislature by the language
changes in the statute . . . than by the words of the statute itself."). Thus,
"discerning the meaning of the statute requires further inquiry into other
extrinsic evidence." Ibid.While the Legislature has not amended the language at issue since 1967,
the subsequent legislative history of the statute is instructive in determining the
Legislature’s intent. Notably, the Legislature has often reinforced the
requirement that accidental death benefits are payable only when a PFRS
member’s death occurs while in active service.
In 2002, the Legislature amended N.J.S.A. 43:16A-10 to allow a member's
surviving spouse to remarry without losing accidental death benefits. In its
statement to the bill, which proposed this amendment, the Senate State
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Government Committee noted that prior to the amendment, "the surviving
spouse of a member of the [PFRS] . . . who died in active service as a result of
accident met in the actual performance of duty lo[st] the accidental death benefit
pension if he or she remarrie[d]." S. Comm. Statement to S.B. 1434 (June 6,
2002) (emphasis added). Similarly, in support of a 2008 amendment, which
extended accidental death benefits to members of other public retirement
systems, the Senate Budget and Appropriations Committee noted:
[a]s amended, the bill provides the same benefits to the
survivors of an active member the [PFRS], the State
Police Retirement System (SPRS), the Public
Employees' Retirement System (PERS), or the
Teachers' Pension and Annuity Fund (TPAF), who dies
as a result of service in either the reserve component of
the Armed Forces of the United State or the National
Guard while on federal active duty as are currently
provided to an active member of the respective
retirement system, who dies as a result of an accident
sustained in the actual performance of duty.
[Assemb. Comm. Statement to Assemb. B. 770 (Oct. 6,
2008) (emphasis added).]
The Committee Statement further noted that "[c]urrent law provides death
benefits and other increased benefits to survivors of PFRS . . . members who die
while active members as a result of an accident met in the actual performance
of duty." Ibid. (emphasis added).
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In 2016, after Rogow's death, the Legislature further amended N.J.S.A.
43:16A-10 by increasing the accidental death benefit to seventy percent of final
compensation for a member's surviving child or children. S. 2061 (2016). In
doing so, the Legislature explicitly noted that the bill "enhances benefits
provided in . . . the PFRS upon the accidental death of a member in active
service." Legis. Fiscal Estimate to S.B. 2061 (June 22, 2016) (emphasis added).
In 1967, the Legislature changed the introductory language of N.J.S.A.
43:16A-10(1) from "[u]pon the accidental death of a member before retirement"
to "[u]pon the death of a member in active service." Although it is initially
unclear whether the Legislature intended this amendment to narrow or broaden
the requirements for accidental death benefits, the subsequent legislative history
clearly indicates the Legislature's intent to limit the statute's reach to members
who were in active service at the time of their death.
Furthermore, the legislative history contains nothing from which we can
conclude that the Legislature sought to permit payment of accidental death
benefits to a PFRS member who had retired and was receiving an accidental
disability retirement allowance at the time of his death. Had the Legislature
intended to do so, it would have omitted the language providing that such
benefits be payable "[u]pon the death of a member in active service[.]" N.J.S.A.
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43:16A-10(1) (emphasis added); see Bermudez, 439 N.J. Super. at 56 (noting if
the Legislature intended to apply the requirements of the Nursing Home Act to
other institutions, it would have used a more inclusive term in the title and text
of the legislation).
Accordingly, we conclude the Board properly determined that Rogow was
ineligible for accidental death benefits because he was not a member in active
service at the time of his death, as required by N.J.S.A. 43:16A-10, but was
retired and receiving an accidental disability retirement allowance. The
legislative history supports the Board's decision.
IV.
Appellant contends the Board's decision was arbitrary, capricious and
unreasonable because the Board failed to follow its own precedent in Lake v.
Police & Firemen's Retirement System, 2005 N.J. AGEN LEXIS 961 (Dec. 30,
2005) and Estock v. Board of Trsustees, Police & Firemen's Retirement System,
2005 N.J. AGEN LEXIS 237 (May 12, 2005), which did not require that the
death of a PFRS member occur in active service.4 Appellant misinterprets these
cases, and they are not binding on us.
4
We decline to address appellant's argument that, for good cause shown, the
Board has the authority to alter or change a retirement classification from
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Unlike here, in Lake, the Board denied a request to change a police
officer’s retirement application from an ordinary disability retirement allowance
to accidental death benefits under N.J.S.A. 43:16A-10, finding that the officer’s
widow did not timely file her request and her husband’s death was not caused
by a traumatic event "such that accidental benefits are available under N.J.S.A.
43:16A-10." Lake, 2005 N.J. AGEN LEXIS at *7-8, 13. Similarly, in Estock,
the Board denied a widow’s request to change her husband’s special retirement
allowance to accidental death benefits, finding that the widow's request was
untimely. Estock, 2005 N.J. AGEN LEXIS 237 at *4.
Appellant argues that Lake and Estock support her interpretation of
N.J.S.A. 43:16A-10(1) because, in those cases, the Board did not address
whether the members were in active service at the time of their death. However,
the Board’s failure to address this issue is not determinative of whether or not
the statute requires the same.
Appellant's argument implies that if the Board does not address every
possible ground for denying a request, any grounds for denial that are not
addressed simply do not exist. However, the Board's decision not to address
accidental disability to accidental death after the disability determination has
been made. The Board's final agency decision was not based on appellant's
failure to show good cause.
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every possible reason for denying a request to change a member's retirement
application does not imply that additional issues do not exist or that there are no
additional grounds on which to deny the request. In fact, in Estock, the Board
explicitly noted that it was unnecessary to fully explore or address all of the
issues raised in the matter because "a decision on the merits is plain" and it was
therefore unnecessary to explore additional grounds for dismissal. Estock, 2005
N.J. AGEN LEXIS 237 at *5. The Board in Estock and Lake therefore did not
suggest that accidental death benefits are not dependent on a member's death
occurring while in active service. Rather, the Board merely denied the requests
on other grounds.
Moreover, despite appellant's claim to the contrary, the Board's precedent
actually supports its interpretation of N.J.S.A. 43:16A-10(1). In Goode v. Board
of Trustees, Police & Firemen's Retirement System, No A-4454-08 (App. Div.
June 7, 2010) (slip op. at. at 6), we upheld the Board's determination that the
petitioner was not entitled to death benefits under N.J.S.A. 43:16A-9 because
her husband was not in active service at the time of his death and "consequently
the only pension benefits payable from his PFRS account are his aggregate
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contributions owed to his beneficiary record." 5 Although the Board made this
determination pursuant to N.J.S.A. 43:16A-9, the Board and the court relied on
the language of the statute which provides that death benefits are payable
"[u]pon the receipt of proper proof of the death of a member in active service
. . . ." Id. at 4.
In Schott v. Board of Trustees, Police & Firemen’s Retirement System, 94
N.J.A.R.2d (TYP) 227, the Board denied a former police officer’s application
for an ordinary disability retirement allowance, finding he was no longer "in
service" when he filed his application, as required by N.J.S.A. 43:16A-6(1). The
statute provides that "[u]pon the written application by a member in service . . .
any member, under [fifty-five] years of age, who has had [five] or more years
of creditable service may be retired on an ordinary disability retirement . . . ."
N.J.S.A. 43:16A-6(1) (emphasis added.) The Board rejected the officer's
application because he filed it five months after his employment had been
terminated. Schott, 94 N.J.A.R.2d at 4-5.
Although the Board did not make its determination in Schott pursuant to
N.J.S.A. 43:16A-10, its decision supports the Board's statutory interpretation in
5
Although the case is unpublished, and therefore not binding, it is instructive
in reviewing the Board's prior determinations of similar issues. See Trinity
Cemetery Ass'n v. Twp. of Wall, 170 N.J. 39, 48 (2001); R. 1:36-3.
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this matter because it relates to language that is almost identical to the language
in N.J.S.A. 43:16A-10(1). "Indeed, when cognate laws are passed, they should
be viewed as part of a consistent plan unless they are 'expressly or impliedly
incompatible.'" Klumb, 199 N.J. at 32 (quoting Jacobs v. N.J. State Highway
Auth., 54 N.J. 393, 401 (1969)). "The statute should be considered in light of
other statutory provisions and the nature of the subject matter." G.S. v. Dep't of
Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 172 (1999).
Furthermore, "the pension statutes are to be construed as part of a harmonious
whole[.]" Klumb, 199 N.J. at 33.
The Board's precedent supports its interpretation of N.J.S.A. 43:16A-
10(1). Accordingly, the Board's decision was not arbitrary, capricious and
unreasonable and must be upheld.
To the extent we have not specifically addressed appellant's remaining
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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