SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-0522-97T2
ROBERT C. BROWN,
Plaintiff/Appellant,
v.
TOWNSHIP OF OLD BRIDGE,
Defendant/Respondent.
___________________________________________________________________
Argued: February 10, 1999 - Decided: March 19, 1999
Before Judges King, Wallace and Newman.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County.
Robert C. Brown, appellant, argued the cause
pro se (Ann K. Brown, attorney, on the brief).
Robert T. Clarke argued the cause for
respondent (Apruzzese, McDermott, Mastro &
Murphy, attorneys; Mr. Clarke, of counsel
and on the brief; Robert J. Merryman, on the
brief).
The opinion of the court was delivered by
WALLACE, JR., J.A.D.
This is the third appeal in this case. Plaintiff Robert C.
Brown is a retired police officer of defendant Township of Old
Bridge, (referred to as defendant or Township). Plaintiff
contends: (1) defendant was barred from relitigating plaintiff's
right to receive the collectively bargained long-term disability
insurance benefits after a 1980 judicially enforced arbitration
award recognized those benefits as binding against defendant; (2)
the trial judge erred in reducing plaintiff's special compensation
in the form of long-term disability payments by the amount of his
PFRS retirement allowance because he erred in reading N.J.S.A.
40A:14-154 and the PFRS provision, N.J.S.A. 43:16A-7 "in para
materia"; (3) the application of N.J.S.A. 40A:14-154, constitutes
an improper attachment, garnishment or assignment of plaintiff's
special compensation in the form of long-term disability benefits;
(4) N.J.S.A. 40A:14-154 is unconstitutional; (5) the trial judge
erred in including cost of living adjustments (COLAs) in the
calculation of plaintiff's special compensation in the form of
long-term disability benefits; and (6) the trial judge erred in
denying his motion to amend the complaint to include a claim for an
injury plaintiff sustained in 1983. We affirm.
Plaintiff is a retired police officer of Township. He was employed by defendant from March 17, 1975 to August 31, 1988. Pursuant to the collective bargaining agreements negotiated by the Police Benevolent Association (PBA), plaintiff, over the years, received various benefits including long-term disability.
On September 28, 1981, plaintiff was shot in the line of duty. He returned to work, but continued to have recurring physical and psychological problems as a result of the incident. Plaintiff sought a disability retirement. On September 22, 1986, he met with the Township Council to discuss his eligibility for disability retirement benefits. Following this meeting, the Council passed a resolution providing in part:
WHEREAS, the list of requests
from Patrolman Brown are as follows:
1. Full payment of salary until
eligible for payments from the State
Pension System.
2. Calculation of regular salary/base
pay to conform with the same formula
the Township of Old Bridge uses to
make pension deductions.
3. Long-Term Disability Benefits
pursuant to Article XII Sub. Sec. C
of the Agreement between the
Township of Old Bridge and the
PBA Local No. 127.
4. Removal of the AEIF [Annual Earned
Income Formula] provision contained
in Article XII Sec. D, since the
traumatic injury occurred during
1981.
5. Payment of 100" of all health
benefits at the discretion of the
Council, pursuant to N.J.S.A.
40A:10-23.
6. Payment of all accrued vacation,
sick time, holiday and ETO time.
7. Payment of a $25,000 term life
insurance policy, pursuant to
Article XII Sub. Sec. H of the
Agreement between the Township of
Old Bridge and PBA Local No. 127.
NOW, THEREFORE, BE IT RESOLVED by the
Township Council of the Township of Old Bridge
that the Township Council accepts the proposal
made by Patrolman Robert Brown for a
Disability Retirement, and specifically grants
the request for the seven (7) items enumerated
above, with the condition that Patrolman
Robert Brown voluntarily submit the pension
papers to the State of New Jersey on or before
September 28, 1986, and, on the condition,
that all accrued vacation, sick, holiday and
ETO time be verified by the Township
Administration.
In September 1986, plaintiff applied for a disability pension
with PFRS. In July 1988, PFRS approved plaintiff's application,
retroactive to April 1, 1987. The amount of the pension, $14,615
per year was based on plaintiff's 1981 salary, the year plaintiff's
disability arose.
Plaintiff retired from the police department on September 1,
1988. On September 19, 1988, he received his accumulated vacation
and sick time benefits but not his other benefits. Plaintiff
requested that defendant pay him his disability benefits.
Defendant failed to pay these benefits.
As a result, on December 16, 1988, plaintiff filed a complaint
against defendant seeking $2,224 per-month or $26,700 per-year
(two-thirds of plaintiff's 1988 salary ($40,030 x 2/3 =
$26,686.67)) in long-term disability insurance, and payment of his
health insurance deductible pursuant to Article XII, section C of
the then existing collective bargaining agreement. Article XII,
section C of the then existing agreement, provided:
All employees will be covered by long-term
disability insurance. This insurance would
supplement any other benefits so that
employees with long-term illnesses or serious
accident [sic] (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 life for [sic] accident.
Defendant filed an answer and separate defenses. Thereafter,
defendant issued plaintiff $3,021.13 in long-term disability for
the months of October, November and December 1988 ($26,700
$14,615 (PFRS disability pension) = $12,085 per year or $1,007 per
month).See footnote 1 Plaintiff refused to accept that check because he
believed he was entitled to a greater amount.
Plaintiff moved and defendant cross-moved for summary
judgment. On July 3, 1991, partial summary judgment was granted in
plaintiff's favor. The judge determined that:
the Old Bridge Township Council Resolution [in
which defendant had agreed to pay plaintiff
long-term disability] of September 22, 1986
("Resolution") is a valid and enforceable
agreement between [plaintiff] and [defendant].
[Plaintiff] is entitled to enforce the terms
of the Resolution.
The court denied defendant's cross-motion and scheduled a trial on
damages. Following trial, the judge awarded plaintiff $75,616,
representing past-due, long-term disability benefits from October
1, 1988 to July 1, 1991, and $10,961.52 in prejudgment interest.
Plaintiff was also awarded $2,224 per month in long-term disability
payments, beginning August 1, 1991, and payable for the remainder
of his life. The judge held that plaintiff was not entitled to
payment by defendant of his health insurance deductible or counsel
fees.
The Township appealed, and for the first time argued that the
September 22, 1986, resolution was unenforceable because it was
preempted by N.J.S.A. 40A:14-154. This statute 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).]
Plaintiff filed a cross-appeal from the denial of the payment of
his health insurance deductible and counsel fees. In an
unpublished opinion, we held in Brown v. Township of Old Bridge (A-6352-90T2 (App. Div.) (Brown I), certif. denied,
133 N.J. 440
(1993) that N.J.S.A. 40A:14-154 preempted the field of "special
compensation" in the form of supplemental disability payments and
thus, the September 22, 1986 resolution was unenforceable because
such a benefit could only be awarded by ordinance. Moreover, the
amount awarded exceeded the limits authorized by N.J.S.A. 40A:14-154, or the amount of plaintiff's salary at the time of the injury.
Ibid. That is, plaintiff had earned $21,924 in 1981, the year of
his injury, and was awarded $26,700 per year in special
compensation in the form of long-term disability and $14,616 per
year in PFRS disability pension, for a total of $41,316. This was
$19,393 more than his salary at the time of the injury. Thus, we
reversed the partial summary judgment and award of damages in favor
of plaintiff and remanded for further proceedings in accordance
with our opinion. Plaintiff's petition for certification to the
Supreme Court was denied. Brown v. Township of Old Bridge,
133 N.J. 440 (1993).
At the remand hearing, plaintiff argued that Brown I had only
decided that the September 22, 1986, resolution was preempted by
N.J.S.A. 40A:14-154, and thus, he was still entitled to special
compensation in the form of long-term disability benefits under the
collective bargaining agreement. Defendant argued that the
decision preempted any action by a municipality, whether by
resolution or by collective bargaining. The trial judge recognized
that both its prior decision and our decision were limited to the
issue of whether plaintiff was entitled to long-term disability
benefits under the resolution. Nevertheless, the judge held that
N.J.S.A. 40A:14-154 also preempted an award of such benefits
pursuant to the collective bargaining agreement. The judge denied
plaintiff's motion to amend his complaint to include a new party,
the local PBA, and a new claim under the Americans With
Disabilities Act (ADA),
42 U.S.C.A.
§§12101 to 12213 (1997). An
order was entered dismissing plaintiff's complaint on that same
date.
Plaintiff filed his second appeal. During oral argument in
Brown v. Township of Old Bridge (A-1551-93T5) (App. Div. 1996)
(Brown II), certif. denied,
144 N.J. 587 (1996), we asked the
parties to supplement the record with copies of relevant collective
bargaining agreements and insurance policies. A second oral
argument was conducted on November 1, 1995. In Brown II, we held
that N.J.S.A. 40A:14-154 applied "to all municipal benefits for
permanent disability given to police officers whether pursuant to
ordinance or by negotiated agreement." Nevertheless, we found that
"[i]n light of the history of the negotiated provisions addressing
disability and the reliance of the members of the union since at
least the late 1970's, nullification of the negotiated disability
benefits here would be unfair." Consequently, we held 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:14-154, that such
benefits plus any pension paid and any compensation benefits "shall
not exceed plaintiff's salary at the time of the injury."
We declined to address plaintiff's argument that N.J.S.A.
40A:14-154 was unconstitutional because plaintiff had failed to
raise the argument in Brown I or on remand. Ibid. In addition, we
concluded that "[t]he failure to join the PBA as a party below did
not affect the trial judge's authority to adjudicate the dispute
between the parties present." Further, we held the trial judge did
not abuse his discretion in denying plaintiff's motion to amend his
complaint which motion was filed after the appeal and remand.
We denied both parties' motion for reconsideration and the
Supreme Court denied certification. Brown v. Township of Old
Bridge,
144 N.J. 587 (1996).
On remand, the trial judge held a conference on September 5,
1996. He listed the issues raised by the parties at the conference
as follows:
1. Does the collective bargaining
agreement require that plaintiff's
disability payments be off-set by
his pension payments?
2. Do the provisions of R.S. 40A:14-154
(Special Compensation statute) apply
providing a ceiling for the
disability benefits plaintiff may
receive?
3. Are the provisions of R.S. 40A:14-154 constitutional as they apply to
this plaintiff?
4. In applying R.S. 40A:14-154, is the
date of injury to be 1981 or 1983?
5. In applying R.S. 40A:14-154, what
pension payment is to be considered?
The original pension payment
plaintiff received or his pension
payments as enhanced by cost of
living increases?
6. In applying R.S. 40A:14-154, how
does the Court factor any worker's
compensation award the plaintiff
received?
7. Do the provisions of the collective
bargaining agreement requiring that
earned income be deducted from any
permanent disability benefits to
which plaintiff is entitled apply in
this situation?
In November 1996, plaintiff moved to amend his pleadings to
add a claim for an injury sustained in 1983, thereby changing the
date from 1981 to 1983, which would have had the effect of
increasing the ceiling level for calculation of special
compensation. Plaintiff alleged that on October 31, 1983, he
dislocated his right shoulder while on duty and as a result was
unable to return to full-time employment. He also alleged he had
received a worker's compensation award dated October 2, 1986, for
both the 1981 and the 1983 injury.
Following oral argument the judge rejected plaintiff's
constitutional challenge to N.J.S.A. 40A:14-154, and his motion to
amend the pleadings, finding both untimely and unsupported by the
evidence. In determining the amount of plaintiff's special
compensation in the form of long-term disability payments, the
judge held that plaintiff's salary in 1981, the time of the injury,
would be used to set the ceiling level. Further, the judge held
that plaintiff's special compensation plus any PFRS State
retirement benefits, including any COLAs, could not exceed his 1981
salary. The judge asked the parties to submit information
regarding plaintiff's 1981 salary and the amount of retirement
benefits he had received in order to calculate the amount of
damages. By letter dated May 1, 1997, the judge concluded that
defendant owed plaintiff $50,193.77 for past-due permanent
disability benefits and $14,587.68 for pre-judgment interest.
Further, plaintiff was awarded future long-term disability payments
to be calculated in accordance with the following formula, 1981
salary minus PFRS, minus COLAs equals Special Compensation. This
appeal followed.
Plaintiff argues that defendant was barred from relitigating his right to receive the collectively bargained long-term disability insurance benefits after a 1980 judicially enforced arbitration award recognized those benefits as binding against defendant. Plaintiff contends that Policeman's Benevolent Ass'n, Local 292 v. Borough of North Haledon, 305 N.J. Super. 454 (App. Div. 1997), which was decided after Brown II, resolves this issue in his favor.
The arbitration award resulted from a June 1980 joint grievance of Local PBA 127 and Patrolman Robert Stawicki (Stawicki), filed against defendant because it had denied Stawicki's claim for long-term disability under the collective bargaining agreement. Article XII, section C of the collective bargaining agreement effective January 1, 1978 to December 31, 1980, which is substantially identical to the agreement effective when plaintiff was injured, provided:
All employees will be covered by long-term disability insurance. This insurance would supplement any other benefits so that employees with long-term illnesses or serious accident [sic] (whether job connected or not) would receive a total of Two-thirds [sic] their regular pay, after a waiting period of thirty (30) days. Such payments would continue until age 65 for illness and/or life for accident.
The arbitrator held that defendant had violated Article XII,
section C by failing to provide Stawicki with long-term disability
benefits. The arbitrator found the long-term disability payment
was intended to augment state disability and worker's compensation
benefits "so that employees would receive 2/3 their regular pay."
Thus, Stawicki was entitled to two-thirds of his salary less any
worker's compensation or State insurance benefits. The arbitrator
did not refer to N.J.S.A. 40A:14-154. The arbitrator's decision
was confirmed by the Superior Court on October 1, 1980.
In his complaint for long-term disability payments, plaintiff
referred to Stawicki's October 1, 1980 arbitration award.
Plaintiff also raised in Brown II whether defendant was "barred
through principles of res judicata and estoppel from challenging
[his] right to receive long-term disability benefits awarded under
the collective bargaining agreement after a judicially-enforced
arbitration award recognized those benefits as binding against the
township." We rejected this argument in Brown II.
"Under the law-of-the-case doctrine, decisions of law made in
a case should be respected by all other lower or equal courts
during the pendency of that case." Lanzet v. Greenberg,
126 N.J. 168, 192 (1991). The law-of-the-case doctrine "most commonly
applies to the binding nature of appellate decisions upon a trial
court if the matter is remanded for further proceedings, or upon a
different appellate panel which may be asked to reconsider the same
issue in a subsequent appeal." Slowinski v. Valley Nat'l Bank,
264 N.J. Super. 172, 179 (App. Div. 1993) (citing State v. Hale,
127 N.J. Super. 407, 410-11 (App. Div. 1974)). It is "restricted to
preventing relitigation of the same issue in the same suit."
Slowinski, supra, 264 N.J. Super. at 180-81 (emphasis omitted).
Thus, "where there is an unreversed decision of a question of law
or fact made during the course of litigation, such decision settles
that question for all subsequent stages of the suit." Bahrle v.
Exxon Corp.,
279 N.J. Super. 5, 21 (App. Div. 1995), aff'd,
145 N.J. 144 (1996) (citing Slowinski, supra, 264 N.J. Super. at 179).
However, the law-of-the-case doctrine, unlike the doctrine of res
judicata, operates as a discretionary rule of practice and not one
of law. Slowinski, supra, 264 N.J. Super. at 179 (citing State v.
Hale, supra, 127 N.J. Super. at 410-11). As noted above, in Brown
II we found "no merit" to the arbitration argument. Consistent
with the law-of-the-case principles this issue has been decided and
we need not address it here.
Moreover, our recent decision in Policeman's Benevolent Ass'n,
Local 292, supra, 305 N.J. Super. at 454, does not warrant
relitigation of this issue. In that case we held that a public-sector arbitration case was governed by the Arbitration Act,
N.J.S.A. 2A:24-1 to -11, and thus, a prevailing party seeking
judicial confirmation of an arbitration award was bound by the
three-month period of limitations set forth in N.J.S.A. 2A:24-7.See footnote 2
That case does not stand for the proposition that defendant should
be bound by the prior arbitration award in favor of Stawicki,
particularly since the arbitrator did not consider the effect of
N.J.S.A. 40A:14-154 on the payment of long-term disability
insurance.
Even if we consider the merits of plaintiff's argument, we
reach the same result. "In appropriate circumstances, arbitration
awards may be given collateral estoppel effect in subsequent
judicial proceedings." Konieczny v. Micciche,
305 N.J. Super. 375,
384 (App. Div. 1997); Nogue v. Estate of Santiago,
224 N.J. Super. 383, 385-86 (App. Div. 1988). But here the arbitration award in
favor of Stawicki cannot be binding upon defendant because statutes
covering public employee benefits, in this case N.J.S.A. 40A:14-154, cannot "be contravened by negotiated agreement." State v.
State Supervisory Employees Ass'n,
78 N.J. 54, 80 (1978). "[W]here
a statute or regulation sets a maximum level of rights or benefits
for employees on a particular term and condition of employment, no
proposal to affect that maximum is negotiable nor would any
contractual provision purporting to do so be enforceable." Id. at
81-82.
Here N.J.S.A. 40A:14-154 set a maximum level of special
compensation which when combined with the pension award and
worker's compensation benefits cannot exceed the retired officer's
salary at the time of the injury. In contrast, the collectively
bargained for agreement provided that a retired officer was
entitled to long-term disability equal to two-thirds of his or her
regular pay at the time of retirement, and supplemental to other
benefits. Thus, the collective bargaining agreement which provided
for benefits in excess of the statutory limits of N.J.S.A. 40:A:14-154 is not enforceable. Under these circumstances, the
arbitrator's award in favor of Stawicki may not be given collateral
estoppel effect in this proceeding.
Plaintiff next argues the trial judge erred in reading N.J.S.A. 40A:14-154 and the PFRS provision, N.J.S.A. 43:16A-7 "in para materia" and therefore the term "pension" in N.J.S.A. 40A:14-154 does not include a "retirement allowance" under N.J.S.A. 43:16A-7. Thus, he argues the trial judge erred in reducing his special compensation in the form of long-term disability pursuant to N.J.S.A. 40A:14-154, by the amount of his PFRS "retirement allowance" of $14,615 payable pursuant to N.J.S.A. 43:16A-7. Plaintiff concedes that we rejected this argument in his previous appeal, but, nevertheless he contends that is not a bar from relitigating this issue again in light of the recent decision in Wolfersberger v. Borough of Point Pleasant Beach, 305 N.J. Super. 446 (App. Div. 1996), aff'd, 152 N.J. 40 (1997).
As noted above, N.J.S.A. 40A:14-154 provides in part that "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." (emphasis added). Municipalities are authorized to award special compensation pursuant to N.J.S.A. 40A:14-27, which provides:
If a member or officer of the paid or part-paid fire department or force is permanently disabled from injuries received while in the performance of his duties and the chief or official in charge of such fire 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.
The PFRS provision for guaranteed retirement benefits for permanent and total disability is set forth in N.J.S.A. 43:16A-7:
(1) Upon the written application by a member in service, by one acting in his behalf or by his employer any member may be retired on an accidental disability retirement allowance; provided, that the medical board, after a medical examination of such member, shall certify that the member is permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties and that such disability was not the result of the member's willful negligence and that such member is mentally or physically incapacitated for the performance of his usual duty and of any other available duty in the department which his employer is willing to assign to him. The application to accomplish such retirement must be filed within five years of the original traumatic event, but the board of trustees may consider an application filed after the five-year period if it can be factually demonstrated to the satisfaction of the board of trustees that the disability is due to the accident and the filing was not accomplished within the five-year period due to a delayed manifestation of the disability or to other circumstances beyond the control of the member.
(2) 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 2/3 of the member's actual annual
compensation for which contributions
were 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.
[(emphasis added).]
Statutes which deal with the same matter or subject and which
seek to achieve the same overall legislative purpose should be read
"in pari materia." Mimkon v. Ford,
66 N.J. 426, 433 (1975) (citing
Gualano v. Board of School Estimate of Elizabeth School Dist.,
72 N.J. Super. 7, 23 (Law Div. 1962), aff'd,
39 N.J. 300 (1963), and
Clifton v. Passaic Cty. Bd. of Taxation,
28 N.J. 411, 421 (1958)).
"This rule of statutory construction derives from the reasonable
presumption that legislators are aware of relevant prior
legislation." Mimkon, supra, 66 N.J. at 433 (citing State v.
Federanko,
26 N.J. 119, 129 (1958)). "While the rule most
obviously applies when the statutes in question were enacted during
the same session or went into effect at the same time, . . . or
where they make specific reference to one another, . . . it may
appropriately be applied even when the statutes were adopted at
different times and make no reference to each other." Id. at 434
(citing Fried v. Kervick,
34 N.J. 68, 70-71 (1961); State v.
Wasserman,
75 N.J. Super. 480, 487-88 (App. Div. 1962), aff'd,
39 N.J. 516 (1963); 2A Sutherland, Statutory Construction § 51.03
(Sands ed. 1973)). "Statutes in pari materia are to be construed
together when helpful in resolving doubts or uncertainties and the
ascertainment of legislative intent." Camden v. South Jersey Port
Corp.,
312 N.J. Super. 387, 398 (App. Div. 1998), certif. denied,
___ N.J. ___ (No. 46,
459 Nov. 5, 1998).
In Brown II, we reviewed the legislative history of N.J.S.A.
40A:14-154 and N.J.S.A. 43:16A-7. We noted that "PFRS was
established in 1944 to provide for retirement benefits for police
and firemen," citing Seire v. Police & Fire Pension Comm'n of
Orange,
6 N.J. 586, 591 (1951) ("By the 1944 act, the legislature
created a statewide pension system for full-time policemen and
firemen designed to ensure the uniform protection of all such
public officers through the medium of pensions payable from a fund
maintained upon a sound actuarial basis"). We explained that after
the enactment of PFRS, then-Governor Driscoll vetoed several bills
proposed to supplement the benefits received under the State
retirement system on the ground that the State should seek to
strengthen the State program rather than authorizing independent
municipal action, which had apparently failed in the past and had
required State intervention. The Governor's veto message had also
expressed concern "with any form of municipal benefit that
overlapped State retirement benefits for permanent disability."
In 1948, the Governor signed into law N.J.S.A. 40:47-12.10 and .11
(L.1948, c. 304), the predecessor to N.J.S.A. 40A:14-154,
"authorizing municipalities by ordinance to `make an award of
damages' for permanent disability provided that the award plus any
pension and worker's compensation paid did not exceed the
employee's wages while employed." Although we did not specifically
refer to the different terms used in N.J.S.A. 40A:14-154 (pension)
and N.J.S.A. 43:16A-7 (retirement allowance), we concluded in Brown
II that pursuant to N.J.S.A. 40A:14-154, "compensation for
permanent disability received from the municipality, plus State
retirement benefits, may not exceed the employee's salary at the
time of injury." Thus, in Brown II, we held that plaintiff's State
PFRS "retirement allowance" constituted a pension for purposes of
the calculation and must be considered in awarding special
compensation pursuant to N.J.S.A. 40A:14-154.
Moreover, Wolfersberger v. Borough of Point Pleasant Beach,
supra, 152 N.J. at 40, does not support plaintiff's argument that
we should permit relitigation of this issue. In Wolfersberger,
plaintiff, a policeman, retired after twenty-three years of actual
service with the defendant. 305 N.J. Super. at 448. Plaintiff had
served previously in the armed forces and was able to purchase two
years of pension service based on that experience, thereby
crediting him with twenty-five years of service and qualifying him
for retirement. Ibid. See N.J.S.A. 43:16A-11.11 (Purchase of
service credit for civilian employment or U.S. military service by
members of police or firemen's retirement system). On the date of
his retirement, N.J.S.A. 40A:10-23 (Payment of premiums after
retirement) provided that "[t]he employer may, in its discretion,
assume the entire cost of such coverage and pay all of the premiums
for employees who have retired on a disability pension or after 25
years' or more service with the employer . . . ." Plaintiff
maintained he had twenty-five years of service because N.J.S.A.
40A:10-23 and N.J.S.A. 43:16A-11.11 "are `in pari materia' and,
therefore, `service' in both statutes should be construed to
include credited service." Id. at 449. We disagreed and held that
plaintiff's "in pari materia argument disregards the significant
differences in the language, purposes, and legislative history of
the two statutes upon which he relies." Ibid. We pointed out that
"plaintiff's purchased credits satisfy the prerequisites for a
`special retirement' pension pursuant to N.J.S.A. 43:16A-11.1
because that statute defines eligibility for such a pension in
terms of `creditable service.'" Id. at 450. However, we found "no
comparable statutory provisions authorize counting `creditable' or
credited service toward the 25 years of service called for by
N.J.S.A. 40A:10-23 as it existed when [the plaintiff] retired."
Ibid. Thus, we interpreted N.J.S.A. 40A:10-23 to require twenty-five years of actual service. Id. at 452. The Supreme Court
affirmed substantially for the reasons expressed in our opinion.
Wolfersberger v. Borough of Point Pleasant Beach,
152 N.J. 40
(1997).
Wolfersberger did not address the relationship between the
relevant statutes in this case, N.J.S.A. 40A:14-154 and N.J.S.A.
43:16A-7, and is distinguishable on the facts. Beyond that we are
in agreement with the trial judge's conclusion that the terms
"pension paid" in N.J.S.A. 40A:14-154 and "retirement allowance" in
N.J.S.A. 43:16A-7 represent a "distinction without a difference."
"[R]etirement allowance" is defined in N.J.S.A. 43:16A-1 as a
"pension plus the annuity" and a "pension" is defined in N.J.S.A.
43:1-6A-1 as "payments for life derived from contributions by the
employer." In our view, distinguishing "pensions" from "retirement
allowances" would defeat the purpose of N.J.S.A. 40A:14-154, to
limit special compensation. Therefore, we conclude the term
"pension" in N.J.S.A. 40A:14-154 includes a PFRS "retirement
allowance." We agree with the trial judge's reasoning that:
The obvious purpose of the Special
Compensation Act is to assure that a disabled
officer will not earn more money by not
working than he or she did working as a police
officer or fireman. Therefore, it really
makes no difference whether the payments are
styled as pension payments or retirement
payments and so on in the context and intent
of the statute.
Plaintiff argues for the first time on appeal that application of N.J.S.A. 40A:14-154 constitutes an improper attachment, garnishment or assignment of his long-term disability benefits.
"It is a well-settled principle that we will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available `unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Skripek v. Bergamo, 200 N.J. Super. 620, 629 (App. Div.) (quoting Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973)), certif. denied, 102 N.J. 303 (1985); see also Chalef v. Ryerson, 277 N.J. Super. 22, 28-29 (App. Div. 1994); Hamilton, Johnston, & Co., Inc. v. Johnston, 256 N.J. Super. 657, 667 (App. Div.), certif. denied, 130 N.J. 595 (1992); Saul v. Midlantic Nat. Bank/South, 240 N.J. Super. 62, 82 (App. Div.), certif. denied, 122 N.J. 319 (1990).
Despite the opportunity to do so, plaintiff did not raise this issue below. We find no matter of great public interest to warrant our consideration of this argument. Moreover, plaintiff was ultimately awarded benefits within the limits of N.J.S.A. 40A:14-154. Any reduction in the amount of benefits plaintiff had initially been awarded in the September 22, 1986 resolution was based on our interpretation and application of N.J.S.A. 40A:14-154, and not as a result of a garnishment, attachment or assignment, in violation of N.J.S.A. 17:18-12, N.J.S.A. 17B:24-8, and N.J.S.A. 17B:24-9.
Plaintiff next argues that N.J.S.A. 40A:14-154 is unconstitutional.See footnote 3 On remand he raised this argument before the trial judge, but the judge concluded that based upon our decision in Brown II it would be "inappropriate" for him to address the constitutionality issue "at this late date." As plaintiff raised this issue below, we will consider his arguments addressed to the constitutionality of N.J.S.A. 40A:14-154.
Initially, we state the general guiding principles in determining constitutionality. "Statutes are presumed to be constitutional." State v. One 1990 Honda Accord, 154 N.J. 373, 377 (1998); General Motors Corp. v. City of Linden, 150 N.J. 522, 532 (1997). "The Court will invalidate a statute only if it is clearly repugnant to the Constitution." General Motors Corp., supra, 150 N.J. at 532 (citing Newark Superior Officers Ass'n v. City of Newark, 98 N.J. 212, 222 (1985)); Town of Secaucus v. Hudson County Bd. of Taxation, 133 N.J. 482, 492-93 (1993), cert. denied, 510 U.S. 1110, 114 S. Ct. 1050, 127 L. Ed.2d 372 (1994). The party "challenging the constitutionality of a statute bears the burden of establishing its unconstitutionality." State v. One 1990 Honda Accord, supra, 154 N.J. at 377; New Jersey Apartment Ass'n, Inc. v. Director, Div. of Local Gov' Services, Dept' of Community Affairs, 304 N.J. Super. 445, 454 (App. Div. 1997), certif. granted, 153 N.J. 403 (1998).
In analyzing the constitutionality of a statute "[o]ne of the basic guidelines . . . is `the presumption that the legislature acted with existing constitutional law in mind and intended the act to function in a constitutional manner.'" NYT Cable TV v. Homestead at Mansfield, Inc., 111 N.J. 21, 26 (1988) (citing State v. Profaci, 56 N.J. 346, 349 (1970)). "Where reasonable minds might differ as to the constitutionality of the means devised by the lawmakers to serve a public purpose, the courts should respectfully defer." D.J.L. v. Armour Pharm. Co., 307 N.J. Super. 61, 75 (Law Div. 1997) (citing Roe v. Kervick, 42 N.J. 191, 229 (1964)).
We turn now to plaintiff's various constitutional challenges. Plaintiff first argues that the application of N.J.S.A. 40A:14-154 to this case impaired his right to contract under the Federal Constitution. The United States Constitution, art I, § 10, provides that "[n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . . " The New Jersey Constitution, N.J. Const. art. IV, § 7, ¶ 3, provides a similar, parallel prohibition against the state legislature. The federal and state contract "constitutional provisions are construed and applied in the same way to provide the same protection." Matter of Recycling & Salvage Corp., 246 N.J. Super. 79, 100 (App. Div. 1991) (citing Fidelity Union Trust Co. v. New Jersey Highway Auth., 85 N.J. 277, 299-300, appeal dismissed, 454 U.S. 804, 102 S. Ct. 76, 70 L. Ed. 2d 73 (1981)). Thus, if the statute is valid under the federal contract clause, then it is valid under the parallel state provision as well. Matter of Recycling & Salvage Corp., supra, 246 N.J. Super. at 100.
The freedom against impairment of contracts under the Federal and State Constitutions however, is not absolute. "Although the language of the federal contract clause is absolute on its face, its prohibition against the impairment of contracts must be accommodated to the inherent police power of the states to safeguard the vital interests of their residents." Ibid. (citing Exxon Corp. v. Eagerton, 462 U.S. 176, 190, 103 S. Ct. 2296, 2305, 76 L. Ed.2d 497, 509-10 (1983). The constitutional guaranty of the freedom to contract does not deny "the legislative branch of the government authority to impose those reasonable safeguards which, in its judgment, are necessary to the public welfare." Fried v. Kervick, 34 N.J. 68, 83 (1961). "The liberty is protected against arbitrary restrictions, not prohibitions established in the interest of the community." Ibid; see also McLean v. State of Arkansas, 211 U.S. 539, 547, 29 S. Ct. 206, 208, 53 L. Ed. 315, 319 (1909) ("[T]he liberty of contract is not universal, and is subject to restrictions passed by the legislative branch of the government in the exercise of its power to protect the safety, health, and welfare of the people"). A state may thus
in the exercise of the police power, enact a statute to promote the public health, safety, morals or general welfare. Such a statute, because of retroactive application or otherwise, may diminish in value or totally destroy an individual's right, whether in property as such or arising out of contract, provided that the public interest to be promoted sufficiently outweighs in importance the private right which is impaired.
[Rothman v. Rothman,
65 N.J. 219, 225
(1974) (citations omitted).]
To be unconstitutional under the federal contract clause,
legislation:
(1) must substantially impair a contractual
relationship; (2) must lack a significant and
legitimate public purpose; and (3) must be
based upon unreasonable conditions and be
unrelated to appropriate governmental
objectives.
[State Farm Mut. Auto. Ins. Co. v. State,
124 N.J. 32, 64 (1991) (citing Energy Reserves
Group, Inc. v. Kansas Power & Light Co.,
459 U.S. 400, 411-12,
103 S. Ct. 697, 704-05,
74 L. Ed.2d 569, 580-81 (1983)).]
See also Oshkosh Waterworks Co. v. City of Oshkosh,
187 U.S. 437,
446,
23 S. Ct. 234, 237,
47 L. Ed. 249, 253 (1903) ("The contract
clause of the Constitution of the United States has reference only
to a statute of a state enacted after the making of the contract
whose obligation is alleged to have been impaired").
Applying these principles here, the Township's contractual
obligation to plaintiff did not arise until, at the earliest, 1981,
the date of plaintiff's injury, or more likely 1986, the year in
which the collective bargaining agreement applicable to this case
was effective and the Township's resolution was passed. We reject
plaintiff's contention that N.J.S.A. 40A:14-154 impaired an
existing contract right because the collective bargaining
agreement, was in effect when he was hired by defendant in 1975.
N.J.S.A. 40A:14-154 was enacted in 1971 before plaintiff was hired
as a policeman. Thus, plaintiff cannot establish that N.J.S.A.
40A:14-154 "substantially impaired" an existing contractual
relationship, since the contract was executed after the enactment
of the statute. In short, the application of N.J.S.A. 40A:14-154
to this case does not violate the federal or state constitutional
contract clause.
Plaintiff next contends N.J.S.A. 40A:14-154 violates the Equal
Protection Clause of the Fourteenth Amendment. This Amendment to
the United States Constitution provides that no state shall "deny
to any person within its jurisdiction the equal protection of the
laws." U.S. Const. amend. XIV, § 1. The Equal Protection Clause
"is essentially a direction that all persons similarly situated
should be treated alike." Cleburne v. Cleburne Living Center,
Inc.,
473 U.S. 432, 439,
105 S. Ct. 3249, 3254,
87 L. Ed.2d 313,
320 (1985).
Plaintiff does not contend the classification employed in
N.J.S.A. 40A:14-154 implicates any fundamental interest or suspect
class which would mandate the application of a strict scrutiny
standard of judicial review. Instead, he argues a distinction
between these police officers and other municipal police officers
and municipal employees lacks any rational relation to the
governmental objectives sought to be advanced by the statute.
Where neither a suspect classification or a fundamental right
is involved, we must uphold the constitutionality of the statute
"`so long as it bears a rational relation to some legitimate end.'"
Vacco v. Quill,
521 U.S 793, __,
117 S. Ct. 2293, 2297,
138 L.
Ed.2d 834, 841 (1997) (quoting Romer v. Evans,
517 U.S. 620, 631,
116 S. Ct 1620, 1627,
134 L. Ed.2d 855, 865 (1996)). See also
515 Assocs. v. City of Newark,
132 N.J. 180, 197 (1993). Under the
rational basis test the classification drawn by the statute is
presumed to be valid and will be sustained if it is "rationally
related to a legitimate state interest." Cleburne, supra, 473 U.S.
at 440, 105 S. Ct. at 3254, 87 L. Ed.
2d at 320; Drew Assocs. of
N.J., L.P. v. Travisano,
122 N.J. 249, 264 (1991). The legislation
may be justified upon any statement of facts reasonably conceived.
Bowen v. Gilliard,
483 U.S. 587, 601,
107 S. Ct. 3008, 3017,
97 L.
Ed.2d 485, 501 (1987).
Moreover, "[i]f the classification has some `reasonable
basis,' it does not offend the Constitution simply because the
classification `is not made with mathematical nicety or because in
practice it results in some inequality.'" Ibid. (quoting Lindsley
v. Natural Carbonic Gas Co.,
220 U.S. 61, 78,
31 S. Ct. 337, 340,
55 L. Ed. 369, 377 (1911)). "`The problems of government are
practical ones and may justify, if they do not require, rough
accommodations - - illogical, it may be, and unscientific.'"
Bowen, supra, 483 U.S. at 601, 107 S. Ct. at 3017, 97 L. Ed.
2d at
501 (quoting Metropolis Theatre Co. v. City of Chicago,
228 U.S. 61, 69-70,
33 S. Ct. 441, 443,
57 L. Ed. 730, 734 (1913)).
The "equal protection safeguard is offended `only if the
classification rests on grounds wholly irrelevant to the
achievement of the State's objective.'" Rinier v. State,
273 N.J.
Super. 135, 141 (App. Div.) (quoting New Jersey State Bar Ass'n v.
Berman,
259 N.J. Super. 137, 146 (App. Div. 1992)), certif. denied,
138 N.J. 269 (1994), cert. denied,
514 U.S. 1016,
115 S. Ct. 1358,
131 L. Ed.2d 216 (1995). In applying the equal protection clause
to social or economic legislation, such as in this case, we are
required to give the legislature "wide latitude" in making
classifications, as "the Constitution presumes that even
improvident decisions will eventually be rectified by the
democratic processes." Cleburne, supra, 473 U.S. at 440, 105 S.
Ct. at 3254, 87 L. Ed.
2d at 320.
Here the legislature wanted to insure that police officers who
were injured while in the performance of their duties could receive
special compensation, particularly in instances where the officer's
period of service was shortened as a result of the injury. The
means selected in this case, the selection of officers permanently
disabled due to injuries sustained while in the course of their
duties, was rationally related to that interest. Further, the
limitation of the amount of compensation addressed the state's
interest in safeguarding municipal revenues and insuring that
police officers did not receive greater compensation for not
working because of a disability than for working.
Moreover, the fact the statute does not address other
municipal employees or police officers who were injured while off-duty does not render N.J.S.A. 40A:14-154 irrational or
unconstitutional. "A statute does not violate the Equal Protection
Clause merely because in practice it may result in some inequality.
If a statutory distinction has some reasonable basis, `a State does
not violate the Equal Protection Clause merely because the
classifications made by its laws are imperfect.'" Whitaker v.
DeVilla,
147 N.J. 341, 358 (1997 ) (quoting Dandridge v. Williams,
397 U.S. 471, 485,
90 S. Ct. 1153, 1161,
25 L. Ed.2d 491, 501
(1970)). See also Murphy v. Allstate Ins. Co.,
252 N.J. Super. 280, 286 (App. Div. 1991) ("Imperfect classifications that are part
of a reasonable legislative scheme do not violate the equal
protection clause").
Here the statutory distinction was "rationally related to a
legitimate state interest," and thus N.J.S.A. 40A:14-154 does not
violate the Equal Protection Clause of the Federal Constitution.
Although the application of N.J.S.A. 40A:14-154, may, in effect,
limit the amount of long-term benefits paid to municipal police
officers injured while on duty but not to other municipal
employees, the statute is still constitutional, because the
statutory distinction is rationally related to a legitimate state
interest. We note also that the legislature made similar
distinctions in enacting otherwise identical statutes for county
policemen, N.J.S.A. 40A:14-116, and firemen, N.J.S.A. 40A:14-27,
two other dangerous positions of employment. We conclude that
N.J.S.A. 40A:14-154 does not violate the Equal Protection Clause of
the Fourteenth Amendment.
Plaintiff also argues that N.J.S.A. 40A:14-154 is "special
legislation" prohibited by the New Jersey Constitution. The State
Legislature is prohibited from passing "special" legislation under,
art. IV, § 7, ¶ 7, of the New Jersey Constitution, which provides
that "[n]o general law shall embrace any provision of a private,
special or local character." "`The test of whether a law
constitutes special legislation is essentially the same as that
which determines whether it affords equal protection of the laws.'"
Phillips v. Curiale,
128 N.J. 608, 627 (1992) (quoting Mahwah
Township v. Bergen County Bd. of Taxation,
98 N.J. 268, 285, cert.
denied,
471 U.S. 1136,
105 S. Ct. 2677,
86 L. Ed.2d 696 (1985)).
"Whether a law is special or general depends on the class of
persons affected by the law." Jordan v. Horsemen's Benevolent and
Protective Ass'n,
90 N.J. 422, 432 (1982). "The vice in special
laws is that they foster favoritism. The purpose of the
constitutional prohibitions is to prevent abuse of the legislative
process by picking favorites." Jordan, supra, 90 N.J. at 433.
Thus, "[i]n effect, the prohibitions eliminate the invidious threat
of unfair preferences and restrict the legislative power to grant
favors to some at the expense of others." Ibid.
In considering whether legislation is general or special, we
must apply a three-part test and determine:
(1) the purpose and subject matter of the
statute; (2) whether any persons are excluded
who should be included; and (3) whether the
classification is reasonable, given the
purpose of the statute.
[Jordan, supra, 90 N.J. at 432 (citing
Vreeland v. Byrne,
72 N.J. 292, 298-301
(1977)).]
Applying these factors here, the purpose of the statute is to
allow officers injured on the job to receive special compensation,
balanced by the state's interest in safeguarding municipal revenues
and insuring that police officers did not receive greater
compensation for not working than for working. That is a valid
state purpose.
The next inquiry is whether any person or group similarly
situated to those covered by the statute is excluded from the
operations of the statute. Phillips, supra, 128 N.J. at 628. Here
N.J.S.A. 40A:14-154 applies to all police officers permanently
disabled due to injuries sustained during the course of their
duties, and thus no similar group is excluded. "That a statute may
be valid as a general law even if only one entity is covered is
settled." Ibid.
But plaintiff claims disparate and selective treatment in that
N.J.S.A. 40A:14-154 was only applied to him, and not to Officer
Terry Fricks, one of the defendants in the back-to-back case,
Cannon v. Fricks (A-2563-97T3). Plaintiff contends he was denied
long-term disability payments in contrast to Fricks, who retired on
the same day, and received an annual long-term disability benefit
of $12,379. However, plaintiff was offered $12,085 per year and he
refused to accept that amount.
Fricks was injured in 1984 and retired in 1988. He initially
accepted long-term disability under the same formula as applied to
plaintiff. In accordance with our decision in Brown II, defendant
discontinued the benefits Fricks had been awarded by resolution,
and passed an ordinance awarding Fricks special compensation in the
form of long-term disability payments subject to a PFRS retirement
allowance offset. Defendant contends that a similar ordinance was
not passed with respect to plaintiff because his claim was in
litigation and because he had rejected long-term benefits under
that same formula. Thus, defendant offered plaintiff long-term
disability payments in accordance with its calculations, but
plaintiff refused to accept them.
Moreover, as defendant argues the disparity between the
benefits payable to Fricks and that payable to plaintiff were due
to the specific circumstances of the officers, and not because the
statute constituted "special legislation". Fricks was injured
after plaintiff, and thus his disability payments were based upon
a higher salary. Fricks also received a smaller pension than
plaintiff and thus his pension offset was less, resulting in a
greater long-term disability payment.
The last inquiry is whether the classification is reasonable,
given the purpose of the statute. Jordan, supra, 90 N.J. at 432.
As we noted under the equal protection analysis the classification
was reasonable. The legislation was enacted in recognition of the
risks associated with police work and the concern that officers who
were permanently disabled by on-the-job injuries may, due to a
short length of service, only be eligible for a reduced PFRS
pension. We conclude N.J.S.A. 40A:14-154 is not "special
legislation" prohibited by the New Jersey Constitution.
Plaintiff's last constitutional argument is that he was
deprived of his long-term disability payments without an
opportunity to be heard, in violation of his procedural due process
rights under the Fourteenth Amendment. Plaintiff does not contend
he was deprived of his long-term disability benefits without
notice; instead he contends his due process rights were violated
because the courts refused to address his argument that N.J.S.A.
40A:14-154 is unconstitutional. Since we now address his
contentions, this argument is now moot.
Plaintiff next argues the trial judge erred in including cost of living allowances (COLAs) in the calculation under N.J.S.A. 40A:14-154.
Plaintiff contends that in Brown II, we refused to address defendant's argument that COLAs should be added to plaintiff's PFRS disability pension in determining special compensation because defendant had raised that argument for the first time during the second oral argument in Brown II and had not briefed the issue or raised it below. However, defendant argues that the COLA issue was first addressed by plaintiff during oral argument in Brown II and in response defendant noted that it had filed a declaratory judgment action on that issue in another case.See footnote 4 In any event, in our written decision in Brown II, we did not specifically address the COLA issue. Thus, the law-of-the-case doctrine is not implicated here because there is no other lower or equal court decision precluding adjudication of this issue on the basis that defendant failed to raise it. Lanzet, supra, 126 N.J. at 192.
The difficult question remains whether the trial judge erred in including COLAs in the pension offset used to determine special compensation. Plaintiff does not dispute the COLA amounts used by the trial judge, he disputes their application. Plaintiff received a disability pension through PFRS. He is entitled to receive COLAs under the Pension Adjustment Act, N.J.S.A. 43:3B-1 to 43:3B-10. Increases in the annual COLA of retirement allowances are calculated by reference to the consumer price index, thereby protecting a retiree from increased inflation. N.J.S.A. 43:3B-1.
On remand plaintiff argued that the inclusion of COLAs in the pension offset would deprive him of any protection against inflation because his special compensation would be reduced by that amount. The trial judge found that although this was an "appealing argument," the language of N.J.S.A. 40A:14-154 clearly provides that "special compensation plus any pension paid . . . shall not exceed the salary payable at the time of the sustaining of the injuries" (emphasis added). The judge found that because the legislature used the term "pension paid" rather than "pension paid at the time of retirement," it intended to include COLAs in the formula.
Moreover, the trial judge found that interpretation was consistent with the intent of N.J.S.A. 40A:14-154, which was to "assure that a disabled officer does not receive more public funds for not working than for working." If COLAs were not considered as part of a retired officer's pension, he or she could earn more by not working than he or she had earned at the time of the injury because COLAs increased the amount of pension paid.
Although there is no specific reference to COLAs in N.J.S.A. 40A:14-154, in addressing the equitable distribution of a pension in a matrimonial case we noted that "post-retirement increases [COLAs] are as much a part of the pension as the amounts initially established by the pension system on retirement and merely adjust the pension payments for the then current real value of the dollar." Hayden v. Hayden, 284 N.J. Super. 418, 423 (App. Div. 1995).
In our view, the trial judge's interpretation is consistent with the express limits of the statute, and then-Governor Driscoll's concern that municipal benefits not exceed the employee's salary at the time of the injury. Consequently, we affirm essentially for the reasons expressed by Judge Quackenboss in his oral decision from the bench on February 25, 1997. We emphasize that we are in complete accord with the judge's comment that while plaintiff makes an appealing argument, he "raises an issue that should be addressed to the legislature and not to a court trying to apply a statute which . . . has plain meaning."
Lastly, plaintiff argues that the trial judge erred in denying his motion to amend the complaint to include a claim for a 1983 injury, thereby changing the date from 1981 to 1983 of the injury, and the corresponding salary, which was used to determine the ceiling level for calculation of special compensation. He contends the judge should have taken judicial notice of the worker's compensation award for the injury he sustained in 1983 and granted his motion to amend his complaint.
In plaintiff's initial complaint filed in 1988, he alleged he had been injured in 1981 and as a result "was no longer able to perform" all of his duties. He did not refer to his 1983 injury. After we decided Brown I, plaintiff sought to amend his complaint to include a new party, the PBA, and a new claim under the ADA. However, he did not seek to include his 1983 in