On appeal from Division of Workmen's Compensation.
This is an appeal as provided for in R.R. 1:2-12(a) from a judgment of the Workmen's Compensation Division by the respondents Kingston Contracting Co., employer, and American Mutual Liability Insurance Co., insurer.
The sole question raised by the respondents on this appeal is whether the petitioner, after receiving an award of compensation in Maryland, has the right to apply to the State of New Jersey for another award arising out of the same accident and claim.
The facts involved are not in dispute: The decedent, Dale F. Hudson, a domiciliary of the Commonwealth of Pennsylvania, was employed by the Kingston Contracting Co., in Red Bank, New Jersey, during the summer of 1956, and then worked on various construction projects in New Jersey, Pennsylvania, and Maryland until he was killed in an accident arising out of and during the course of his employment in the State of Maryland on January 14, 1957. The decedent left surviving him a widow, Elaine Marie Hudson, and three minor children. On January 21, 1957 decedent's widow, Elaine Marie Hudson, signed a Maryland State Industrial Accident Commission claim form for compensation. Though she did not appear at a hearing on March 1, 1957, the Commission ordered an award of compensation wherein it was provided:
"After due consideration of the evidence at hand in the above-entitled case, the Commission finds that Dale Hudson was injured on the 14th day of January, 1957, while in the employ of the abovenamed employer, and that as a result of said injury he died on the same day; that said injury causing death arose out of and in the course of his employment; that his average weekly wage was $148.00; and that he left surviving him his widow, Elaine Marie Hudson, and the following children, Monty Dale Hudson, Karen Elaine Hudson and Larry Ray Hudson, all of whom were wholly dependent upon the deceased for support at the time of his injury.
It is, therefore, this 1st day of March, 1957, by the State Industrial Accident Commissioner, Ordered subject to the provisions of the Workmen's Compensation Law, that Kingston Contracting Company, employer, and American Mutual Liability Insurance Company,
insurer, pay unto Elaine Marie Hudson, widow of Dale Hudson, deceased, for the use and benefit of herself and of the dependent children hereinbefore mentioned, compensation at the rate of $25.00 per week, payable weekly, for the period of four hundred weeks, not to exceed $10,000.00, said compensation to begin as of January 14, 1957, and in addition thereto such further sum not to exceed $300.00 for funeral expenses incurred by reason of the death of said Dale Hudson, and that statement of compensation paid be filed with the Commission in due time."
This award was the maximum allowable under the Maryland law.
Subsequent to the promulgation of this order, Elaine Hudson filed a petition with the New Jersey Division of Workmen's Compensation, seeking an award under New Jersey law based on the same accident. The Deputy Director determined upon the evidence and testimony given at the hearing that as to Kingston Contracting Company and its insurer, the deceased, Dale Hudson, met with a compensable accident that arose out of and during the course of his employment, of which the respondent had due and timely knowledge, and that the deceased had been hired by a contract of employment in New Jersey. The claim against James S. Norris and his insurer was dismissed on the basis of there being no contract of employment. An award was entered for the widow and three minor children totalling $36,755.02, plus $100 funeral expenses. The respondent was allowed a credit for amounts paid under the Maryland award.
The general problem of dual awards has been treated very fully by the Appellate Division in its recent opinion in Bowers v. American Bridge Co. , 43 N.J. Super. 48 (1956), affirmed on the basis of the opinion below in 24 N.J. 390 (1957), wherein it was held that if New Jersey has an adequate interest in the subject matter it may enter a second award, if credit is given for payments made on the first award. However, before a second award can be entered it must be determined, first, ...