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Maver v. Dwelling Managers Co.

Decided: October 25, 1960.

MARJORIE MAVER, PETITIONER-APPELLANT,
v.
DWELLING MANAGERS CO., AND FIDELITY & CASUALTY CO. OF NEW YORK, RESPONDENTS-RESPONDENTS



Price, Gaulkin and Sullivan. The opinion of the court was delivered by Sullivan, J.A.D.

Sullivan

This is an appeal by petitioner from a judgment of the County Court reducing the amount of a workmen's compensation award made in the Division. The opinion of the County Court is reported sub. nom. Maver v. Dwelling Managers Co. , 59 N.J. Super. 576 (Cty. Ct. 1960).

Petitioner's husband suffered a fatal heart attack arising out of and in the course of his employment by respondent as an apartment house superintendent. He was survived by petitioner, his widow, as his sole dependent. Decedent also was employed on a 35 hour per week basis as a boilermaker-welder by another employer. There was no claim that this latter employment was causally related to decedent's fatal heart attack.

The proof indicated that decedent and his wife were jointly employed as superintendents of a 42-apartment building in Newark, New Jersey. The wife was on the premises at all times, while decedent attended to whatever superintendent duties were required of him during his spare time and when he was not working at his employment as a boilermaker-welder. For their services as superintendents decedent and his wife were compensated at the rate of $130 per month, plus the use of an apartment valued at $80 a month and gas, electric and telephone service valued at $10 a month, or a total joint compensation of $220 per month.

In determining the rate of compensation to be applied, the Division held that it should be based on "total income loss," and added together decedent's wages from both employments as superintendent and boilermaker-welder and arrived at a total weekly income of $193.60, thereby entitling petitioner to receive death benefits at the maximum rate of $40 per week. The Division did not consider whether decedent's employments were "similar occupations." Cf. 2 Larson, Workmen's Compensation , ยง 60.30.

On appeal to the County Court by respondents who challenged the method of computing the award, petitioner

sought to sustain the Division's ruling on the basis of the "similar occupation" rule which is followed by some jurisdictions in workmen's compensation cases and which permits the adding together of an employee's wages from separate but similar types of concurrent employments for the purpose of calculating a compensation award. Petitioner argued the proofs established that decedent's employments as boilermaker-welder and superintendent were similar in type. Larson, supra; cf. Knight v. Cohen , 56 N.J. Super. 516 (App. Div. 1959), affirmed 32 N.J. 497 (1960).

The County Court rejected petitioner's contention on two grounds. First, it held that even though decedent attended to some boiler repair work in connection with his superintendent duties, the two employments were essentially dissimilar and "there is no warrant for combining the wages received in the jobs of boilermaker-welder and janitor." Second, the County Court added that even if decedent's employments had been similar types of occupation, the New Jersey Workmen's Compensation Act, N.J.S.A. 34:15-37, did not provide for a combining of wages from separate employments. Applying the statutory formula, N.J.S.A. 34:15-13, to decedent's wages as building superintendent only, the County Court determined that petitioner was entitled to dependency death benefits at the minimum rate of $10 weekly.

A review of the evidence makes it clear that decedent's two employments were dissimilar in type. In the one, he had a specialized craft or trade as boilermaker-welder. In the other, he had miscellaneous duties involving all kinds of minor plumbing, electrical, furnace and other types of repairs. He also took care of burning the garbage and putting out and taking in the barrels. He mopped the hallways, shovelled snow, and put up and removed the window screens. There is no doubt but that the two employments were unrelated as to type of work.

This finding is dispositive of petitioner's claim that the County Court should have based its award on the total of

decedent's wages from his separate employments. In Knight v. Cohen, supra , this court held that an employee's earnings from separate but dissimilar types of employments could not be added together for the purpose of computing a compensation award. As in Knight , we find it unnecessary to determine whether or not the New Jersey Workmen's Compensation Act, N.J.S.A. 34:15-37, provides for ...


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