Price, Sullivan and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
Plaintiff William J. Jones, administrator of the estate of David J. Jones, Sr., or in the alternative, William J. Jones, administrator of the estate of Lillian A. Jones, appeals from the final judgment of the Essex County Court entered on February 27, 1962 in favor of the defendant.
Proceedings before the County Court were commenced by complaint and order to show cause why the remaining payments due under an award of the Workmen's Compensation Division should not be paid to plaintiff. The undisputed facts present a single legal issue -- Is an administrator of the estate of a sole dependent of an injured workman, who died from a cause unconnected with the compensable accident, entitled to payments of an award which accrued after the death of such sole dependent?
First the facts: David J. Jones, Sr., sustained a work-connected accident on June 16, 1958. He filed a formal petition for compensation and thereafter, during the pendency of his claim, died (May 24, 1959) of causes unrelated to said accident, leaving his widow Lillian A. Jones as sole dependent.
After a hearing before the Division on September 25, 1959, judgment was entered adjudicating that the deceased petitioner had suffered a compensable injury, and that the award to which he was entitled should be paid to his widow pursuant to N.J.S.A. 34:15-12(e). The temporary disability was fixed at $31 per week for 45 weeks, totalling $1,395, and the permanent disability was determined to be $31 a week for 160 weeks, amounting to $4,960, or a gross sum of $6,355 minus $525 for counsel and medical fees assessed against the petitioner.
The dependent widow died on March 5, 1961, at which time she had been paid by defendant an aggregate amount of $4,393, which represented all installment payments as provided in said award to and including the month of her death. There remained unpaid $1,962 in unaccrued monthly disbursements.
It is that balance which plaintiff, in his representative capacity, seeks to recover.
The defendant, insurance carrier for the employer of the deceased employee, disclaims liability for any payments under the award which accrued subsequent to the demise of the widow, maintaining that plaintiff is not a dependent of a deceased workman, there was an abatement of the unaccrued payments, and the statutory purpose of the Workmen's Compensation Act had been completely fulfilled.
The County Court, in rendering judgment for the defendant and discharging plaintiff's order to show cause, noted in its opinion (Jones v. N.J. Mfrs. Cas. Ins. Co. , 71 N.J. Super. 512, 517 (1962)) that:
"The amount of an award and the class of persons entitled thereto are determined by the statute. Whether the plaintiff in this action is entitled to the payments in question depends upon whether or not he is a member of the statutory class. Whatever right he has, if any, flows from the act itself."
Plaintiff, however, takes issue with the statutory construction as applied by the trial judge, and argues that any interest of the deceased widow in her compensation allowance is determined solely by N.J.S.A. 34:15-12(e) which, he avers, does not contain an abatement provision; and that her interest in the gross amount of the award was vested so that all payments unaccrued at the time of her death represent an asset of her estate. To buttress the argument in support of those contentions, he depends upon (a) his interpretation of legislative language, (b) a 1917 opinion of our Supreme Court in Hansen v. Brann & Stewart Co. , 90 N.J.L. 444, and (c) foreign cases, in particular State ex rel. Munding v. Industrial Commission , 92 Ohio St. 434, 111 N.E. 299 (Sup. Ct. 1915). We shall consider these points in the inverse order stated.
Any reliance upon the Ohio case, supra , is not well-founded. It is true, the court there declared that "when the award is once made to a sole ...