For reversal and remandment -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall, Mountain and Sullivan, and Judge Conford. For affirmance -- None. The opinion of the Court was delivered by Conford, P.J.A.D., Temporarily Assigned.
This is a workmen's compensation death case in which the sole issue is whether regularly paid overtime wages should be included in computing the weekly wage rate upon which compensation awards are based under N.J.S.A. 34:15-37, 12 and 13.
George Triano died on April 10, 1968 as a result of a heart attack suffered while driving a tractor trailer truck for his employer, the respondent Carbon Steel Products Corporation. The Division of Workmen's Compensation found his death to be work-related and awarded his widow, the petitioner, 450 weeks of dependency benefits at a rate of $69.80 based on a stipulated weekly base wage of $139.60. Thereafter, the Division denied petitioner's motion to amend the judgment to increase weekly benefits to the maximum rate of $83.00 in accordance with the employer's payroll record, entered into evidence, which indicated that the decedent regularly worked overtime and received an average weekly wage approaching $200 for the 15 months prior to
his death. The Union County Court affirmed the denial of the motion. The Appellate Division found the appeal to the County Court to have been out of time and dismissed the appeal taken to the former tribunal. We granted certification and remanded the case to the Appellate Division for a determination on the merits. 60 N.J. 510 (1972).
Thereupon the Appellate Division in an unreported opinion affirmed the judgment of the County Court. The court reasoned that N.J.S.A. 34:15-37 has been construed to refer to the customary hours generally worked by an employee in the type of operation involved, as distinguished from those worked by the particular employee, citing Engelbretson v. American Stores, 49 N.J. Super. 19 (App. Div. 1957), aff'd o.b. 26 N.J. 106 (1958), and that overtime has been held excludable in computing the weekly wage rate under N.J.S.A. 34:15-37 absent any agreement in the contract of employment that overtime is guaranteed. Atamanik v. Real Estate Management, Inc., 21 N.J. Super. 357 (App. Div. 1952). Reliance was also placed on Smolenski v. Eastern Coal Dock Co., 87 N.J.L. 26 (Sup. Ct. 1915), aff'd o.b. 88 N.J.L. 387 (E. & A. 1915). We again granted certification. 62 N.J. 197 (1973).
The facts are not in dispute. The decedent was the respondent's only truck driver. He delivered its products in New Jersey, New York and Pennsylvania and regularly worked in excess of 40 hours a week. In her dependency claim petition petitioner represented that the decedent ordinarily worked ten hours a day, five and a half days a week. The payroll record shows that for the first 40 hours of work per week, he received $3.34 an hour in 1967 and $3.49 an hour in 1968, and for time in excess of 40 hours per week he received a higher "overtime" hourly rate. Decedent's total earnings were $10,111.41 in 1967 and $2,511.94 in the first quarter of 1968. There is no evidence that he was "guaranteed" overtime in the contract of employment, apparently a union contract.
N.J.S.A. 34:15-37 provides that:
"'Wages', when used in this chapter, shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident. * * * When the rate of wages is fixed by the hour, the daily wage shall be found by multiplying the hourly rate by the customary number of working hours constituting an ordinary day in the character of the work involved. In any case the weekly wage shall be found by multiplying the daily wage by 5, or if the employee worked a greater proportion of the week regularly, then by 5 1/2, 6, 6 1/2 or 7, according to the customary number of working days constituting an ordinary week in the character of the work involved. * * *." (Emphasis added.)
The obvious purpose of the statute is to arrive at a realistic estimate of the worker's true weekly earning potential so that the benefits calculable thereon may fairly relate to the worker's loss attributable to the accident or death, subject to the statutory percentage limitations. See Maver v. Dwelling Managers Co., 34 N.J. 440, 443 (1961).
Considering the particular problem, for the moment, independently of existing case authority, it would seem evident, especially in the light of settled rules enjoining construction of the Workmen's Compensation Act liberally in favor of workmen, that so-called "overtime" should not be excluded in computing the wage base rate in a case where, as here, the term simply signifies a component of the method of calculation of the worker's pay and has no necessary relationhip to the customary work period experienced by the employee. An accommodation of the strict statutory language appears to be called for to meet the intrinsic sense of the act in a case where there is not a single hourly rate for all the hours customarily worked, but rather a "base rate" for a fixed number of those hours and an "overtime" rate for the remainder. In such a case -- the present one -- the intent of the act is ...