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Bush v. Johns-Manville Products Corp.

Decided: November 30, 1977.

VIRGINIA B. BUSH, PETITIONER-APPELLANT,
v.
JOHNS-MANVILLE PRODUCTS CORPORATION, RESPONDENT-RESPONDENT



Lynch, Bischoff and Kole. The opinion of the court was delivered by Bischoff, J.A.D. Kole, J.A.D. (concurring).

Bischoff

This is a workers' compensation death case in which the sole issue is the amount of weekly dependency death benefits to be paid to the surviving widow.

Decedent Anthony Bush was employed by respondent Johns-Manville Products Corporation from November 1922 to February 1924. His wages were $17.75 a week. After leaving the employ of respondent, decedent worked for others, chiefly the Central Railroad of New Jersey for whom he worked for approximately 50 years. Decedent died December 15, 1975 from a malignant mesothelioma. It is undisputed that this cancer was causally related to decedent's exposure to asbestos during the 16 months that he worked for respondent and was the cause of death.

Petitioner Virginia B. Bush was awarded dependency death benefits at the minimum rate of $15 a week for 450

weeks and thereafter during the continuance of her widowhood. This benefit rate was based on decedent's last wages in respondent's employ of $17.75 a week. Decedent earned $400 a week during his last full-time employment for the Central Railroad of New Jersey.

The judge of compensation, in reaching his conclusion, recognized the total inadequacy of the weekly benefits awarded petitioner and the change in the economy of the country over the last 50 years, but found he had no power to apply a compensation rate other than that computed on the wages paid in 1924. He held that any relief from that situation must come from the Legislature. As an index to the legislative intent, the judge observed that the Legislature had periodically raised the weekly compensation rate but decreed that such increases should be prospective only. He observed, further, that once an award is made it remains the same in spite of any future rate increases.

On this appeal petitioner recognizes that a literal reading of the Workers' Compensation Act supports the conclusion of the judge but urges this court to construe this socially important and ever broadening Compensation Act in a manner that will provide fair and adequate compensation benefits for her. Parkinson v. J & S Tool Co. , 64 N.J. 159 (1974).

Petitioner argues that since decedent first became disabled in 1975, the equivalent of a 1975 wage should be used in computing her dependency benefits. Recognizing the lack of proof of an appropriate 1975 wage rate for the job performed by decedent in 1924, petitioner suggests a 1975 wage rate could be computed using any of the following alternatives:

(1) Take the wages earned by decedent wherever he was last fully employed on the date of the manifestation of the occupational disease. In this case that weekly wage was $400 and would thus afford maximum dependency benefits of $119 a week.

(2) Assume decedent was in the employ of respondent at the time of death and ascertain the wages being paid at that time for the position filled by decedent in 1924.

(3) Look to the wages last earned by decedent in respondent's employ and compute the present value thereof, using accepted accounting and statistical methods to build in the inflation factor for the intervening years.

(4) Use the average wage base which the Commissioner of Labor and Industry fixes effective January 1 of each year as the basis for assigning the maximum temporary total disability, permanent total disability and ...


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