On appeal from Division of Workers' Compensation.
Pressler, Brody and Cohen. The opinion of the court was delivered by Brody, J.A.D.
[202 NJSuper Page 131] This appeal requires us to resolve a dispute over the distribution of dependency benefits under the Workers' Compensation Act. At the time of the work-related accidental death, the worker's widow, Carol Stone, and Dawn, her minor daughter from a former marriage, constituted the decedent's household. He was also survived by his former wife, Gladys Stone, who lives with Stacy and Colleen, two minor children of the decedent's marriage to Gladys. For the five years from the divorce until his death, the decedent paid $25 a week for the support of each of his two natural children pursuant to an agreed upon term of the judgment. Their mother earned $18,000 the year of his death. She never sought additional support for the girls. The widow's income was negligible. All
agree that Carol, Dawn,*fn1 Stacy and Colleen qualify as dependents under the Act, and that Carol and Dawn were wholly dependent. The compensation judge determined that as a matter of law all four were wholly dependent, thereby rejecting as immaterial Carol's claim that as a matter of fact Stacy and Colleen were only partially dependent. We reverse and remand for a determination of the actual dependency of Stacy and Colleen.
At issue is the interpretation of N.J.S.A. 34:15-13,*fn2 which provides for the computation and distribution of compensation
to dependents of a worker accidentally killed in the course of his employment. Total weekly compensation to be shared by all dependents is computed on a graduated scale of percentages of the decedent's wages, subject to a maximum, and depends upon the number of dependents. The more dependents, the higher the percentage. The four dependents here are entitled to share $236 a week, the maximum death benefits for four dependents. If all four were wholly dependent on the decedent, each would be entitled to $59 a week. If, however, Stacy and Colleen are partially dependent, as Carol contends, they would only be entitled to that percentage of $236 as the decedent's actual contribution to their support bore to $398, his total wages. N.J.S.A. 34:15-13(f). See Ricciardi v. Damar Products Co., 45 N.J. 54, 64-67 (1965). If we assume that the decedent's contribution to Stacy and Colleen was no more than the $25 a week he paid for each under the divorce judgment, as partial dependents each would be entitled to 6.28%*fn3 of $236 or $14.82. In that case, Carol and Dawn would receive $103.18 each. Stated generally, once the amount of total compensation is determined by the number of dependents, the less a partial dependent receives, the more a total dependent receives. See State v. Gosnell, 106 N.J. Super. 279, 284 (App.Div.1969).
The statute provides the following as to Stacy's and Colleen's dependency status:
The statute thus deems Carol wholly dependent because she was "actually a part of the decedent's household at the time of death." Dawn, the decedent's stepchild, is conceded to be wholly dependent in fact. Stacy and Colleen, however, may not be considered wholly dependent unless they actually were.
Despite the language of the statute, our courts have not based children's dependency benefits solely upon the "amounts actually contributed to them by the deceased" because in some cases the deceased worker had deserted his family and then contributed little or nothing to their support. The decedent's desertion left his children without the benefit of the presumption of total dependency given to children who were "a part of a decedent's household" and also left them with little or no amount of actual contribution from the decedent on which to base a claim of dependency in fact. To ameliorate the plight of such children, the statutory status of a "wholly dependent" child was interpreted to be the legal status of dependency regardless of the amount the decedent actually contributed.
In Santiago v. N.J. Fireworks Mfg. Co., Inc., 88 N.J. Super. 495 (App.Div.1965), the decedent's wife deserted him and their infant son in Puerto Rico. Thereafter the decedent came to New Jersey leaving the boy in the care of his parents. The decedent sent his father only $10 a week for the support of the boy and for the support of the decedent's father, mother, sister and two brothers. We held that as a matter of law the son was wholly dependent upon the decedent under the statute even though others were also supporting the child. Id. at 500. See
also Kolakowski v. Thomas Manufacturing Corporation, 88 N.J. Super. 478 (App.Div.1965), certif. ...