On appeal from the Division of Workers' Compensation.
Plaintiff appeals the judgment of dismissal denying her claim for a special adjustment benefit pursuant to N.J.S.A. 34:15-95.4 in this Workers' Compensation dependency case.
Decedent-employee died in March 1982 from lung and pleural diseases directly related to his occupational exposure to asbestos. Decedent was unable to work, as a result of his illness, since 1972. In October 1976, decedent was awarded 100% total disability, 35% of which was due to a preexisting medical
condition, and 65% of which was attributed to his employment with respondent, Porter-Hayden. Until early 1978, respondent's two insurance carriers directly paid decedent his weekly compensation of $50 (based on his last earned wage of $75 per week), and at that time and until his death, the payments were assumed by the Second Injury Fund as provided in N.J.S.A. 34:15-94 and 95.
In May and June of 1972, plaintiff filed three dependency claim petitions against Porter-Hayden, its insurance carriers, and against the Second Injury Fund to seek dependency benefits for herself and a minor daughter, and to establish her statutory right to receive a special adjustment benefit pursuant to N.J.S.A. 34:15-95.4.
Despite the agreement of respondent's carriers to be responsible for any dependency benefit, including a Special Adjustment due plaintiff, as well as an early determination that the Second Injury Fund should be dismissed as a respondent, lengthy litigation, spanning nearly two years, ensued while the Deputy Attorney General, appearing on behalf of the Commissioner of Labor and Industry, explored the possible statutory parameters of the special adjustment provision.
On March 1, 1984, the court found that since decedent had died in 1982, plaintiff's benefits were not "at a rate applicable prior to 1980," although they were indeed based on the wages earned by her husband in 1972. The court awarded plaintiff dependency benefits of $58 per week, the minimum 1982 rate, to be apportioned between the two carriers.
During discussions at the pretrial conference, it was learned from the Deputy Attorney General that decedent's offset for $402.50 monthly in Social Security benefits precluded him from receiving a special adjustment benefit during his lifetime. The Attorney General on behalf of the Commissioner of Labor took the position that the widow could not be entitled to a special adjustment benefit in addition to her basic dependency benefit because the decedent had not actually received a special adjustment
benefit for himself. Plaintiff does not receive Social Security benefits. Her dependent daughter Susan is paid approximately $369 by Social Security which will continue until the end of her minority in June 1985.
Briefs were requested from the plaintiff and the Attorney General on the issue of whether the widow's entitlement to special adjustment benefits is derivative of the decedent-husband's receipt of such benefits.
In the period following, the Commissioner reversed his position and agreed that the widow's right to special adjustment benefits is not derivative of the ...