On appeal from Judgment of the Division of Workers' Compensation.
O'Brien, Simpson and Scalera. The opinion of the court was delivered by Simpson, J.A.D.
[209 NJSuper Page 575] Petitioner appeals from that portion of a May 1, 1985 workers' compensation judgment that awarded her partial dependency benefits under N.J.S.A. 34:15-13f. on account of the work-related death of her son, George Gallagher. The sole issue is whether there was error in awarding petitioner partial rather than full dependency benefits. We affirm the judgment, for the reasons hereafter stated, partially on the basis of Judge Shteir's oral opinion below and partially in the exercise of our original jurisdiction -- there being no remaining genuine issues of material fact and the matter ripe for summary disposition as a matter of law. R. 2:8-3(b).
Mary Gallagher, now 79 years of age, lived with her husband until his death on March 22, 1983. She then began receiving increased social security benefits -- apparently increased from $245 to $567 per month. Their son, George, lived with them all his life. He contributed $35 per week to petitioner for six or seven years prior to his death on July 10, 1983. Mrs. Gallagher had no other income. Respondent conceded that petitioner was entitled to dependency benefits, but the judge apparently erred in concluding that the parties agreed that only partial dependency benefits were due. In any event, respondent does not contest the allowance of $17.50 per week for 450 weeks on the basis of N.J.S.A. 34:15-13 that provides in pertinent part:
Except as hereinafter provided, in case of death, compensation shall be computed, but not distributed, on the following basis:
a. For one dependent, 50% of wages.
f. . . . The foregoing schedule applies only to persons wholly dependent, and in the case of persons only partially dependent . . . the compensation shall be such proportion of the scheduled percentage as the amounts actually contributed to them by the deceased for their support constituted of his total wages. . . .
Judge Shteir followed the formula (as modified by an amendment to the statute increasing the percentage from 35% to 50%) set forth in Ricciardi v. Damar Products Co., 45 N.J. 54, 65 (1965):
Contribution/Wages x scheduled percentage (50% x wages) = $35 x 50% = $17.50
In Ricciardi, Chief Justice Weintraub noted the anomaly of this statutory provision (now N.J.S.A. 34:15-13f.), in that the decedent's wages cancel out in applying the formula to partial dependencies -- but that is a matter for the Legislature. In any event, Florentine v. R.A. McDonough & Co., 158 N.J. Super. 16, 20 (App.Div.1978) makes clear that the "contribution" portion of the formula includes not only the cash contributions by
the son in a partial dependency case -- but can be increased by the value of services contributed by the decedent and should be decreased by the portion of the cash contribution expended for the decedent alone. The correct formula in a case like this would be:
$35 per week cash contribution value of services -- expenditures solely for decedent/100% ...