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Piscopo v. Lemi Excavating Co.

Decided: December 10, 1986.

ANTHONY PISCOPO, JR., PETITIONER-APPELLANT,
v.
LEMI EXCAVATING COMPANY, RESPONDENT-RESPONDENT, V. STATE OF NEW JERSEY, RESPONDENT-RESPONDENT



On appeal from a Final Judgment of the Division of Workers' Compensation.

Antell, Long and D'Annunzio. The opinion of the court was delivered by, Antell, P.J.A.D.

Antell

In this Workers' Compensation action petitioner is the 29 year old son of the deceased employee who died as the result of a compensable accident. The judge of compensation found that petitioner was dependent on his father within the meaning of N.J.S.A. 34:15-13 but denied compensation benefits because the statute provides that in computing compensation for dependents, "except husband, wife, parents and stepparents, only those under 18 or over 40 years of age shall be included. . . ." N.J.S.A. 34:15-13 i. On this appeal petitioner argues that the statute "violates the equal protection clause, is arbitrary and capricious, is unconstitutional and serves no legitimate governmental function."

In pursuing his argument, petitioner points to certain New Jersey cases extending the parental obligation to support through the child's college years, reasoning that had decedent lived he would have supported petitioner when he returned to college, thereby making him a dependent in fact. He urges that dependency should be determined on a case-by-case basis and not on the basis of "an arbitrary age limit."

Petitioner brings to our attention the fact that the workers' compensation statutes of other states recognize that dependency continues during years of higher education. However, the unfairness of terminating dependency before college must be cured by statute, and not by judicial construction. See 2 Larson, Workmen's Compensation, ยง 63.23(d) at 11-139 to 11-140 (1986). Thus, in New Jersey dependency for workers' compensation purposes is determined not by actual dependency but by qualification under the strict terms of the statute. Stellmah v. Hunterdon Coop. G.L.F. Serv., Inc., 47 N.J. 163, 170 (1966). Despite the general policy favoring a liberal interpretation

of the Act, a court has no discretion to enlarge the class of eligible dependents beyond the limits fixed by statute. Miles v. Theobald Industries, 144 N.J. Super. 535, 537 (App.Div.1976), certif. den., 73 N.J. 51 (1977). Any resulting unfairness must be cured by the Legislature, not the courts. See Bush v. Johns-Manville Products Corporation, 154 N.J. Super. 188, 192 (App.Div.1977), certif. den., 75 N.J. 605 (1978) ("[W]e cannot, in the guise of a liberal interpretation, rewrite the compensation act. That is the sole province of the Legislature.").

Of course, the Legislature may not classify dependents capriciously. In order to withstand equal protection and due process objections, the scheme must bear a rational relationship to a legitimate state interest. Carr v. Campbell Soup Co., 124 N.J. Super. 382, 385 (App.Div.1973). As the classification here challenged is based on age, the strict scrutiny standard of equal protection does not apply, age not being a suspect criterion. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312-313, 96 S. Ct. 2562, 2566-2567, 49 L. Ed. 2d 520, 524 (1976); Taxpayers Assn. of Weymouth Tp. v. Weymouth Tp., 80 N.J. 6, 38-40 (1976), app. dism. and cert. den., 430 U.S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977).

It was petitioner's burden to demonstrate a lack of rational basis for the choice of age 18 as marking the end of dependency. The fact that the classification is in some respect imperfect or results in some inequities in practice does not warrant its invalidation. Weymouth Tp., supra, 80 N.J. at 40. Any statutory cutoff age is necessarily arbitrary, inevitably excluding "some persons who might plausibly be admitted" and including "others who might plausibly have been excluded." Ibid. But the chosen cutoff "is a legislative judgment which ought not be disturbed by the judiciary unless it exceeds the bounds of reasonable choice." Ibid. Thus, in Weymouth Tp., supra, the court upheld a trailer park ordinance which required the heads of households or their spouses to be at least 52 years

old. The court found an adequate basis in the facts that the median age of first-time grandparents was 54 to 57, and that increasing numbers of Americans were retiring in their fifties, thereby experiencing a decline in net income. Id. at 41.

Our attention has not been directed to any case in which a court invalidated a workers' compensation statute terminating dependency at a fixed age. In two cases the court expressly upheld such a statute against an equal protection attack. In Turner v. United States Fidelity & Guaranty Co., 125 Ga. App. 371, 187 S.E. 2d 905 (1972), the court validated a Georgia workers' compensation statute which ended a child's dependency at age 18, except for children mentally or physically disabled. That a child might remain dependent in fact beyond that age, observed the court, did not warrant departure from the strict terms of the act, since workers' compensation "is a creature of statute" and not of common law. 187 S.E. 2d at 907. The court concluded by saying:

It follows that, although it may seem inequitable to a child to cut off compensation when the age limit is reached although that child is still not as a matter of fact self sustaining, this is a question which addresses ...


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