On appeal from he Division of Workers' Compensation.
Michels, Gaynor and Arnold M. Stein. The opinion of the court was delivered by Arnold M. Stein, J.s.c., temporarily assigned.
Respondent employer American Can Company appeals from that part of the final judgment of the Division of Workers' Compensation holding that the death dependency benefits payments awarded to petitioner-widow are to be made solely by the employer, and not by the Second Injury Fund. We affirm.
By order of judgment dated December 16, 1974 Russell A. Wehrle was found to be totally and permanently disabled, as a result of a work-connected pulmonary condition arising from his employment at American Can, and because of certain other pre-existing conditions and disabilities. The judge of compensation found that American Can was responsible for 85% of Wehrle's disability and the Fund for the remaining 15%. Pursuant to N.J.S.A. 34:15-95.1 as the statute then read, the judge
of compensation submitted an advisory report to the Commissioner of Labor and Industry, who accepted this recommendation that the Fund continue payments after the employer's obligations were exhausted.*fn1
Respondent made total disability payments to Wehrle for the required 382 1/2 weeks. Thereafter, the Fund continued payment until Wehrle's death on April 16, 1982.
Petitioner thereafter filed death dependency claim petitions against both American Can and the Fund. Causal relationship was not in dispute in the hearing before the Judge of Compensation. He found that the work-connected pulmonary disease of decedent was a material contributing factor to his death, and awarded death dependency benefits to petitioner, pursuant to N.J.S.A. 34:15-13. The Judge of Compensation further held that American Can was solely responsible for payment of these benefits, and dismissed the petitioner's claim against the Second Injury Fund.
Respondent contends that the Second Injury Fund should be the source of death dependency payments to petitioner. It is urged that the 1980 amendment to N.J.S.A. 34:15-95.4 (Laws of 1980, c. 83, § 1) mandate such payments from the Fund. The statute provides in pertinent part:
Any employee or dependent receiving further weekly benefits as provided under R.S. 34:15-95, R.S. 34:15-12(b) or R.S. 34:15-13 at a rate applicable prior to January 1, 1980, and whose payment is less than the maximum compensation rate in effect for the year 1980 shall be entitled to receive a special adjustment benefit payment from the fund provided for by R.S. 34:15-94 and R.S. 34:15-95 and from those sources as provided for by this 1980 amendatory and supplementary act.
Any dependent, as defined in R.S. 34:15-13, of a person totally disabled who dies while receiving compensation from the fund provided for by R.S. 34:15-94 and 34:15-95, shall become entitled to dependent benefits under this chapter which are comparable to payments made to other dependents under the Workers'
Compensation Law, on or after the effective date of this 1980 amendatory ...