On appeal from the Division of Workers' Compensation.
Michels and Arnold M. Stein. The opinion of the court was delivered by Arnold M. Stein, J.A.D.
We review this matter on remand from the Supreme Court.
In 1974 Russell A. Wehrle was adjudicated totally and permanently disabled as a result of a work-connected pulmonary condition combined with other pre-existing conditions and disabilities. Allocation of this disability was fixed at 85% for American Can and 15% for the Second Injury Fund.
American Can made total disability payments to Wehrle for the required 382 1/2 weeks. The Fund continued payments until Wehrle's death on April 16, 1982.
Petitioner, Wehrle's widow, then filed death dependency claim petitions against both American Can and the Fund. Causal relationship was not in dispute at the hearing before the judge of compensation, who awarded death dependency benefits to petitioner pursuant to N.J.S.A. 34:15-13. The judge of compensation ruled that American Can was solely responsible for payment of death dependency benefits, and dismissed the claim against the Fund.
In our earlier opinion, we affirmed the ruling of the judge of compensation, rejecting American Can's contention that the Fund should be the source of death dependency payments to petitioner. We specifically ruled that the purpose of N.J.S.A. 34:15-95.4, the 1980 "special benefits" amendment to the Workers' Compensation Act, was not to make the Fund a source of the entire death dependency payment. Wehrle v. American Can Co., 224 N.J. Super. 400, 403-404 (App.Div.1988), certif. granted and remanded, 111 N.J. 642 (1988).
The Supreme Court granted American Can's petition for certification and summarily remanded the matter to us
When the matter was before us for the first time, the issue in dispute in the briefs filed and at oral argument was whether either American Can or the Fund should pay all of the death dependency benefits due to petitioner. We were not asked to consider, and we did not consider, who would be responsible for any special adjustment benefit payments which might be due to petitioner. Indeed, none of the parties before us -- American Can, the Fund, and the petitioner -- even addressed the question
of petitioner's eligibility for special adjustment benefits under N.J.S.A. 34:15-95.4.
Pursuant to the Supreme Court's remand instructions, we now consider this ...