On appeal from the Division of Workers' Compensation.
O'Brien, Scalera and Stern. The opinion of the court was delivered by Scalera, J.A.D.
The issue presented by this appeal concerns when and how an employer may seek recovery for the overpayment of workers' compensation benefits made to a widow who remarries and fails to advise the employer of that fact.
Some of the background facts are not in dispute. For many years until March, 1974, Stanley Hajnas (Stanley), was employed by Engelhard Mineral and Chemical Company (Engelhard). In the course of that employment he was exposed to dust and acid fumes and consequently developed chronic bronchitis, pulmonary emphysema and lung disease which rendered him totally disabled leading him to seek workers' compensation benefits. Eventually he developed cancer from that exposure and died on September 19, 1975. On November 18, 1975 Ethel Hajnas (Ethel), as his dependent widow, also filed a claim petition seeking benefits for herself and a dependent child.
The compensation matters came on for trial in which compensation was sought on behalf of Stanley, now deceased, for permanent total disability from March 4, 1974 until his death and in which Ethel sought dependency benefits for herself as his widow, and for a dependent daughter. The trial took place over six different hearing dates between January 27, 1978 and November 17, 1978. However, it was not until September 19, 1979 that a formal judgment was finally entered.*fn1 On Stanley's petition there was an award for permanent total disability. On the other, the judgment was broken down to $14,395.92, representing compensation for Ethel and the dependent child from September 19, 1975 to May 30, 1978, and for $28,807.84 at the rate of $93.10 per week from May 30, 1978 to May 4, 1984, for Ethel's continued widow dependency benefits alone, the latter award being entered expressly "subject to conditions and extensions of N.J.S.A. 34:15-13." Ethel did receive the weekly payments of $93.10 through April 3, 1984 when the payments were halted.
N.J.S.A. 34:15-13(f) provides that,
Should that any dependent of a deceased employee die during the period covered by such weekly payments the right of such dependent to compensation under this section shall cease but should the surviving spouse of a deceased employee remarry during such period and before the total compensation is paid the spouse shall be entitled to receive the remainder of the compensation which would have been due said spouse had the spouse not remarried, or $1,000, whichever is the lesser.
Thus, upon remarriage, the spouse of a deceased employee is no longer entitled to such death benefits except for the limited statutory amount. Blumenfeld v. Rust Craft Greeting Cards, Inc., 94 N.J. Super. 584, 585 (App.Div.1967), aff'd 51 N.J. 1 (1967).
When Ethel testified during the original hearings on January 27, 1978, she had not yet remarried, but had been living with
her soon-to-be second husband since July 1977. However, she did remarry on July 29, 1978, before the hearings ended and the final judgments were entered in the Workers' Compensation Division (Division). There was no dispute that she never advised the attorney representing her in the Division in 1978 of the fact of her remarriage. Additionally, she failed to voluntarily notify either Engelhard or its compensation insurance carrier, New Jersey Manufacturers Insurance Company (Manufacturer's) of that fact.
The evidence at the most recent hearings indicated that during the spring of 1984, Manufacturer's had twice sent Ethel a letter requesting, among other things, that she indicate her then marital status. Although Ethel claimed to have lost the first such letter she finally responded to an April 3, 1984 letter indicating that she had remarried, which Manufacturer's did not receive until July 9, 1984.
In the interim, however, on or about June 22, 1984, Manufacturer's sent an investigator to visit Ethel at home at which time she reluctantly admitted to her remarriage which she then claimed to have taken place in "late 1983." However, when the investigator went to the local municipal registrar's office he discovered that the marriage certificate listed the date of marriage as being July 29, 1978. Ethel completely denied that any such investigator had ever visited her home. During the time that she received the benefits payments they were made by check, made out to her as "Ethel Hajnas" and endorsed by her in that name only.
Engelhard then brought this action as a motion in the Division, seeking reimbursement from Ethel of $21,599.20, representing overpayments of $93.10 weekly, from July 29, 1978 (the date of her remarriage) to April 3, 1984 (the date of the last payment). At the plenary hearing on this motion Ethel insisted that her compensation attorney had not explained to her that if she remarried there would ...