On appeal from the New Jersey Department of Labor & Industry, Division of Workers' Compensation, Middlesex County.
Pressler, O'Brien and Stern. The opinion of the court was delivered by Stern, J.A.D.
This appeal requires us to decide whether a widow who has received worker's compensation death dependency benefits for 450 weeks is entitled to continuation benefits for the two months each year during which she does not work as a teacher.
N.J.S.A. 34:15-13(j) provides in relevant part:
compensation shall be paid, in the case of a surviving spouse, during the entire period of survivorship or until such surviving spouse shall remarry except that any earnings from employment by the surviving spouse after 450 weeks of compensation have been paid shall be deducted from the compensation thereafter payable to said spouse. . . .
Judge Andrew A. Valeriani, Jr., in the Division of Workers Compensation, determined that the petitioner was entitled to the continuing dependency benefits for the two months during which she was not employed and not working each summer, and we affirm substantially for the reasons expressed in his oral opinion of July 1, 1988.
The facts are not in dispute. As Judge Valeriani stated:
The Petitioner is the widow of Edward Sarisky who died January 11, 1974. On May 22, 1981 Judgment was entered awarding dependency benefits to the Petitioner and three infant children at the then maximum amount of $112 per week. The youngest child, Stephanie, attained age 18 on December 18 of 1984 leaving the Petitioner, Mrs. Sarisky, as the only eligible dependent. As of December 28 of 1984, 572 weeks of compensation had been paid to the Petitioner and the three children which would exceed her individual entitlement of 450 weeks pursuant to N.J.S.A. 34:15-13(j)*fn1 . . . .
Petitioner is employed by the Columbia-Montour area Vocational Technical School earning a salary of approximately $27,562 per year which would offset any dependency benefit entitlement.
Judge Valeriani found, based on substantial evidence in the record, that petitioner, who has no other employment, "is employed on a ten month basis" and that she is "a ten month employee". In making his determination the judge implied, and we agree, that the individual circumstances and employment agreement control and that not all teachers are to be similarly treated. Here, a reading of the portions of the "Collective Bargaining Agreement" and attached salary schedule and a letter from the Business Manager of the Columbia-Montour Area Vocational-Technical School in the record indicate that petitioner is employed as a "ten month science teacher." Different employees in the same school are treated differently. However, the collective negotiations agreement does not appear to give petitioner any choice as to whether she could elect to serve as a "ten month" or "twelve month" employee. Hence we find sufficient credible evidence in the record to support the judge's critical factual determination that petitioner "is a ten month employee."*fn2
The employer contends that "for purposes of computing extended dependency benefits, the deduction for 'earnings from employment by the surviving spouse after 450 weeks of compensation have been paid,' should be based on the annual earnings ...