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Jenkins v. Johns-Manville Products Corp.

Decided: April 27, 1990.

FRED JENKINS, PETITIONER-RESPONDENT,
v.
JOHNS-MANVILLE PRODUCTS CORP., RESPONDENT-RESPONDENT, V. COMMISSIONER OF LABOR, AS TRUSTEE OF THE SECOND INJURY FUND, RESPONDENT-APPELLANT. ELIZABETH BOGNAR, PETITIONER-RESPONDENT, V. JOHNS-MANVILLE SALES CORP., RESPONDENT-RESPONDENT, V. COMMISSIONER OF LABOR, AS TRUSTEE OF THE SECOND INJURY FUND, RESPONDENT-APPELLANT. BARBARA SHIMANOWITZ, PETITIONER-RESPONDENT-CROSS-APPELLANT, V. JOHNS-MANVILLE SALES CORP., RESPONDENT-RESPONDENT, V. COMMISSIONER OF LABOR, AS TRUSTEE OF THE SECOND INJURY FUND, RESPONDENT-APPELLANT. CHRISTINE JACKSON, PETITIONER-RESPONDENT, V. JOHNS-MANVILLE PRODUCTS CORP., RESPONDENT-RESPONDENT, V. COMMISSIONER OF LABOR, AS TRUSTEE OF THE SECOND INJURY FUND, RESPONDENT-APPELLANT. ELEANOR KACSMAR, PETITIONER-RESPONDENT-CROSS-APPELLANT, V. JOHNS-MANSVILLE PRODUCTS CORP., RESPONDENT-APPELLANT, V. COMMISSIONER OF LABOR, AS TRUSTEE OF THE SECOND INJURY FUND, RESPONDENT-CROSS-APPELLANT



On appeal from the Division of Workers' Compensation.

Michels, Cohen and Brochin. The opinion of the court was delivered by Brochin, J.A.D.

Brochin

[240 NJSuper Page 553] By this opinion, we decide appeals from five decisions of a judge of compensation interpreting provisions of the Workers' Compensation statutes. Although not consolidated, all five were argued before us on the same day. We have considered them together because they all involve questions about eligibility for "special adjustment benefit [payments]" pursuant to N.J.S.A. 34:15-95.4 and the correct procedure for the calculation of those benefits.*fn1

Beyer v. Porter-Hayden, 104 N.J. 104, 515 A.2d 790 (1986), describes the purpose and operation of N.J.S.A. 34:15-95.4 as follows:

The special adjustment benefit provided by N.J.S.A. 34:15-95.4 raises a pre-1980 compensation payment to a level that bears the same relationship to the 1980 maximum workers' compensation rate as the compensation payment bore to the maximum compensation rate in effect at the time of award. N.J.S.A. 34:15-105 [now part of N.J.S.A. 34:15-95.4] provides for an annual supplement to the special adjustment benefit that increases an individual's total compensation payments to maintain the relationship with the current year's maximum compensation rate. Read together, the purpose of these two provisions is to adjust the workers' compensation benefits of certain employees and dependents so as to minimize the impact of inflation.

The statement attached to Assembly Bill 1206 (1980) which became N.J.S.A. 34:15-95.4 states its purpose as follows:

This bill would provide a special adjustment benefit payment for the totally disabled victims of earlier industrial accidents whose level of compensation has fallen woefully below current needs. For example, a worker injured 20 years ago might now be receiving a disability benefit of $30.00 or $40.00 per week as compared with the current standard of $185.00, yet, the needs of both may be the same. The program will be integrated with public or private income

security or disability benefit programs to provide a floor for totally disabled New Jersey industrial accident victims.

The Assembly Labor Committee's statement added that the legislation

(This legislative history is quoted in Wehrle v. American Can Co., 224 N.J. Super. 400, 403-404, 540 A.2d 898 (App.Div.), certif. granted and case remanded, 111 N.J. 642, 546 A.2d 553 (1988)). See also Beyer v. Porter-Hayden, supra.

The petitioners in our five cases are Jenkins, Bognar, Jackson, Kacsmar, and Shimanowitz. Jenkins worked for Johns-Manville Products Corp. from 1947 to 1955, and, in 1977, was totally and permanently disabled by asbestosis resulting from his employment. Bognar contracted mesothelioma as the result of his work for Johns-Manville Sales Corp. from 1942 to 1954. The disease first manifested itself in 1985, and he became totally disabled on August 18, 1985. The disease was a contributing cause of his death on June 10, 1986. Jackson contracted asbestosis and other conditions as the result of his work for Johns-Manville Products Corp. from 1947 to 1976. The disease first manifested itself in 1978, and he became totally disabled September 29, 1978. These conditions were contributing causes of his death on January 13, 1983. Kacsmar contracted asbestosis, mesothelioma and other conditions as the result of his work for Johns-Manville Products Corp. from 1942 to 1945. The disease first manifested itself in 1981, and he became totally disabled May 29, 1981. These conditions were contributing causes of his death on December 7, 1983. Shimanowitz contracted mesothelioma as the result of his work for Johns-Manville Sales Corp. from 1941 to August 15, 1972. (He continued to work for the company in Colorado until September 1981, but he was not exposed to asbestos after August 15, 1972.) The disease was a contributing cause of his death on July 17, 1982.

In each of these cases, the judge of compensation ruled that the worker or his surviving dependents, or both,

were entitled to special adjustment benefits, but only after first having received basic workers' compensation benefits for 450 weeks. In each of the cases, the Commissioner of Labor has appealed from that ruling, and in Kacsmar and Shimanowitz, the petitioners have taken the same position by cross-appeals. In Jackson, the Commissioner of Labor filed the only notice of appeal, and the 450 week waiting period is the only issue raised. In Bognar, Kacsmar and Shimanowitz, the Commissioner has appealed from the allowance of any special adjustment benefit payment, and in all the cases, he disputes both the method used to calculate the payment and the resulting amount.*fn2

-1-

Eligibility

By the terms of N.J.S.A. 34:15-95.4, a claimant is eligible for special adjustment benefit payments if he or she is "receiving . . . weekly benefits" for permanent total disability or death "at a rate applicable prior to January 1, 1980." "Rate" refers to

the amount of workers' compensation benefits payable each week. The formula for the calculation of that amount is defined by N.J.S.A. 35:15-12(b) and N.J.S.A. 35:15-13. Those sections fix the applicable workers' compensation benefit rate as a stated percentage of the employee's weekly wage, but not less than a stated minimum nor more than a stated maximum.

In Beyer v. Porter-Hayden, 212 N.J. Super. 539, 515 A.2d 1223 (App.Div.1985), aff'd 104 N.J. 104, 515 A.2d 790 (1986), the Appellate Division held that when the wage earned by an employee prior to January 1, 1980, or a statutory percentage in effect prior to January 1, 1980, or both, are factors used to determine the amount of the workers' compensation benefit payable to a totally and permanently disabled employee, or to the surviving dependent of a deceased employee, the resulting benefit rate is one "applicable prior to January 1, 1980" within the meaning of N.J.S.A. 34:15-95.4. The Supreme Court approved the reasoning of that decision and affirmed it. However, the Court also pointed out that if, pursuant to the minimum benefits provision of N.J.S.A. 34:15-12(a) which became effective January 1, 1980, the amount of a claimant's benefit was fixed at 20 percent of the statewide average weekly wage, then neither his actual wage nor the statutory percentage ...


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