Before Judges Shebell, D'Annunzio and Coburn.
The opinion of the court was delivered by: Shebell, P.j.a.d.
On appeal from a Final Judgment of the Division of Workers' Compensation.
The opinion of the court was delivered by
On August 17, 1976, petitioner's husband, John Oliver Davis, was killed in a tractor trailer collision during the course of his employment with respondent, Branin Transport, Inc. On February 16, 1979, an Order of Dependency Benefits was entered by the Division of Workers' Compensation (Division) awarding petitioner widow-dependency benefits at the rate of $128.00 per week subject to reduction by earnings after 450 weeks of compensation, as provided in N.J.S.A. 34:15- 13.
Following the Legislature's amendment of N.J.S.A. 34:15-13 eliminating the credit, the Second Injury Fund, as custodian of the State Disability Supplemental Benefits program, began supplemental payments of benefits to petitioner, as widow, on July 25, 1995, despite her earning in excess of $128.00 per week. On March 18, 1996, petitioner filed a notice of motion against Branin for the payment of dependency benefits noting the elimination of the earned income credit.
On May 2, 1996, Branin filed an answer to petitioner's notice of motion. On July 26, 1996, the Judge of Compensation held a hearing on the application, at which time stipulations as to the operative facts were placed on the record. On September 13, 1996, petitioner filed a notice of motion for an order to implead the Second Injury Fund. On September 27, 1996, an order was entered joining the Second Injury Fund as a party respondent.
On October 18, 1996, another hearing was held before the compensation Judge and testimony was presented. On December 17, 1996, the Judge issued a reserved decision holding that N.J.S.A. 34:15-13 was constitutional and petitioner was entitled to receive dependency benefits effective July 25, 1995. The Judge also awarded petitioner counsel fees to be paid by Branin in the amount of $19,500.
The order granting dependency payments was entered on December 27, 1996. On January 6, 1997, Branin filed its notice of appeal from the order. On January 23, 1997, Branin filed an amended notice of appeal challenging the award of attorney's fees. On February 10, 1997, the judge addressed Branin's objection to the award in a Supplemental Decision. Branin thereafter withdrew the amended appeal. On the original dependency claim petition, an order was entered on April 10, 1979, awarding petitioner dependency benefits for herself and her six dependent children. The children would receive dependency benefits until each one of them reached 18 years of age, and thereafter the petitioner would receive $128.00 per week through widowhood, subject to a reduction by earnings after the first 450 weeks, as then provided by N.J.S.A. 34:15-13.
The parties stipulated that petitioner's wages have exceeded $128.00 per week since January 14, 1980. Petitioner received her last dependency payment on April 5, 1994, when decedent's youngest child turned 18 years of age. Petitioner has not remarried and remains a dependent under N.J.S.A. 34:15-13, despite the fact that her earnings are above $128.00 per week.
In 1976, N.J.S.A. 34:15-13, originally provided:
This 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 the spouse....
On July 25, 1995, the Workers' Compensation Act was amended to provide:
This compensation shall be paid, in the case of the surviving spouse, during the entire period of survivorship, or until such ...