On appeal from Division of Workers' Compensation, Department of Labor.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Holston, Jr. and Grall.
We consolidate four appeals that raise a common question under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142 (the Act). On January 14, 2004, an amendment revising the formula for calculating death benefits payable to the dependents of an eligible, deceased worker was approved to "take effect immediately." L. 2003, c. 253, §§ 1, 4. The question is whether the revised formula should be applied to determine the amount of the benefit on a claim that arose prior to the effective date. The two judges of compensation that decided these four cases answered that question differently. We conclude that the revised formula should be applied in pending cases to calculate death benefits for dates on and after the effective date of the amendment, January 14, 2004.
Under the Act in effect at the time of the four deaths that give rise to these claims, the benefit was based on a percentage of the decedent's wages that varied with the number of the decedent's dependents, N.J.S.A. 34:15-13a-e. The range was: fifty percent of wages for one dependent, N.J.S.A. 34:15-13a; fifty-five percent of wages for two dependents, N.J.S.A. 34:15-13b; sixty percent of wages for three dependents, N.J.S.A. 34:15-13c; sixty-five percent of wages for four dependents, N.J.S.A. 34:15-13d, and seventy percent of wages for five or more dependents, N.J.S.A. 34:15-13e.
Under the revised formula, adopted effective January 14, 2004, subsection a of N.J.S.A. 34:15-13 was amended to provide a benefit based on seventy percent of wages "[f]or one or more dependents." L. 2003, c. 253, § 1. The subsections of N.J.S.A. 34:15-13 addressing benefits for two, three, four and five or more dependents were left in place but amended to read "(Deleted by amendment, P.L. 2003, c. 253)." N.J.S.A. 34:15-13b-e (as amended by L. 2003, c. 253, § 1).
There is no dispute that each of the four petitioners is eligible for death benefits. Accordingly, we state only the facts pertinent to the issue presented.
Petitioner Audrey Bush's husband died on February 1, 2002. She filed her claim for death benefits on May 16, 2002. On December 22, 2004, the judge of compensation awarded Bush a benefit equivalent to fifty percent of her husband's wages from the date of his death to January 13, 2004 and seventy percent of his wages from January 14, 2004 forward. The decedent's former employer, Kauffman & Minteer, Inc., appeals.
Petitioner Ruth A. Herzer's husband died on March 26, 2003. The judge of compensation approved a settlement of that claim on January 8, 2004. On September 10, 2004, Herzer moved to amend the judgment to reflect benefits calculated at the rate of seventy percent of wages. The judge, who also decided Bush's claim, ruled that Herzer was entitled to a benefit equivalent to seventy percent of her deceased husband's wages from January 14, 2004 forward. Her husband's former employer, Classic Cars Nissan, Inc., appeals. Herzer cross-appeals contending that the attorney fee awarded was inadequate.
Petitioner Luz M. Cruz's husband, the father of her three children, was injured and died on March 19, 2002. She filed her claim on April 10, 2002, and Central Jersey Landscaping, Inc., his former employer, voluntarily commenced paying benefits at a rate of sixty-five percent of wages. On February 28, 2005, a second judge of compensation concluded that Cruz was not entitled to a benefit of seventy percent for any period because her husband died prior to the effective date of the amendment. She appeals from that order.
Petitioner Valentyna Hohl's husband died on July 9, 2003, and his former employer, Insulated Duct & Cable Co., commenced paying death benefits to his widow based on fifty percent of his wages. On May 18, 2004, Hohl filed a claim seeking benefits based on seventy percent of her deceased husband's wages in accordance with the amended formula. On February 28, 2005, the judge, who also decided petitioner Cruz's claim, denied Hohl's petition. She appeals.
In each of these four cases, the petitioner was entitled to a death benefit based on less than seventy percent of her husband's wages under the formula in effect on the date he died. Each petitioner contends that she is entitled to a benefit based on seventy percent of her husband's wages from January 14, 2004 and thereafter. None of the petitioners seek benefits payable at the revised rate for dates prior to January 14, 2004. All four employers contend that the benefit rate must be set at the rate in effect on the date of the former employee's death.
In determining whether to apply an amendment to claims that arose prior to the amendment's adoption, our courts apply the two-part test articulated by the Supreme Court in Twiss v. State, Department of Treasury, 124 N.J. 461, 467 (1991). See Bunk v. Port Auth. of New York and New Jersey, 144 N.J. 176, 193 (1996). The first question is whether the Legislature intended to give the amendment retroactive application. Twiss, supra, 124 N.J. at 467. "[T]he second question is whether retroactive application is an unconstitutional interference with 'vested rights' or will result in a 'manifest injustice.'" Ibid.
This amendatory act does not expressly address the issue of retroactivity. As noted above, the act simply provides that it "shall take effect immediately." L. 2003, c. 253, § 4. Our courts have held that the phrase "shall take effect immediately" gives "no clear indication" of the Legislature's intention with respect to claims arising prior to its effective date. Bunk, supra, 144 N.J. at 194; see Harris v. Branin Transport, Inc., 312 N.J. Super. 38, 44 ...