November 15, 2007
RICHARD UPDEGROVE (WIDOWER), PETITIONER-RESPONDENT,
PEERLESS TUBE COMPANY, RESPONDENT-APPELLANT.
On appeal from Department of Labor and Workforce Development.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 30, 2007
Before Judges Coburn, Fuentes and Grall.
Peerless Tube Company (Peerless) appeals from a dependency judgment of the Division of Workers' Compensation entered in favor of Richard Updegrove, widower of a former employee of Peerless. The issue on appeal is narrow. Peerless does not dispute the validity of Updegrove's claim or his entitlement to dependency benefits. The only issue is whether the judge of compensation erred in fixing benefits.
On January 14, 2004, the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142, was approved, effective immediately, to provide increased dependency benefits for certain widows and widowers. See N.J.S.A. 34:15-13 (as amended by L. 2003, c. 253, §§ 1, 4). To the extent that prior law applies, Updegrove's benefit is fifty percent of the decedent's wages. To the extent that the amended law applies, Updegrove's benefit is seventy percent of the decedent's wages.
Updegrove's wife died on November 9, 2002. On March 12, 2003, he filed a petition for dependency benefits. Peerless disputed the claim. The case was tried to a judge of compensation on various dates in 2005 and 2006. On June 13, 2006, the judge awarded Updegrove benefits fixed at seventy percent of wages from the date of his wife's death. Peerless filed a notice of appeal. On September 5, 2006, the judge of compensation amended the dependency judgment and awarded benefits in the amount of fifty percent of wages from the date of death through January 13, 2004, and seventy percent of wages from January 14, 2004, forward.
This court addressed the question of retroactivity presented here in Cruz v. Central Jersey Landscaping, Inc., 393 N.J. Super. 34 (App. Div. 2007). We affirm the amended order of the judge of compensation substantially for the reasons stated in the majority opinion in Cruz. We note that the employers' appeal from that decision is currently before the Supreme Court as of right pursuant to Rule 2:2-1(a)(2). The order in this case is consistent with the holding in Cruz.
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