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Estrada v. Chek


July 3, 2008


On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Docket No. 2004-34020.

Per curiam.


Submitted June 4, 2008

Before Judges Lisa and Lihotz.

Quick Chek appeals from a judgment of the Division of Workers' Compensation awarding petitioner, Marina Juana Estrada, full dependency benefits of $227.98 per week for 450 weeks. Quick Chek argues (1) that the trial court's credibility findings are not supported by reasons grounded in the record, (2) that the trial court erred in finding that petitioner satisfied the dependency requirements of N.J.S.A. 34:15-13f, and (3) that the discrepancy between the trial court's oral opinion and the final order of judgment requires a remand for clarification. We reject these arguments and affirm.

On July 16, 2004, Alfonso Estrada Moron, also known as Eduardo Zambrano, was shot and killed in a hold-up while working as an assistant manager for Quick Chek. There is no dispute that decedent was acting in the course of his employment when he was killed, and there is no dispute about the amount of his weekly wages.

Petitioner is the mother of decedent. She lives in Peru. She filed a dependency claim, alleging she was solely dependent on decedent. She testified that her husband died in September 1996, and that decedent moved to the United States in September 1999 so he could work to support her. From 1999 to 2004, decedent was her sole source of support, sending her $600 per month, plus an additional $600 on her birthday and $1000 at Christmas. According to petitioner, decedent worked two full-time jobs.

Petitioner acknowledged that she has four other adult children, but said none of them contributed to her support because they all had families of their own to support. Since decedent's death, petitioner said she has been living at a subsistence level with money provided by her eleven brothers and sisters. She currently rents a room from her niece for $200 per month.

Petitioner was unable to present any documentary evidence to corroborate the regular payments by decedent to her. She said decedent sent the money to an agency in Peru, and she would go there and "give the name and they give me the money in cash."

The judge of compensation credited petitioner's testimony, setting forth in detail his reasons for doing so in his oral decision of October 11, 2007. He therefore entered a full dependency award in petitioner's favor. In his oral decision, the judge of compensation stated, "Petitioner's dependency benefits are $227.98 per week, 450 weeks at that rate equates to $102,500.91 and continuing until Petitioner either dies or remarries."

The standard for appellate review of a workers' compensation judge's determination is the same as that used for review of any non-jury case. Brock v. Public Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). Our review is limited to "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor." [Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).]

We "may not 'engage in an independent assessment of the evidence as if [we] were the court of first instance.'" Ibid. (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). As long as there is sufficient credible evidence in the record to support the compensation judge's conclusions, we must uphold those findings, even if we believe we would have reached a different result. Ibid. (citing In re Taylor, 158 N.J. 644, 657 (1999)).

Applying this highly deferential standard, we have no hesitancy in concluding that the factual findings of the compensation judge are amply supported by the record evidence. This was primarily a credibility determination. The factfinder had the "'opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court can not enjoy.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). The factfinder also had the ability to draw inferences "from the ordinary experiences of life and common knowledge as to the natural tendencies of human nature, as well as upon observations of the demeanor and character of the witness." State v. Vandeweaghe, 177 N.J. 229, 239 (2003) (citation and internal quotations omitted).

Quick Chek next argues that petitioner failed to meet her burden of proving full dependency status under N.J.S.A. 34:15-13f. At trial, petitioner introduced into evidence decedent's Peruvian birth certificate, on which the name "Juana Moron de Estrada" appears. Petitioner testified that the document identified her as the mother and decedent as her son.

At trial, Quick Chek did not dispute the mother-son relationship. At the commencement of trial, counsel for Quick Chek said, "we come before Your Honor seeking a determination as to whether Mrs. Estrada is a full or partial dependent and if you were to find dependency, the appropriate weekly rate." Now, for the first time on appeal, Quick Chek argues that the proofs were lacking to establish that petitioner is decedent's mother. We reject this argument for two reasons. First, Quick Chek's concession of the parentage issue at trial forecloses it from raising the issue on appeal. See Ji v. Palmer, 333 N.J. Super. 451, 459 (App. Div. 2000). Second, the unrefuted evidence from petitioner, found by the compensation judge to be credible, supports the conclusion of parentage.

Quick Chek further argues that petitioner failed to prove she received support from decedent because she presented no documentary proof of the money transactions, and that petitioner was not a full dependent of decedent because "[i]t is more probable that if [p]petitioner received financial support from [d]ecedent, it was in conjunction with additional support from her other four sons and eleven siblings."

The judge of compensation disagreed. He found "the petitioner to be a full dependent of the decedent." He further explained, "I think the Petitioner relied on her son's payments to her. When her son died, now she lives under the charity of her brothers and sisters."

N.J.S.A. 34:15-7 provides that compensation for the injury or death of an employee "arising out of and in the course of employment" shall be made by the employer according to the schedule contained in N.J.S.A. 34:15-12 and N.J.S.A. 34:15-13.

In the case of death, N.J.S.A. 34:15-13 provides that compensation for one or more dependents shall be 70% of the decedent's wages. "The term 'dependents' shall apply to and include any or all of the following who are dependent upon the deceased . . . at the time of death, namely: . . . parent, . . . ." N.J.S.A. 34:15-13f (emphasis added). Persons who are partially dependent are only entitled to "such proportion of the scheduled percentage as the amounts actually contributed to them by the deceased for their support." Ibid.

Generally, the provisions of the Workers' Compensation Act are liberally construed in order to ensure the accomplishment of the statute's remedial goals. Stellmah v. Hunterdon Coop. G.L.F. Serv., Inc., 47 N.J. 163, 169 (1966). Under N.J.S.A. 34:15-13f, the phrase, "who are dependent upon the deceased" has been construed to mean "those who were being wholly or to a substantial degree supported by the deceased at the time of his [or her] death." Catelli v. Bayonne Assocs., Inc., 3 N.J. Super. 122, 124 (App. Div. 1949). "'A showing of actual dependency does not require proof that, without decedent's contributions, claimant would have lacked the necessaries of life. The test is whether his contributions were relied on by claimant and to maintain claimant's accustomed mode of living.'" Florentine v. R. A. McDonough & Co., 158 N.J. Super. 16, 19 (App. Div. 1978) (quoting Ricciardi v. Damar Prods. Co., 45 N.J. 54, 62 (1965)).

The compensation judge's findings regarding petitioner's full dependency status are supported by sufficient credible evidence in the record, and we have no occasion to interfere with those findings. Accordingly, we will not disturb the conclusion that petitioner was a full dependent of decedent.

Finally, Quick Chek points out a discrepancy between the oral decision in which the compensation judge recited the benefits awarded and concluded that the benefits would continue "until Petitioner either dies or remarries." The signed order, however, merely sets forth the weekly benefits and total amount, but does not contain the additional phrase indicating that the benefits would continue until petitioner dies or remarries. Thus, Quick Chek argues that a remand is necessary to clarify the discrepancy between the judge's oral decision and the final order.

No such remand is necessary. In a case of compensable death, maximum allowable compensation benefits "shall be paid, in the case of a surviving spouse, during the entire period of survivorship or until such surviving spouse shall remarry and, in the case of other dependents, during 450 weeks. . . ." N.J.S.A. 34:15-13j. Clearly, petitioner is an "other dependent," and not a "surviving spouse." It is plain that the compensation judge inadvertently misspoke when rendering his oral decision. The signed order is entirely correct.



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