March 20, 2019
appeal from the New Jersey Department of Labor and Workforce
Development, Division of Workers' Compensation, Claim
Petition No. 2016-12887.
P. Kendall argued the cause for appellant (Ann P. De Bellis,
attorney; Ann P. De Bellis, of counsel; David P. Kendall, on
Richard B. Rubenstein argued the cause for respondent
(Rothenberg Rubenstein Berliner & Shinrod, LLC,
attorneys; Richard B. Rubenstein, on the brief).
Judges Fuentes, Accurso and Moynihan.
Raritan River Garage (Garage) appeals from that portion of an
order for final judgment entered by the Division of
Workers' Compensation (Division), awarding fees to
counsel for respondent Lillian Collas, who, as the surviving
spouse of a worker who succumbed to an occupational disease,
received a compensation award of dependent benefits pursuant
to N.J.S.A. 34:15-13. Garage contends the judge of compensation
erred when he based the calculation of attorney's fees on
Collas's expected lifetime as determined from the table
of mortality and life expectancy (the table) printed as
Appendix I to the New Jersey Rules of Court, see
Life Expectancies for All Races and Both Sexes, Pressler
& Verniero, Current N.J. Court Rules, Appendix 1
at www.gannlaw.com (2019), as opposed to what Garage contends
was the long-accepted basis for such calculation: a 450-week
period of total permanent benefit payments. We disagree and
review of related statutory provisions is necessary to aid an
understanding of the parties' arguments. N.J.S.A.
34:15-12(b) provides that compensation for total permanent
disability shall be paid to a qualified worker for 450 weeks
and may be extended beyond if the worker, after complying
with any ordered rehabilitation, can show the disability
caused an impossibility to obtain earnings equal to those
earned at the time of the accident. Surviving dependents of a
deceased worker are also granted benefits under N.J.S.A.
34:15-13. N.J.S.A. 34:15-13(i) and (j) also mention the
450-week period: section (i) allows payments to
"physically or mentally deficient" dependents
"during the full compensation period of 450 weeks";
some dependents are limited, under section (j), to 450 weeks
of payments. Neither of those provisions apply to a surviving
spouse. The only provision that did apply - providing for an
offset against payable compensation for "any earnings
from employment by the surviving spouse after 450 weeks of
compensation [had] been paid" - was eliminated by the
Legislature in 1995 when it amended section (j) to provide
compensation shall be paid to a surviving spouse "during
the entire period of survivorship." A. 2280
(1995). "Thus, the amendment eliminated the credit
against continuing dependency benefits for earnings paid to a
dependent spouse after the initial 450 week dependency period
has expired." Harris v. Branin Transp., Inc.,
312 N.J.Super. 38, 43 (App. Div. 1998).
contested Collas's proposal to the judge of compensation
that, based on the 1995 amendment, the counsel fees in this
case should be based on her lifetime - which best estimated
the amount of benefits that would be paid to her. Garage
argued, as it now reprises, that the use of the table to
calculate the attorney's fees was speculative because
benefits upon which the fees are based may end due to a
spouse's death or remarriage.
judge of compensation distilled the issue: "Is a
previously legislatively mandated 450[-]week period less
speculative in terms of calculating [Collas's] true award
than the life expectancy tables published in the court
rules[?]" Considering Garage's claim that counsel
fees were traditionally calculated using the 450-week period,
the judge ruled:
For some reason, counsel fees are to be based upon the
450[-]week initial period of disability. Given the
[L]egislature's intentional deletion of similar language
from this statute[, ] it is clear that the award of lifetime
benefits to a surviving spouse in a dependency case means
exactly that; lifetime benefits. The [c]ourt cannot accept
[Garage's] position that an arbitrary 450[-]week rule is
less speculative than a published life expectancy table
relied upon by [c]ourts in this [S]tate on a regular basis.
The life expectancy tables provide the anticipated number of
years that an individual will live based upon actuarial
calculations as to how long people actually live. That is and
should be the basis for the determination of the true benefit
table in a dependency case, and should, therefore, be the
basis for the calculation of the legal fee.
concedes in its merits brief that, as the judge of
compensation determined, a dependent spouse awarded
compensation under N.J.S.A. 34:15-13 "has always been
entitled to receive dependency benefits for the remainder of
his or her life or until he or she remarries," not just
for the initial 450-week period. Garage takes exception to
the "judge's characterization of the '450[-]week
rule' as 'arbitrary, '" because that time
frame "is well-grounded in the language of the
Workers' Compensation Act." Although Garage
acknowledges that the calculations based on the 450-week
period are also "speculative" because they, like
the calculations based on the table, do not account for a
spouse's death or remarriage, Garage contends the
450-week time frame "has the imprimatur of the
Legislature as being a reasonable basis for calculating
awards for total disability benefits and benefits for other
dependents," and has been consistently applied by the
we often read statutes in pari materia to give
effect to the Legislature's will in enacting separate
laws on the same subject matter, In re Petition for
Referendum on Trenton Ordinance 09-02, 201 N.J. 349, 359
(2010), we discern no link that tethers the 450-week period
in N.J.S.A. 34:15-12 and portions of N.J.S.A. 34:15-13 to the
calculation of counsel fees which is governed by N.J.S.A.
34:15-64. Section 64 requires that all claimants' counsel
fees be approved by the judge of compensation. N.J.S.A.
34:15-64(d); Gromack v. Johns-Manville Prods. Corp.,
147 N.J.Super. 131, 134 (App. Div. 1977). The judge may allow
a prevailing party "a reasonable attorney fee, not
exceeding [twenty percent] of the judgment." N.J.S.A.
34:15-64(a); Gromack, 147 N.J.Super. at 134.
Legislature did not amend section 64 when it amended N.J.S.A.
34:15-13(j). A. 2280. Thus, we perceive no
connection between the 1995 amendment and the counsel-fee
statute. Nor do we see, even accepting Garage's premise
that fees have long been calculated using the 450-week
period, that section 64 mandates a judge of ...