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Collas v. Raritan River Garage, Inc.

Superior Court of New Jersey, Appellate Division

July 19, 2019

LILLIAN COLLAS, Petitioner-Respondent,
RARITAN RIVER GARAGE, INC. Respondent-Appellant.

          Argued March 20, 2019

          On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2016-12887.

          David P. Kendall argued the cause for appellant (Ann P. De Bellis, attorney; Ann P. De Bellis, of counsel; David P. Kendall, on the brief).

          Richard B. Rubenstein argued the cause for respondent (Rothenberg Rubenstein Berliner & Shinrod, LLC, attorneys; Richard B. Rubenstein, on the brief).

          Before Judges Fuentes, Accurso and Moynihan.


          MOYNIHAN, J.A.D.

         Appellant 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.[1] 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 (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 affirm.

         Some 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."[2] 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).

         Garage 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.

         The 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.

         Garage 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 Division.

         While 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.

         The 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 ...

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