Bush v. Johns-Manville Products Corp., JOHNS-MANVILLE

CourtNew Jersey Superior Court – Appellate Division
Writing for the CourtBISCHOFF; KOLE
Citation154 N.J.Super. 188,381 A.2d 65
PartiesVirginia B. BUSH, Petitioner-Appellant, v.PRODUCTS CORPORATION, Respondent-Respondent.
Decision Date30 November 1977

Robert N. Golden, Somerville, for petitioner-appellant (Graham, Yurasko, Golden & Lintner, Somerville, attorneys).

Richard H. Thiele, Jr., Somerville, for respondent-respondent (Wharton, Stewart & Davis, Somerville, attorneys).

Before Judges LYNCH, BISCHOFF and KOLE.

The opinion of the court was delivered by


This is a workers' compensation death case in which the sole issue is the amount of weekly dependency death benefits to be paid to the surviving widow.

Decedent Anthony Bush was employed by respondent Johns-Manville Products Corporation from November 1922 to February 1924. His wages were $17.75 a week. After leaving the employ of respondent, decedent worked for others, chiefly the Central Railroad of New Jersey for whom he worked for approximately 50 years. Decedent died December 15, 1975 from a malignant mesothelioma. It is undisputed that this cancer was causally related to decedent's exposure to asbestos during the 16 months that he worked for respondent and was the cause of death.

Petitioner Virginia B. Bush was awarded dependency death benefits at the minimum rate of $15 a week for 450 weeks and thereafter during the continuance of her widowhood. This benefit rate was based on decedent's last wages in respondent's employ of $17.75 a week. Decedent earned $400 a week during his last full-time employment for the Central Railroad of New Jersey.

The judge of compensation, in reaching his conclusion, recognized the total inadequacy of the weekly benefits awarded petitioner and the change in the economy of the country over the last 50 years, but found he had no power to apply a compensation rate other than that computed on the wages paid in 1924. He held that any relief from that situation must come from the Legislature. As an index to the legislative intent, the judge observed that the Legislature had periodically raised the weekly compensation rate but decreed that such increases should be prospective only. He observed, further, that once an award is made it remains the same in spite of any future rate increases.

On this appeal petitioner recognizes that a literal reading of the Workers' Compensation Act supports the conclusion of the judge but urges this court to construe this socially important and ever broadening Compensation Act in a manner that will provide fair and adequate compensation benefits for her. Parkinson v. J & S Tool Co., 64 N.J. 159, 313 A.2d 609 (1974).

Petitioner argues that since decedent first became disabled in 1975, the equivalent of a 1975 wage should be used in computing her dependency benefits. Recognizing the lack of proof of an appropriate 1975 wage rate for the job performed by decedent in 1924, petitioner suggests a 1975 wage rate could be computed using any of the following alternatives:

(1) Take the wages earned by decedent wherever he was last fully employed on the date of the manifestation of the occupational disease. In this case that weekly wage was $400 and would thus afford maximum dependency benefits of $119 a week.

(2) Assume decedent was in the employ of respondent at the time of death and ascertain the wages being paid at that time for the position filled by decedent in 1924.

(3) Look to the wages last earned by decedent in respondent's employ and compute the present value thereof, using accepted accounting and statistical methods to build in the inflation factor for the intervening years.

(4) Use the average wage base which the Commissioner of Labor and Industry fixes effective January 1 of each year as the basis for assigning the maximum temporary total disability, permanent total disability and dependency rates in the following years. N.J.S.A. 34:15-12(a).

(5) Use the legal minimum wage in effect on the date of the manifestation of the occupational disease or death.

We are fully aware that the approach to the Workers' Compensation Act should be upon both equitable and humanitarian principles. Parkinson v. J & S Tool Co., supra. However, we cannot, in the guise of a liberal interpretation, rewrite the compensation act. That is the sole province of the Legislature. If application of the statute produces inequity, unfairness and hardship, the remedy is in the hands of the Legislature. Miles v. Theobald Industries, 144 N.J.Super. 535, 537, 366 A.2d 710 (App.Div.1976), certif. den. 73 N.J. 51, 372 A.2d 316 (1977); Silagy v. State, 105 N.J.Super. 507, 510, 253 A.2d 478 (App.Div.), certif. den. 54 N.J. 506, 257 A.2d 106 (1969).

Claims for injury or death as a result of occupational disease are governed by the same rules applicable to claims for injury or death by accident. N.J.S.A. 34:15-35. However, there is a different approach to the time period within which claims may validly be made in the two situations. Claims for injury arising out of accident must be filed within two years of the date of the accident. N.J.S.A. 34:15-51. On the other hand, as a result of a recent amendment to the occupational disease section of the Workers' Compensation Act, L.1974, c. 65, § 1, a claim for disability or death caused by occupational disease may be filed "within two years after the date the claimant first had knowledge" of the nature of his disability and its relation to his employment. N.J.S.A. 34:15-34. This amendment has retroactive application. Panzino v. Continental Can Co., 71 N.J. 298, 364 A.2d 1043 (1976).

Thus, for the first time, the door has been opened for the filing of a petition for compensation benefits where disability and death resulting from an occupational disease are separated from exposure or employment by a time lapse, as here, of over 50 years. This time lapse possesses a potential for hardship which did not previously exist.

The wages which provide the basis upon which dependency benefits are computed are defined in N.J.S.A. 34:15-37 as "the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident * * * ." This statutory provision was applicable at the time the 1974 amendment was adopted. If the Legislature intended to alter the basis for computing wages, it would have said so.

Petitioner recognizes that N.J.S.A. 34:15-32 requires that compensation benefits for occupational disease shall be the "same in amount and duration" and "shall be payable to the same persons as would be entitled thereto had the death or disability been caused by an accident arising out of and in the course of employment," and argues that the word "accident," as used therein, should be interpreted in occupational disease cases as occurring at the time the occupational disease first becomes manifest or the time when death caused by the occupational disease occurs.

We disagree. It is true that this is the test generally applied to determine when a cause of action accrues for statute of limitations purposes, Brooks v. Bethlehem Steel Co., 66 N.J.Super. 135, 168 A.2d 670 (App.Div.), certif. den. 36 N.J. 29, 174 A.2d 657 (1961); Biglioli v. Durotest Corp., 44 N.J.Super. 93, 129 A.2d 727 (App.Div.1957), aff'd 26 N.J. 33, 138 A.2d 529 (1958); Natural Products Co. v. Hudson Common Pleas, 123 N.J.L. 522, 10 A.2d 148 (Sup.Ct.), aff'd 125 N.J.L. 309, 15 A.2d 754 (E.&A.1940); cf. Calabria v. Liberty Mut. Ins. Co., 4 N.J. 64, 72, 71 A.2d 550 (1950).

But, for the purpose of the consideration of the sole issue on this appeal, which is the computation of compensation benefits to which petitioner is entitled, we cannot ignore N.J.S.A. 34:15-37, to which N.J.S.A. 34:15-32, the occupational disease benefits provision, is keyed. N.J.S.A. 34:15-37 specifically refers to the wages or money rate at which the service rendered is recompensed under the "contract of hiring in force at the time of the accident." This can only mean the contract of hiring with the employer who is to pay the compensation benefits. Cf. Tomarchio v. Greenwich Tp., 75 N.J. 62, 79, 379 A.2d 848, 856 (1977); cf. Maver v. Dwelling Managers Co., 34 N.J. 440, 444-46, 170 A.2d 35 (1961). Clearly, there was no such contract of hiring in force in 1975, at the time of decedent's death. In the context of the wage base to be used for occupational disease dependency benefits, "accident" thus cannot mean the date of death.

If Bush had sustained a serious injury with consequent total disability in 1924 as a result of an accident, he would have received an award of total permanent disability at the rate of $11.82 a week for the full period of total disability. See N.J.S.A. 34:15-12(b), as amended L.1923, c. 49, § 1. Had he subsequently died in 1975, as a result of the accidental injury sustained in 1924, and a dependency claim then been filed, the wages for the purpose of determining the rate of dependency benefits would have been the wages earned by Bush at the time of his employment in 1924. N.J.S.A. 34:15-13; N.J.S.A. 34:15-37. Huyett v. Pennsylvania R. R. Co., 86 N.J.L. 683, 92 A. 58 (E.& A.1914). The plain language of N.J.S.A. 34:15-32 requires that compensation for occupational disease be treated in exactly the same manner.

In death cases it is clear that the benefit rate to be applied in both occupational disease and accident cases is the rate in effect at the time of death, not the rate in effect at the time of exposure or accident. Calabria v. Liberty Mut. Ins. Co., supra; McAllister v. Kearny Bd. of Ed., 79 N.J.Super. 249, 257, 191 A.2d 212 (App.Div.1963), aff'd 42 N.J. 56, 198 A.2d 765 (1964); cf. Koval v. Natural Products Refining Co., 25 N.J.Misc 489, 491, 55 A.2d 885 (Sup.Ct.1947). However, this "benefit rate" established in N.J.S.A. 34:15-13 is applied to wages as defined in N.J.S.A. 34:15-37. Unquestionably, application of the 1975 benefit rate to 1924 wages fails to take into...

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