Cureton v. Joma Plumbing & Heating Co.

• Decision Date: 10 January 1962
• Docket Number: No. A--32,A--32
• Citation: 176 A.2d 799,71 N.J.Super. 249
• Parties: Vera CURETON, Administratrix of the Estate of John Robinson, Deceased, Petitioner-Appellant, v. JOMA PLUMBING & HEATING CO., Respondent-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 249

71 N.J.Super. 249

176 A.2d 799

Vera CURETON, Administratrix of the Estate of John Robinson Deceased, Petitioner-Appellant, v. JOMA PLUMBING & HEATING CO., Respondent-Respondent.

No. A--32.

Superior Court of New Jersey

Appellate Division.

Argued Dec. 18, 1961.

Decided Jan. 10, 1962.

Leonard J. Felzenberg, Newark, for appellant (Roskein, Kronisch, Felzenberg & Mandell, Newark, attorneys).

Joseph T. Ryan, Jersey City, for respondent (Lamb, Langan & Blake, Jersey City, attorneys).

Before Judges GAULKIN, KILKENNY and HERBERT.

The opinion of the court was delivered by

KILKENNY, J.A.D.

The Division of Workmen's Compensation and the Essex County Court, on appeal, concurred in dismissing the claim petition filed by John Robinson in his lifetime for temporary and permanent disability resulting from a work-connected injury. The sole ground of dismissal was that Robinson had died without dependents from a cause unrelated to his injury before his case had been heard in the Division and an award made.

Except for the percentage of Robinson's permanent disability, the facts are not in dispute. Robinson, a plumber's helper employed by respondent at a weekly salary of $55, suffered a back injury on May 30, 1959 in an accident arising out of and during the course of his employment. He received temporary disability payments to June 29, 1959, when he returned to work. He filed his workmen's compensation claim petition on July 28, 1959. Prior to the pretrial held on November 23, 1959, Robinson was examined by Dr. Philip Willner, his physician, who estimated permanent disability at 10% Of total. Dr. Jack Siegel examined him on behalf of respondent and estimated the permanent disability at 2 1/2% Of total. Before the amount of permanent disability was determined at a hearing, Robinson died on January 4, 1960 from a non-compensable cause.

It is conceded that decedent was not survived by any dependents within the meaning of N.J.S.A. 34:15--13(g). His surviving next of kin were two sisters, one of whom, Vera Cureton, filed an affidavit with the Essex County Surrogate on June 24, 1960 and therein stated that decedent's estate did not exceed $1500 and consisted of the following asset:

'Claim for Workmen's Compensation in the sum of $400.00.'

With the filing of the consent of the other sister, Vera Cureton became entitled to the personal assets of the decedent without letters of administration in accordance with N.J.S. 3A:6--6, N.J.S.A.

Respondent challenges the legal standing of Vera Cureton to proceed with decedent's compensation claim on the ground that she is not the administratrix of the estate, and her right under N.J.S. 3A:6--6, N.J.S.A. to collect the personal assets of the decedent is limited to $1500, which sum would be exceeded by an award of 10% Of total permanent disability. We find no difficulty with her right to proceed because N.J.S. 3A:6--6, N.J.S.A., gives her 'all the rights, powers and duties of an administrator duly appointed for the estate.' Since we find that this workmen's compensation claim has a value of less than $1500, as we shall demonstrate hereafter, we need not pass upon the question of what her right would be if the value of the claim exceeded $1500.

There is no assertion of any claim for temporary disability payments, since the decedent apparently received those benefits in his lifetime. If his permanent disability was 10% Of total, as his physician estimated, he would have been entitled, if he had lived, to 55 weeks, N.J.S.A. 34:15--12(c)(22), at $34 weekly, based on his weekly wage of $55, N.J.S.A. 34:15--12(a), or a total of $1870. If permanent disability was only 2 1/2% Of total, as respondent's doctor estimated, the decedent would have received 13 3/4 weeks at $34 weekly, or a total of $467.50.

It is also the established rule that permanent disability payments commence upon termination of the temporary disability. N.J.S.A. 34:15--16; Coponi v. Federal Industries, 31 N.J. 1, 10, 155 A.2d 1 (1959). In this case, as noted above, temporary disability ended on June 29, 1959, so that 27 weeks elapsed between that date and January 4, 1960, when Robinson died.

The controlling statute is N.J.S.A. 34:15--12(e) which provides:

'In case of the death of the person from any cause other than the accident or occupational disease, during the period of payments for permanent injury, the remaining payments shall be paid to such of his or her dependents as are included in the provisions of said section 34:15--13 or, if no dependents, the remaining amount due, but not exceeding $400.00, shall be paid in a lump sum to the proper person for funeral expenses; * * *.'

We are not concerned here with the right of Dependents to receive the disability payments which the employee himself would have been entitled to receive if he had lived. Their right thereto is made clear by N.J.S.A. 34:15--12(e), supra, and our courts have enforced this right even where the employee died before an award was made in his favor. See Bollinger v. Wagaraw Building Supply Co., 122 N.J.L. 512, 6 A.2d 396 (E. & A. 1939); King v. Western Electric Co., 122 N.J.L. 442, 449--450, 5 A.2d 490, (Sup.Ct.1939), affirmed 124 N.J.L. 129, 11 A.2d 32 (...