Jenkins v. Johns-Manville Products Corp.
| Decision Date | 27 April 1990 |
| Docket Number | JOHNS-MANSVILLE,JOHNS-MANVILLE |
| Citation | 573 A.2d 963,240 N.J.Super. 549 |
| Parties | Fred JENKINS, Petitioner-Respondent, v.PRODUCTS CORP., Respondent-Respondent, v. COMMISSIONER OF LABOR, as Trustee of the Second Injury Fund, Respondent-Appellant. Elizabeth BOGNAR, Petitioner-Respondent, v.SALES CORP., Respondent-Respondent, v. COMMISSIONER OF LABOR, as Trustee of the Second Injury Fund, Respondent-Appellant. Barbara SHIMANOWITZ, Petitioner-Respondent-Cross-Appellant, v.SALES CORP., Respondent-Respondent, v. COMMISSIONER OF LABOR, as Trustee of the Second Injury Fund, Respondent-Appellant. Christine JACKSON, Petitioner-Respondent, v.PRODUCTS CORP., Respondent-Respondent, v. COMMISSIONER OF LABOR, as Trustee of the Second Injury Fund, Respondent-Appellant. Eleanor KACSMAR, Petitioner-Respondent-Cross-Appellant, v.PRODUCTS CORP., Respondent-Appellant, v. COMMISSIONER OF LABOR, as Trustee of the Second Injury Fund, Respondent-Cross-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Lawrence G. Moncher, Deputy Atty. Gen., for respondent-appellant Com'r Of Labor, and respondent-cross-appellant (Robert J. Del Tufo, Atty. Gen. of New Jersey, attorney; Lawrence G. Moncher, on the brief).
Richard H. Thiele, for respondent-respondent Johns-Manville Sales Corp. and/or Johns-Manville Products Corp., and respondent-appellant. (Thiele & Hermes, attorneys; Richard H. Thiele, Somerville, on the brief).
Raymond E. Wenstrom, for petitioner-respondent Fred Jenkins (Raymond E. Wenstrom, Somerville, attorneys; Larry M. Radomski, New Brunswick, on the brief).
Robert N. Golden, for petitioner-respondent Elizabeth Bognar (Robert N. Golden, attorney; Robert N. Golden, Somerville, on the brief).
Murray D. Weingartner, for petitioner-respondent-cross-appellant Barbara Shimanowitz (Wysoker, Glassner, Weingartner & Goldblatt, attorneys; Allan L. Lockspeiser, New Brunswick, on the brief).
Robert N. Golden, for petitioner-respondent Christine Jackson (Robert N. Golden, attorney; Robert N. Golden, Somerville, on the brief).
Irving Silverman, for petitioner-respondent-cross-appellant Eleanor Kacsmar (Reitman, Parsonnet, Maisel & Duggan, Newark, attorneys; John J. Sharkey, Jr., Elizabeth, on the brief).
Before Judges MICHELS, COHEN and BROCHIN.
The opinion of the court was delivered by
BROCHIN, J.A.D.
By this opinion, we decide appeals from five decisions of a judge of compensation interpreting provisions of the Workers' Compensation statutes. Although not consolidated, all five were argued before us on the same day. We have considered them together because they all involve questions about eligibility for "special adjustment benefit payment[s]" pursuant to N.J.S.A. 34:15-95.4 and the correct procedure for the calculation of those benefits. 1
Beyer v. Porter-Hayden, 104 N.J. 104, 515 A.2d 790 (1986), describes the purpose and operation of N.J.S.A. 34:15-95.4 as follows:
The special adjustment benefit provided by N.J.S.A. 34:15-95.4 raises a pre-1980 compensation payment to a level that bears the same relationship to the 1980 maximum workers' compensation rate as the compensation payment bore to the maximum compensation rate in effect at the time of award. N.J.S.A. 34:15-105 [now part of N.J.S.A. 34:15-95.4] provides for an annual supplement to the special adjustment benefit that increases an individual's total compensation payments to maintain the relationship with the current year's maximum compensation rate. Read together, the purpose of these two provisions is to adjust the workers' compensation benefits of certain employees and dependents so as to minimize the impact of inflation.
The statement attached to Assembly Bill 1206 (1980) which became N.J.S.A. 34:15-95.4 states its purpose as follows:
This bill would provide a special adjustment benefit payment for the totally disabled victims of earlier industrial accidents whose level of compensation has fallen woefully below current needs. For example, a worker injured 20 years ago might now be receiving a disability benefit of $30.00 or $40.00 per week as compared with the current standard of $185.00, yet, the needs of both may be the same. The program will be integrated with public or private income security or disability benefit programs to provide a floor for totally disabled New Jersey industrial accident victims.
The Assembly Labor Committee's statement added that the legislation
... would adjust benefits upward for the eligible surviving dependents of workers' compensation recipients as well.
(This legislative history is quoted in Wehrle v. American Can Co., 224 N.J.Super. 400, 403-404, 540 A.2d 898 (App.Div.), certif. granted and case remanded, 111 N.J. 642, 546 A.2d 553 (1988)). See also Beyer v. Porter-Hayden, supra.
The petitioners in our five cases are Jenkins, Bognar, Jackson, Kacsmar, and Shimanowitz. Jenkins worked for Johns-Manville Products Corp. from 1947 to 1955, and, in 1977, was totally and permanently disabled by asbestosis resulting from his employment. Bognar contracted mesothelioma as the result of his work for Johns-Manville Sales Corp. from 1942 to 1954. The disease first manifested itself in 1985, and he became totally disabled on August 18, 1985. The disease was a contributing cause of his death on June 10, 1986. Jackson contracted asbestosis and other conditions as the result of his work for Johns-Manville Products Corp. from 1947 to 1976. The disease first manifested itself in 1978, and he became totally disabled September 29, 1978. These conditions were contributing causes of his death on January 13, 1983. Kacsmar contracted asbestosis, mesothelioma and other conditions as the result of his work for Johns-Manville Products Corp. from 1942 to 1945. The disease first manifested itself in 1981, and he became totally disabled May 29, 1981. These conditions were contributing causes of his death on December 7, 1983. Shimanowitz contracted mesothelioma as the result of his work for Johns-Manville Sales Corp. from 1941 to August 15, 1972. (He continued to work for the company in Colorado until September 1981, but he was not exposed to asbestos after August 15, 1972.) The disease was a contributing cause of his death on July 17, 1982.
In each of these cases, the judge of compensation ruled that the worker or his surviving dependents, or both were entitled to special adjustment benefits, but only after first having received basic workers' compensation benefits for 450 weeks. In each of the cases, the Commissioner of Labor has appealed from that ruling, and in Kacsmar and Shimanowitz, the petitioners have taken the same position by cross-appeals. In Jackson, the Commissioner of Labor filed the only notice of appeal, and the 450 week waiting period is the only issue raised. In Bognar, Kacsmar and Shimanowitz, the Commissioner has appealed from the allowance of any special adjustment benefit payment, and in all the cases, he disputes both the method used to calculate the payment and the resulting amount. 2
By the terms of N.J.S.A. 34:15-95.4, a claimant is eligible for special adjustment benefit payments if he or she is "receiving ... weekly benefits" for permanent total disability or death "at a rate applicable prior to January 1, 1980." "Rate" refers to the amount of workers' compensation benefits payable each week. The formula for the calculation of that amount is defined by N.J.S.A. 35:15-12(b) and N.J.S.A. 35:15-13. Those sections fix the applicable workers' compensation benefit rate as a stated percentage of the employee's weekly wage, but not less than a stated minimum nor more than a stated maximum.
In Beyer v. Porter-Hayden, 212 N.J.Super. 539, 515 A.2d 1223 (App.Div.1985), aff'd 104 N.J. 104, 515 A.2d 790 (1986), the Appellate Division held that when the wage earned by an employee prior to January 1, 1980, or a statutory percentage in effect prior to January 1, 1980, or both, are factors used to determine the amount of the workers' compensation benefit payable to a totally and permanently disabled employee, or to the surviving dependent of a deceased employee, the resulting benefit rate is one "applicable prior to January 1, 1980" within the meaning of N.J.S.A. 34:15-95.4. The Supreme Court approved the reasoning of that decision and affirmed it. However, the Court also pointed out that if, pursuant to the minimum benefits provision of N.J.S.A. 34:15-12(a) which became effective January 1, 1980, the amount of a claimant's benefit was fixed at 20 percent of the statewide average weekly wage, then neither his actual wage nor the statutory percentage otherwise applicable would be a factor in fixing his "rate." Beyer, supra, 104 N.J. at 106-107, 515 A.2d 790. In that event, the resulting benefit rate would not be one "applicable prior to January 1, 1980" within the meaning of N.J.S.A. 34:15-95.4. Id.
If an employee is killed or totally and permanently disabled by a compensable accident, the workers' compensation benefits which he or his dependents receive are based on his wages at the time of the accident. N.J.S.A. 34:15-37; Beyer, supra, 212 N.J.Super. at 545, 515 A.2d 1223; Bush v. Johns-Manville Products Corporation, 154 N.J.Super. 188, 193, 381 A.2d 65 (App.Div.1977), certif. den. 75 N.J. 605, 384 A.2d 835 (1978). If an employee is killed or totally and permanently disabled by an occupational disease, the resulting workers' compensation benefits are based on his wages at a time which has been described both as the time when the worker was last exposed to a condition which materially contributed to the disease and as the time of his last employment by the employer responsible for paying workers' compensation benefits. N.J.S.A. 34:15-32; Beyer, supra, 212 N.J.Super. at 545-546, 515 A.2d 1223; Bush, supra, 154 N.J.Super. at 192-196, 381 A.2d 65.
In most instances, both the last exposure and the last...
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