Gallagher v. Engelhard Industries
Gallagher v. Engelhard Industries
Opinion of the Court
The opinion of the court was delivered by
Petitioner appeals from that portion of a May 1, 1985 workers’ compensation judgment that awarded her partial dependency benefits under N.J.S.A. 34:15-13f. on account of the work-related death of her son, George Gallagher. The sole issue is whether there was error in awarding petitioner partial rather than full dependency benefits. We affirm the judgment, for the reasons hereafter stated, partially on the basis of Judge Shteir’s oral opinion below and partially in the exercise of our original jurisdiction—there being no remaining genuine issues of material fact and the matter ripe for summary disposition as a matter of law. R. 2:8—3(b).
Except as hereinafter provided, in case of death, compensation shall be computed, but not distributed, on the following basis: a. For one dependent, 50% of wages.
f. ... The foregoing schedule applies only to persons wholly dependent, and in the case of persons only partially dependent ... the compensation shall be such proportion of the scheduled percentage as the amounts actually contributed to them by the deceased for their support constituted of his total wages____
Judge Shteir followed the formula (as modified by an amendment to the statute increasing the percentage from 35% to 50%) set forth in Ricciardi v. Damar Products Co., 45 N.J. 54, 65 (1965):
Contribution x scheduled percentage (50% x wages) = $35 X 50% Wages
= $17.50
In Ricciardi, Chief Justice Weintraub noted the anomaly of this statutory provision (now N.J.S.A. 34:15-13f.), in that the decedent’s wages cancel out in applying the formula to partial dependencies—but that is a matter for the Legislature. In any event, Florentine v. R.A. McDonough & Co., 158 N.J.Super. 16, 20 (App.Div. 1978) makes clear that the “contribution” portion of the formula includes not only the cash contributions by
$35 per week cash contribution + value of services—expenditures solely for decedent X 50% of wages 100% of wages
Petitioner offered no proofs, however, of value of services— and respondent has not contended that there should be any reduction of the weekly cash contribution by expenditures solely for decedent. We therefore conclude that the $17.50 partial dependency benefit calculation could reasonably have been reached on sufficient credible evidence present in the record, after giving due weight to the judge of compensation’s expertise in the field and his opportunity to hear and observe the witnesses. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); De Angelo v. Alsan Masons, Inc., 122 N.J.Super. 88, 89-90 (App.Div. 1973), aff’d o.b. 62 N.J. 581 (1973).
Petitioner seeks full dependency benefits, however, on a “reasonable probability that George Gallagher, had he survived and returned to work, would have supported his mother in toto.” While the decedent might have increased his contributions towards the support of his mother, in view of the death of his father, it is apparent that he could not have provided petitioner’s full support because of her receipt of social security benefits. While there are no reported New Jersey opinions involving such income, the out-of-state cases are clear on this point and collected in 2 Larson, Workmen’s Compensation Law, § 63.13, p. 11-121 to 11-122 and footnotes 17.1 and 17.3 (1983). See also, Cassaro v. Peerless Color Co., Inc., 14 N.J.Misc. 92 (N.J.Dept.Labor, 1936).
We hold that petitioner’s receipt of social security benefits precludes her from receiving full dependency benefits,
Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.