LILLIAN COLLAS VS. RARITAN RIVER GARAGE, INC. (DIVISION OF WORKERS' COMPENSATION) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3103-17T4
LILLIAN COLLAS,
Petitioner-Respondent, APPROVED FOR PUBLICATION
July 19, 2019
v.
APPELLATE DIVISION
RARITAN RIVER GARAGE,
INC.
Respondent-Appellant.
_____________________________
Argued March 20, 2019 – Decided July 19, 2019
Before Judges Fuentes, Accurso and Moynihan.
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).
The opinion of the court was delivered by
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
www.gannlaw.com (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
1
Garage did not appeal from the judge's denial of its motion to reconsider; it
did not list that order in its notice of appeal or case information statement .
Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 460-62 (App. Div.
2002) (declining to address an order not listed in appellant's notice of appeal or
case information statement).
A-3103-17T4
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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).
2
Compensation ends under section (j) if a spouse, "other than a surviving
spouse of a member of the State Police or member of a fire or police
department or force who died in the line of duty," remarries. N.J.S.A. 34:15-
13(j).
A-3103-17T4
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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.
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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);
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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 compensation to utilize that
standard in approving fee awards under section 64. As we noted in Gromack:
Our recent opinion in Barbarevech v. Johns-Manville
Products Corp., 143 N.J. Super. 31 (App. Div. 1976),
serves as a guiding precedent. There, where the case
before the Division had not been fully tried, we stated
that (1) the award of counsel fees within the statutory
limits is left to the discretion of the judge of
compensation; (2) that discretion is not unbridled; it is
limited by the requirement of N.J.S.A. 34:15-64 that
the fee awarded be reasonable, and (3) although the
amount of the award is a factor to be considered in
fixing the fee, it has limited significance. The more
important factors are the nature and extent of the
services and the responsibility involved. These factors
include, among other things, the need for the petition,
what was really in issue, the difficulty of the issues
involved, the extent and nature of the matters
contested, the degree of the attorney's expertise and
the value of his services to petitioner. Cf. Detlefs v.
Westfield, 104 N.J. Super. 447 (App. Div. 1969).
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[147 N.J. Super. at 134-35 (footnote omitted). 3]
A judge of compensation, subject to the twenty-percent cap, may adjust a fee
award and the proportional allocation thereof depending on the judge 's
assessment of reasonableness. Quereshi v. Cintas Corp., 413 N.J. Super. 492,
499-500 (App. Div. 2010). Indeed, Garage acknowledges in its merits brief
that section 64
makes clear that the award of an attorney's fee in
every case must satisfy two requirements: 1) it must
be reasonable, and 2) it must not exceed [twenty
percent] of the judgment. In other words, as the
Appellate Division has held on many occasions, the
judge of compensation has the discretion to award a
reasonable fee up to [twenty percent] of the judgment.
Considering that both the 450-week period and the table methods of
calculation are subject to the vagaries of death and remarriage, we conclude
the table method is not unreasonable. Utilization of the table contemplates that
a lifetime award will be made to a surviving dependent spouse as required by
N.J.S.A. 34:15-13. Although Rule 1:13-5, which provides that the table "shall
be admissible in evidence as prima facie proof of the facts therein contained,"
3
Garage did not argue in its merits brief that the judge's counsel-fee award
was unreasonable because the judge did not properly consider the Gromack
factors, which also included consideration of undue delay by an employer in
the recognition of liability when allocating fees among the parties, 147 N.J.
Super. at 135-36. That issue is, therefore, not before us. In re Certification of
Need of Bloomingdale Convalescent Ctr., 233 N.J. Super. 46, 48 n.1 (App.
Div. 1989) (declining to decide an issue not briefed).
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does not govern compensation courts, see R. 1:1-1, the table is a scientific
tool, "derived from the National Vital Statistics Reports (NVSR)," for use in
determining "average life expectancies and predicted lifespan[s]," State v.
Zuber, 442 N.J. Super. 611, 627 (App. Div. 2015), rev'd on other grounds, 227
N.J. 422 (2017).
Bottom of Form
The NVSR are issued by the Centers for Disease
Control and Prevention (CDC). The CDC states that
"[t]he National Vital Statistics System is the oldest
and most successful example of inter-governmental
data sharing in Public Health[.]" The NVSR's "United
States Life Tables" are based on recent mortality
statistics, the most recent available census
information, and Medicare data.
[Id. at 627-28 (alterations in original) (footnote
omitted).]
It is reasonable, therefore, to use the table because it is designed to actuarially
calculate the amount of time over which a surviving spouse can expect to
receive benefits; in other words, it is based on the judgment amount calculated
using the spouse's projected lifespan. The 450-week period, on the other hand,
does not distinguish whether a surviving spouse is twenty-years old or sixty-
years old. The calculation under that method will always use an expectancy of
approximately 8.6 years (450 months) no matter the age of the recipient.
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In affirming, we do not hold that use of the 450-week method is
improper. We previously upheld a fee award based on that method because it
was "not manifestly inadequate or the product of an abuse of discretion"; we
declined to address whether, after an award of dependent benefits, a
petitioner's life expectancy must be considered in determining counsel fees.
Cruz v. Cent. Jersey Landscaping, Inc., 393 N.J. Super. 34, 51 (App. Div.
2007), rev'd on other grounds, 195 N.J. 33 (2008). We determine only that the
use of the table method was a reasonable option utilized by the judge. We
recognize that using the table method will, in many cases, increase the
potential size of a fee award. We thus caution against a reflexive application
of a twenty-percent award without full analysis.
Garage now advances, contrary to its position that the 450-week method
is the proper tool for calculating counsel fees, that "a more accurate and
arguably more reasonable method of calculating the judgment upon which
dependency benefits are to be paid, and upon which the attorney fee should be
calculated": "base the judgment on the amount of accrued benefits due at the
time of entry of the judgment." Although we observe that this method bears
no relation to an award that is designed to be paid over a surviving spouse's
lifetime and is subject not only to the same death and remarriage factors as the
other methods but also to the caprice of the time it takes to resolve a case,
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Garage concedes it did not request the judge of compensation to "employ this
alternative method of calculation." We will not consider the issue on appeal.
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
"[W]e will modify or set aside an attorney's fee awarded by the
compensation judge only if it is manifestly excessive or inadequate and thus
involves an abuse of discretion." Gromack, 147 N.J. Super. at 137. Inasmuch
as: Garage does not challenge the judge's findings as to the Gromack factors;
the award – less than twenty percent of the judgment – is not manifestly
excessive; and the judge utilized a reasonable method of calculation, we
decline to alter the award.
Affirmed.
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