[Second Reprint]

 

SENATE, No. 1522

 

STATE OF NEW JERSEY

 

210th LEGISLATURE

 

INTRODUCED MAY 16, 2002

 

 

 

Sponsored by:

Senator RICHARD J. CODEY

District 27 (Essex)

Assemblyman JOSEPH V. EGAN

District 17 (Middlesex and Somerset)

Assemblyman JOSEPH R. MALONE, III

District 30 (Burlington, Mercer, Monmouth and Ocean)

Assemblyman NEIL M. COHEN

District 20 (Union)

 

Co-Sponsored by:

Senator Geist, Assemblymen Wisniewski, Doria, Ahearn, Diegnan, Assemblywoman Friscia, Assemblymen Guear, Chivukula, Caraballo, Green, Assemblywoman Greenstein, Assemblymen Eagler, Edwards, Assemblywoman Weinberg, Assemblymen Burzichelli, Blee, D'Amato, McKeon, Asselta and Conaway

 

 

 

SYNOPSIS

    Concerns workers' compensation for occupational disease claims and workers' compensation benefit rates for surviving dependents.

 

CURRENT VERSION OF TEXT

    As reported by the Senate Budget and Appropriations Committee on March 17, 2003, with amendments.

 

(Sponsorship Updated As Of: 1/13/2004)


An Act concerning workers' compensation for 1certain1 occupational disease claims and workers' compensation benefit rates for surviving dependents 1[and],1 amending R.S.34:15-13, 1[R.S.34:15-30 and R.S.34:15-32] supplementing Title 34 of the Revised Statutes1 and repealing R.S.34:15-33.

 

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

    1. R.S.34:15-13 is amended to read as follows:

    34:15-13. Except as hereinafter provided, in case of death, compensation shall be computed, but not distributed, on the following basis:

    a. For one [dependent, 50%] or more dependents, 70% of wages.

    b. [For two dependents, 55% of wages] (Deleted by amendment, P.L. , c. ).

    c. [For three dependents, 60% of wages] (Deleted by amendment, P.L. , c. ).

    d. [For four dependents, 65% of wages] (Deleted by amendment, P.L. , c. ).

    e. [For five or more dependents, 70% of wages] (Deleted by amendment, P.L. , c. ).

    f. The term "dependents" shall apply to and include any or all of the following who are dependent upon the deceased at the time of accident or the occurrence of occupational disease, or at the time of death, namely: husband, wife, parent, stepparents, grandparents, children, stepchildren, grandchildren, child in esse, posthumous child, illegitimate children, brothers, sisters, half brothers, half sisters, niece, nephew. Legally adopted children shall, in every particular, be considered as natural children. Dependency shall be conclusively presumed as to the decedent's spouse and to any natural child of a decedent under 18 years of age or, if enrolled as a full-time student, under 23 years of age, who was actually a part of the decedent's household at the time of the decedent's death. Every provision of this article applying to one class shall be equally applicable to the other. Should any dependent of a deceased employee die during the period covered by such weekly payments the right of such dependent to compensation under this section shall cease, but should the surviving spouse of a deceased employee remarry during such period and before the total compensation is paid, the spouse shall be entitled to receive the remainder of the compensation which would have been due the spouse had the spouse not remarried, or 100 times the amount of weekly compensation paid immediately preceding the remarriage, whichever is the lesser. The foregoing schedule applies only to persons wholly dependent, and in the case of persons only partially dependent, except in the case of the surviving spouse and children who were actually a part of the decedent's household at the time of death, 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 and the provision as to a minimum of 20% of the average weekly wage as set forth in subsection a. of R.S.34:15-12 shall not apply to such compensation. In determining the number of dependents, where the deceased employee was a minor, the number of persons dependent upon the deceased employee shall be determined in the same way as if the deceased employee were an adult, notwithstanding any rule of law as to the person entitled to a minor's wages.

    g. Compensation shall be computed upon the foregoing basis. Distribution shall be made among dependents, if more than one, according to the order of the Division of Workers' Compensation, which shall, when applied to for that purpose, determine, upon the facts being presented to it, the proportion to be paid to or on behalf of each dependent according to the relative-dependency. Payment on behalf of infants shall be made to the surviving parent, if any, or to the statutory or testamentary guardian.

    h. If death results from the accident or occupational disease, whether there be dependents or not, expenses of the last sickness of the deceased employee shall be paid in accordance with the provisions for medical and hospital service as set forth in R.S.34:15-15. In addition, the cost of burial and of a funeral, not to exceed $3,500 shall be paid to the dependent or other person having paid the costs of burial and the funeral. In the event that the dependent or other person has paid less than $3,500 for the costs of burial and the funeral, the dependent or other person shall be reimbursed in the amount paid and, if the costs of burial and the funeral exceed the amount so paid, the difference between the said amount and $3,500 or so much thereof as may be necessary to pay the cost of burial and the funeral, shall be paid to the undertaker or embalmer or the dependent or other person having paid the costs of burial and the funeral. In the event that no part of the costs of burial and the funeral have been paid, the amount of such cost of burial and the funeral, not to exceed $3,500, shall be paid to the undertaker or embalmer or the dependent or other person who is to pay the costs of burial and the funeral.

    i. In computing compensation to those named in this section, except husband, wife, parents and stepparents, and except as otherwise provided in this section, only those under 18 or over 40 years of age shall be included and then only for that period in which they are under 18 or over 40; provided, however, that payments to such physically or mentally deficient persons as are for such reason dependent shall be made during the full compensation period of 450 weeks.

    j. The maximum compensation in case of death shall be subject to the maximum compensation as stated in subsection a. of R.S.34:15-12 and a minimum of 20% of average weekly wages per week as set forth in subsection a. of R.S.34:15-12, except in the case of partial dependency as provided in this section. This compensation shall be paid, in the case of a surviving spouse, during the entire period of survivorship or until such surviving spouse shall remarry and, in the case of other dependents, during 450 weeks and if at the expiration of 450 weeks there shall be one or more dependents under 18 years of age, compensation shall be continued for such dependents until they reach 18 years of age, or 23 years of age while enrolled as a full-time student, at the schedule provided under [subsections] subsection a. [to e.] of this section.

(cf: P.L.1995, c.185, s.1)

 

    1[2. R.S.34:15-30 is amended to read as follows:

    34:15-30. When employer and employee have accepted the provisions of this article as aforesaid, compensation for personal injuries to or for death of [such] the employee by any compensable occupational disease arising out of and in the course of his employment, as hereinafter defined, shall be made by the employer to the extent hereinafter set forth and without regard to the negligence of the employer, except that no compensation shall be payable when the injury or death by occupational disease is caused by willful self-exposure to a known hazard or by the employee's willful failure to make use of a reasonable and proper guard or personal protective device furnished by the employer which has been clearly made a requirement of the employee's employment by the employer and which an employer can properly document that despite repeated warnings, the employee has willfully failed to properly and effectively utilize, provided, however, this latter provision shall not apply where there is such imminent danger or need for immediate action which does not allow for appropriate use of personal protective device or devices. The employee or the surviving dependents of the employee may obtain full compensation for injury or death by a compensable occupational disease from any employer or employers, if the employee was, in the course of employment with that employer or those employers, exposed to a deleterious substance which is a cause of the occupational disease, and it shall not be a defense to the claim that an employer was not the last employer or that the latency period for the exposure is not adequate.

(cf: P.L.1979, c.283, s.9)]1


    12. (New section) a. In the case of a claim for compensation for an occupational disease resulting in injury or death from an exposure to asbestos, if after due diligence, the standards for which shall be set forth by the Director of the Division of Workers' Compensation: (1) the workers compensation insurer of an employer, the employer, or the principals of the employer where the claimant was last exposed cannot be located; or (2) the employee making the claim worked for more than one employer, during which time the exposure to asbestos may reasonably be deemed to have taken place but the employer or employers where the petitioner was last exposed cannot reasonably be identified, an application shall be made to the 2[Second Injury Fund] uninsured employer's fund2 , created pursuant to 2[R.S. 34:15-95] section 10 of P.L.1966, c.126 (C.34:15-120.1)2 , and any award by a judge of compensation shall be payable from the fund. For the purposes of this section "occupational disease resulting in injury or death from an exposure to asbestos" means asbestosis or any asbestos-induced cancer, including mesothelioma.

    b. In the case of any claim paid by the 2[Second Injury Fund] uninsured employer's fund2 pursuant to this section, the fund shall have the right of subrogation against (1) any insurer or employer identified as liable as set forth under the provisions of subsection a. of this section; or (2) against the stock workers' compensation security fund, or the mutual workers' compensation security fund, if an insolvent insurer is determined to be liable 2; or (3) against the New Jersey Self-Insurers Guaranty Association if an insolvent self-insurer is determined to be liable2.

    c. The fund shall have a lien pursuant to R.S.34:15-40 against any award received by the claimant from a third party resulting from the exposure to asbestos.

    d. Compensation shall be based on the last date of exposure, if known, or if the last date of exposure cannot be known, the judge shall establish an appropriate date.1

    2e. To ensure sufficient funding for the payment of claims under this section, the State Treasurer shall, within 30 days following the effective date of P.L. , c. (C. ) (now pending before the Legislature as this bill) and upon request of the Commissioner of Labor, transfer an amount not to exceed $500,000 from the Second Injury Fund to the uninsured employer's fund. At the end of the first calendar quarter immediately following that effective date and at the end of each calendar quarter thereafter, the State Treasurer shall, upon request of the Commissioner of Labor, transfer from the Second Injury Fund to the uninsured employer's fund an amount estimated by the Commissioner of Labor to be required by the uninsured employer's fund for payment of such claims for the next following calendar quarter. Amounts transferred from the Second Injury Fund under the provisions of this subsection shall be included in the determination of surcharges and assessments for the Second Injury Fund and shall be excluded from the determination of surcharges and assessments for the uninsured employer's fund.

    f. The Commissioner of Labor shall, within 180 days following the effective date of P.L. , c. (C. ) (now pending before the Legislature as this bill), promulgate rules and regulations as necessary to effectuate the purposes of that act.2

 

    1[3. R.S.34:15-32 is amended to read as follows:

    34:15-32. The compensation payable for death or disability total in character and permanent in quality resulting from an occupational disease shall be the same in amount and duration and shall be payable in the same manner and to the same persons as would have been entitled thereto had the death or disability been caused by an accident arising out of and in the course of the employment, except that for any employee or dependent who is not entitled to receive special adjustment benefits pursuant to section 1 of P.L.1980, c.83 (C.34:15-95.4):

    a. In the case of disability total in character and permanent in quality which manifests itself after the last date of exposure with the liable employer, the weekly benefit amount shall be calculated as if the employee had continued working until the date of manifestation, and be based on the amount that the employee's weekly wage would have been at the time of manifestation, which shall be determined by increasing the employee's weekly wages received prior to the last date of exposure with the liable employer by the percentage increase in the average weekly wage for all workers covered by the "unemployment compensation law" (R.S.43:21-1 et seq.) from that last date of exposure to the date of manifestation.

    b. In the case of death from occupational disease which occurs after the last date of exposure with the liable employer, the weekly benefit amount shall be calculated as if the employee had continued working until the date of death, and be based on the amount that the employee's weekly wage would have been at the time of death, which shall be determined by increasing the employee's weekly wages received prior to the last date of exposure with the liable employer by the percentage increase in the average weekly wage for all workers covered by the "unemployment compensation law" (R.S.43:21-1 et seq.) from that last date of exposure to the date of death.

    In determining the duration of temporary and permanent partial disability, either or both, and the duration of payment for the disability due to occupational diseases, the same rules and regulations as are now applicable to accident or injury occurring under this article shall apply, except that in the case of an occupational disease which manifests itself after the last date of exposure with the liable employer, the weekly benefit amount shall be calculated as if the employee had continued working until the date of manifestation, and be based on the amount that the employee's weekly wage would have been at the time of manifestation, which shall be determined by increasing the employee's weekly wages received prior to the last date of exposure with the liable employer by the percentage increase in the average weekly wage for all workers covered by the"unemployment compensation law" (R.S.43:21-1 et seq.) from that last date of exposure to the date of manifestation.]1

 

    1[4.] 3.1 R.S.34:15-33 is repealed.

 

    1[5.] 4.1 This act shall take effect immediately.