Dependency benefits – Comparing New York and New Jersey

New Jersey:

When injury and death occur simultaneously, death benefits are calculated according to the decedent’s wages at the time of his death. Cruz v. Central Jersey Landscaping, Inc. 195 N.J. 33, 39 (2008). Claims for accidental and occupational injuries should generally be treated the same way as a death claim. N.J.S.A. § 34:15-35. Wilson v. Port Authority, 175 N.J. 82, 89 (2003).

Where there are multiple carriers over the period of employment during which an occupational disease arises, the carrier during whose coverage the disease was disclosed is held liable. Bond v. Rose Ribbon & Carbon Mfg. Co., 42 N.J. 308, 311 (1964). Disclosure can occur by medical examination, by loss of physical function, or incapacity to work. Id.
When continued exposure, and not the natural progress of the disease, worsens an occupational disease after it is discovered, an award against a subsequent carrier is appropriate. Ort v. Taylor-Wharton Co. Div. of Harsco Corp. 47 N.J. 198, 206 (1996).

Disability and death are apportionable when the occupational disease is “fixed, arrested, and definitely measurable,” which means that the condition is obvious, diagnosed, and capable of measurement. Gulick v. H.M. Enoch, 280 N.J. 96, 110 (1995). This means that if, after acquiring an occupational disease that is obvious, diagnosed, and capable of measurement, a claimant continues to be exposed to a hazard and that disease results in death, it can be apportioned among carriers from the time the disease was disclosed.

New York:

Workers’ Compensation Law § 16 authorizes death benefits when a work-related injury or disease “contributes to death.” Matter of Hroncich v. Con Edison, 21 N.Y.3d 636, 639 (2013). Under Workers’ Compensation Law § 39, if an employee dies and his death is caused by a disease due to the nature of his employment, his dependents are entitled to compensation.

Workers’ Compensation Law § 44 indicates that, for occupational diseases, the entirety of the compensation due to a decedent’s dependents is recoverable from the employer who last employed the employee in a position during which the disease was contracted and where the disease was in the nature of the employment. See also Lawton v. Port of New York Authority, 276 A.D. 81, 87 (N.Y. App. Div. 1949); Cammarata v. Caldwell & Cook, Inc., 19 A.D.3d 884, 885 (N.Y. App. Div. 2005).

However, if the employee contracted the disease while employed with another company, the last employer can appeal to the Board of Workers’ Compensation for apportionment among the employers who employed the decedent in such a manner. The carrier, individually, may not make the application for apportionment; this application can be made only by the employer or on the employer’s behalf. Lawton v. Port of New York Authority, 276 A.D. at 87 (N.Y. App. Div. 1949).

Where an injury or death is a “natural, unavoidable, and consequential result of [a] first accident,” the carrier that insured the employer at the time of the first accident bears the liability for the accident. McNaught v. Louris Amusement Corp., 270 A.D. 100, 102 (N.Y. App. Div. 1945) (citing Phillips v. Holmes Express Co., 190 A.D. 336, 336 (3d Department. 1919)).

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Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@loisllc.com