Kibble v. Weeks Dredging & Construction Co.

735 A.2d 1142, 161 N.J. 178, 1999 N.J. LEXIS 1001

• Court: Supreme Court of New Jersey
• Decided: August 9, 1999
• Status: Published

Opinions

The opinion of the Court was delivered by

STEIN, J.

The critical issue in this appeal is whether a worker who settles his or her workers’ compensation claim pursuant to N.J.S.A. 34:15-20 (Section 20) simultaneously can waive the future right of his or her spouse to assert a statutory claim for dependency benefits in the event of the worker’s death. See N.J.S.A. 34:15-13. The Division of Workers’ Compensation held that the worker’s waiver of his spouse’s dependency claim was binding on his widow. In an unpublished opinion the Appellate Division affirmed. We granted certification, 157 N.J. 541, 724 A.2d 801 (1998), and now reverse.

I

Carl Kibble was employed by respondent Weeks Dredging & Construction Co. from September 1980 until March 1984 as a welder/torch cutter. He had worked for other employers in the same capacity from the mid-1950s until 1980. During the course of that employment, Kibble was exposed to chromium, nickel, and other welding fumes.

A chest x-ray taken in 1977 revealed that he was suffering from pneumonoconiosis, a lung condition caused by the retention of dust in the lungs. In 1984, he sought treatment from his family physician, Dr. James R. Robin, for a chronic cough. Dr. Robin diagnosed Kibble with pulmonary fibrosis and concluded that that condition had been caused by Kibble’s exposure to welding fumes. Dr. Robin also concluded that Kibble was “totally disabled with welder[’]s lung,” and advised him that he “absolutely should not work in this field again.”

In June 1984, Kibble filed a workers’ compensation claim against Weeks and seven other prior employers, seeking benefits for “permanent disability to lungs, internal and nervous system.” A doctor who evaluated Kibble in connection with his claim concurred with Dr. Robin’s conclusion that Kibble was totally disabled and found that because of his exposure to welding fumes he was at an “increased risk” of developing lung cancer in the future. In January 1989, Kibble settled his compensation claim pursuant to Section 20 for a lump-sum payment of $36,000.¹ As part of the prevailing practice in the Division of Workers’ Compensation (Division), the settlement was placed on the official record of the proceedings and approved by the judge of compensation. Regrettably, the transcript of those proceedings was lost or destroyed. The pre-printed settlement form that apparently was used routinely by the Workers’ Compensation Court in processing Section 20 settlements stated that the settlement “has the effect of a dismissal with prejudice, being final as to all right[s] and benefits of the petitioner and the petitioner’s dependents and is a complete and absolute surrender and release of all their rights arising out ofthis/these claim(s).” (Emphasis supplied).

Kibble and his wife Mary (petitioner) also had filed suit in federal court alleging claims based on products liability and failure to provide a safe workplace. That case settled prior to the Section 20 settlement. The release in the third-party action explicitly waived any and all claims for injury “including pulmonary fibrosis or any other illness or injury yet undiagnosed, past, present or future ... and all future claims for wrongful death ... caused by any occupational disease, diagnosed, or yet undiagnosed, past, present, or future.”

In November 1993, almost four years after the Section 20 settlement, Kibble was diagnosed with lung cancer. He died on March 5, 1994. Kibble’s death certificate lists his cause of death as “lung cancer [and] pneumoconiosis.” In April 1994, petitioner filed a dependency claim, pursuant to N.J.S.A. 34:15-13, alleging that her husband’s lung cancer and death were caused by his occupational exposure to welding fumes. The Division dismissed petitioner’s claim, finding that “the intention of the parties [in the Section 20 settlement] was to make a total settlement of all claims related to lung problems, including dependency claims.” The Appellate Division affirmed that judgment, finding ample support in the record to sustain the Division’s conclusion.

Petitioner argues that Section 20 settlements do not extinguish future causes of action, such as those for dependency benefits and claims for diseases not manifest at the time of settlement. She maintains that her husband’s original claims related solely to pulmonary fibrosis, and that the lung cancer that caused his death did not manifest until four years after the Section 20 settlement. Thus, she argues that because her dependency claim is based on the cancer that had not manifested itself at the time of the Section 20 settlement, it is not barred. She also contends that even if dependency claims can be waived in a Section 20 settlement, the evidence in this case failed to establish that the parties intended to waive dependency benefits.

Respondent counters that Kibble’s original claim was for “permanent disability to the lungs, internal and nervous systems” and was not restricted to pulmonary fibrosis. It maintains that the scope of a Section 20 settlement must be derived from the intent of the parties.

The New Jersey State AFL-CIO, New Jersey State Industrial Union Council, AFL-CIO, District 15 of The International Association of Machinists and Aerospace Workers, AFL-CIO, and New Jersey Advisory Council on Safety and Health, as amici curiae, argue in support of the petitioner’s position that Section 20 settlements should not extinguish future dependency claims unless “such claims arise from the same condition that was the basis for the settlement of the compensation claim.” The amici argue that because the cancer was not manifest when the Section 20 settlement was approved by the judge, the dependency claims based on cancer were not waived.

After argument of this appeal, the Court requested and the parties submitted supplemental briefs on whether waivers of dependency claims in connection with Section 20 settlements were statutorily authorized and, if so, what proofs should be required to establish the validity of such waivers.

II

A

Separate from and in addition to the right of workers to receive compensation benefits under the Workers’ Compensation Act (Act or WCA), N.J.S.A. 34:15-1 to -128, in the event of permanent partial or total disability caused by a compensable accident or occupational disease, the Act provides benefits to dependents of deceased workers. Accordingly, if an accident or occupational disease that arises out of and in the course of employment causes or contributes to the cause of the employee’s death, the Act requires payment of benefits to the workers’ dependents. N.J.S.A. 34:15-13. Our cases emphasize that “[t]he rights of dependents to compensation are independent and separate rights flowing to them from the [WCA] itself. They are not rights to which [dependents] succeed as the representatives of the [deceased employee].” Eckert v. New Jersey State Highway Dep’t, 1 N.J. 474, 480, 64 A.2d 221 (1949); accord McAllister v. Board of Educ., 42 N.J. 56, 59-60, 198 A.2d 765 (1964); Luszcs v. Seaboard By-Products Co., 101 N.J.L. 170, 173, 127 A. 212 (E. & A.1925); Adams v. Woodbridge Sanitary Pottery Corp., 174 N.J.Super. 284, 287-88, 416 A.2d 422 (App.Div.1980); Roberts v. All Am. Eng’g Co., 104 N.J.Super. 1, 7, 248 A.2d 280 (App.Div. 1968), certif. denied, 53 N.J. 351, 250 A.2d 753 (1969). Professor Larson succinctly describes the separate and independent status of dependency claims:

The dependent’s right to death benefits is an independent right derived from statute, not from the rights of the decedent. Accordingly, death benefits are not affected by compromises or releases executed by decedent, or by an adverse holding on decedent’s claim, or by claimant’s failure to claim within the statutory period.

[2 Arthur Larson, The Law of Workmen’s Compensation § 64.00 (1989).]

Only a small minority of states permits a settlement of a compensation claim by a worker during his or her lifetime to preclude a claim for future death benefits by that worker’s dependents. In the vast majority of states, a dependent’s right to seek worker’s compensation death benefits is not affected by a lump-sum settlement agreement between an injured worker and that worker’s employer. Deborah Tauber, A Proposal to Resuscitate the Abrogated Rights of Dependents Under Section 20 of the New Jersey Workers’ Compensation Act, 20 Rutgers L.J. 513, 519 n.30 (1989). The majority rule is based on the “sound theory that the dependents’ rights are not derived from the employee’s rights, but instead, are separate and independent rights of the dependent.” Ibid.; accord Lewis v. Connolly Contracting Co., 196 Minn. 108, 264 N.W. 581, 586 (1936); Industrial Comm’n v. Davis, 126 Ohio St. 593, 186 N.E. 505, 505 (1933); Hotel Claridge Co. v. Blank, 169 Tenn. 575, 89 S.W.2d 758, 760 (1936); Laird v. Vermont Highway Dep’t, 112 Vt. 67, 20 A.2d 555, 561 (1941). In those jurisdictions adopting the majority view, “[a] unilateral settlement or release by a worker of his or her own claims does not bar the surviving dependent’s claim even if the release signed by the worker explicitly purports to release the dependent’s claim.” Buchanan v. Kerr-McGee Corp., 121 N.M. 12, 908 P.2d 242, 245 (Ct.App.) (emphasis supplied), cert. denied, 120 N.M. 715, 905 P.2d 1119 (1995).

The New Mexico Supreme Court in Buchanan, explained the majority rule:

The WCJ’s decision presupposes that Worker’s valid release is also effective to release Claimant’s cause of action as a surviving dependent under the Occupational Disease Law. We disagree with this premise and the conclusion that follows from it. We hold that Claimant, as Worker’s widow and dependent, has independent statutory rights to death benefits which arise upon Worker’s death, and Claimant is not bound by the Release. The claim, of a dependent arising from the death of a worker is a new and separate claim and, is not derivative of the worker’s claim. A unilateral settlement or release by a worker of his or her own claims does not bar the surviving dependent’s claim even if the release signed by the worker explicitly purparts to release the dependent’s claim, as was the case here. Our holding is in accord with the great weight of authority from other jurisdictions.

[Id. at 245 (emphasis supplied) (citations omitted).]

Professor Larson observes that a

striking consequence of the independent status of dependency rights is the rule, accepted by the majority of jurisdictions, that an adverse decision on the merits of a claim by the employee while he was alive does not bar a dependency claim under the doctrine of res judicata, since the parties and rights involved are different, and since the dependent is not in privity with the injured employee as to the rights asserted by him.

[Larson, supra, § 64.14.]

Prior to 1980, there was no provision in the WCA, that permitted a worker to settle a compensation claim with his or her employer. However, that did not prevent parties from entering into “surreptitiously negotiated” settlements whereby the worker would agree to dismiss his or her claim voluntarily and with prejudice in exchange for a subsequent payment from the employer. See Tauber, supra, 20 Rutgers L.J. at 515.

That informal, out-of-court settlement procedure was found to be “contrary to public policy” by the Appellate Division in Brown v. General Aniline & Film Corp., 127 N.J.Super. 93, 95, 316 A.2d 478, aff'd o.b., 65 N.J. 555, 325 A.2d 689 (1974). In Broum, the injured worker testified before a judge of compensation that “he could not prove a compensable accident, and requested a dismissal of his petitions with prejudice against ever reopening his claims.” Id. at 94, 316 A.2d 478. After the judge dismissed the worker’s claims, the employer paid the worker $20,000. Following the worker’s death, his widow filed dependency petitions, which were dismissed by the judge of compensation on the theory that the widow was “collaterally estopped from relitigating decedent’s claim which had been dismissed with prejudice because a compen-sable claim had not been proven.” Id. at 95, 316 A.2d 478. The Appellate Division reversed, holding that the WCA precluded the out-of-court settlement. Relying on Larson, supra, the court held that because dependency benefits are “separate and distinct” from the benefits due to an injured worker, “nothing that the decedent does, or attempts to do during his lifetime, can deprive dependents of their statutory benefits.” Id. at 96, 316 A.2d 478.

In 1980, as part of extensive revisions to the WCA, the Legislature amended Section 20 to include a provision allowing lump-sum settlements between employers and employees. L. 1979, c. 283, § 8. That amendment apparently was enacted as a partial response to the Appellate Division’s holding in Brown, supra:

[Section 20] would benefit employers by ... clarifying the effect of the decision in Brown v. General Aniline by permitting compensation judges to enter an award approving settlement in matters where causal relationship, jurisdiction, dependency or liability are in issue, resulting in the payment of a lump sum having the effect of a dismissal of the petition and a complete surrender of any future right to compensation or other benefits arising out of that claim.

[Senate Labor, Industry & Professions Committee, Joint Statement to Senate Committee Substitute for S. Bill 802 and Assembly Committee Substitute for A Bill 810, Nov. 13,1979, at 2.]

In relevant part the amended Section 20 reads as follows:

[A] judge of compensation may with the consent of the parties, after considering the testimony of the petitioner and other witnesses, together with any stipulation of the parties, and after such judge of compensation has determined that such settlement is fail- and just under all the circumstances, enter “an order approving settlement.” Such settlement, when so approved, notwithstanding any other provisions of this chapter, shall have the force and effect of a dismissal of the claim petition and shall be final and conclusive upon the employee and the employee’s dependents, and shall be a complete surrender of any right to compensation or other benefits arising out of such claim under the statute.

[N.J.S.A. 34:15-20.]

For a Section 20 lump-sum settlement to be effective, the only statutory requirements are that the settlement be approved by the judge of compensation as “fair and just under all the circumstances,” and that the settling petitioner be represented by counsel. Ibid. The applicable regulations require that the terms of the settlement be entered on a prescribed form, that the employee, employer and compensation judge sign the form, and that the employee “be fully advised of all rights.” See N.J.A.C. 12:235-6.14. The regulations impose no other procedural requirements.

Since the adoption of the 1980 amendments there has been virtually no New Jersey case law considering the preclusive effect of Section 20 settlements on subsequently-filed dependency claims. That entire body of law consists of one unpublished Appellate Division opinion and a written opinion of the Division of Workers’ Compensation.

B

(1)

In Alfone v. Sarno, 87 N.J. 99, 432 A.2d 857 (1981), this Court was presented with an issue analogous to the primary issue in this appeal: whether a judgment in favor of a plaintiff in a personal injury suit precluded a subsequent action for wrongful death on behalf of that plaintiffs heirs. Noting that wrongful death actions create in a decedent’s beneficiaries rights independent of and distinct from those involved in the underlying personal injury claim, we held that the wrongful death action could be maintained provided there was no duplication of damages. Id. at 114-23, 432 A.2d 857. We recognized that that holding “may prevent insurance carriers from obtaining complete releases from all possible wrongful death claims, except perhaps by the inclusion in any such agreement of all persons who subsequently are determined to be wrongful death beneficiaries.” Id. at 123, 432 A.2d 857 (emphasis supplied).²

The analogy to Alfone is germane to our disposition of this appeal. Both a wrongful death claim sounding in negligence, N.J.S.A. 2A:31-1 to -6, and a workers’ compensation dependency claim, N.J.S.A. 34:15-13, are statutory causes of action with the same purpose: to compensate surviving dependents for the pecuniary losses resulting from death. Further, both causes of action are independent and distinct from the underlying claim of the injured party. See Alfone, supra, 87 N.J. at 107, 432 A.2d 857 (“New Jersey’s wrongful death statute created a new cause of action ‘beyond that which the deceased would have had if he had survived, and based on a different principle — a new right of action.’ ”) (quoting Cooper v. Shore Electric Co., 63 N.J.L. 558, 563, 44 A. 633 (E. & A. 1899)); Eckert, supra, 1 N.J. at 480, 64 A.2d 221 (holding that rights of dependents to compensation are independent and separate rights that are derived from WCA).

(2)

A loss of consortium, or per quod, claim is intended to compensate a person for the loss of a spouse’s “society, companionship and services due to the fault of another.” Wolfe v. State Farm Ins. Co., 224 N.J.Super. 348, 350, 540 A.2d 871 (App.Div.), certif. denied, 111 N.J. 654, 546 A.2d 562 (1988). Although a per quod, claim is derivative of the injured spouse’s personal injury cause of action, Tichenor v. Santillo, 218 N.J.Super. 165, 173, 527 A.2d 78 (App.Div.1987), “it is also independent, as the damages which may be awarded to the spouse pursuant to the per quod claim are clearly different from the damages which may be awarded to the spouse suffering the direct injury,” Hauck v. Danclar, 262 N.J.Super. 225, 227, 620 A.2d 479 (Law Div.1993).

A spouse’s cause of action for loss of consortium is not compromised by settlement of the underlying personal injury claim. Neely v. Kossove, 198 N.J.Super. 503, 507, 487 A.2d 788 (Law Div.1984). The court in Neely explained the rationale for its holding:

Logic dictates that the wife’s action [for loss of consortium] is vested in her and may not be dismissed unless authorized by her. The right ... can only be released by the wife who owns it. Were it otherwise, a husband who refuses to litigate for whatever reason could effectively eliminate a claim that is not possessed by him.

[Ibid.]

That holding appears to be consistent with the rule in the majority of jurisdictions. See, e.g., Gillespie v. Papale, 541 F.Supp. 1042 (D.Mass.1982) (applying Massachusetts law); Nealy v. Fluor Drilling Servs., Inc., 524 F.Supp. 789 (W.D.La.1981), aff'd, Stret-ton v. Penrod Drilling Co., 701 F.2d 441 (5th Cir.1983); Jones v. Elliott, 551 A.2d 62 (Del.1988); Huber v. Hovey, 501 N.W.2d 53 (Iowa); Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 585 N.E.2d 384 (1992); Buttermore v. Aliquippa Hosp., 522 Pa. 325, 561 A.2d 733 (1989); Whittlesey v. Miller, 572 S.W.2d 665 (Tex.1978).

That a spouse’s per quod claim survives the release of his or her spouse’s personal injury claim supports the view that a spouse must participate in and consent to a Section 20 settlement proceeding purporting to waive future workers’ compensation dependency benefits. Both a per quod claim and a claim for dependency benefits belong not to the injured party but to that party’s spouse. Accordingly, in both instances, the spouse alone has the authority to compromise the claim.

(3)

An analogy also may be drawn to cases involving court-ordered child-support payments. Similar to workers’ compensation dependency benefits, child support is designed to guarantee that the financial needs of unemancipated children are fulfilled following a divorce. Pascale v. Pascale, 140 N.J. 583, 590, 660 A.2d 485 (1995) (“Child support after divorce is necessary to ensure that a child’s basic needs are provided by his parents, who might otherwise neglect their responsibilities to maintain the child.”).

That the right to child support belongs to the child and not to the custodial parent is a fundamental principle of family law. Id. at 591, 660 A.2d 485; Martinetti v. Hickman, 261 N.J.Super. 508, 512, 619 A.2d 599 (App.Div.1993); ESB, Inc. v. Fischer, 185 N.J.Super. 373, 378, 448 A.2d 1030 (Ch.Div.1982). Accordingly, the right to child support “cannot be waived by the custodial parent.” Pascale, supra, 140 N.J. at 591, 660 A.2d 485 (quoting Martinetti, supra, 261 N.J.Super. at 512, 619 A.2d 599); see also ESB, Inc., supra, 185 N.J.Super. at 378, 448 A.2d 1030 (noting that child’s right to support “does not belong to the husband or wife to bargain with”). Our courts consistently have held that an agreement between parents purporting to waive child support does not affect the child’s right to those benefits. See Kopak v. Polzer, 4 N.J. 327, 332-33, 72 A.2d 869 (1950) (holding that mother’s agreement to release father from child-support obligations did not discharge father’s statutory obligation to support child); Martinetti, supra, 261 N.J.Super. at 512, 619 A.2d 599 (holding that consent order, whereby parents agreed that support would discontinue after two years, was not binding on child); Ryan v. Ryan, 246 N.J.Super. 376, 383, 587 A.2d 682 (Ch.Div. 1990) (“Agreements by parents [concerning child support] have no binding effect as to the welfare of the children”). The refusal by our courts to enforce releases of child-support obligations executed by a child’s parents is consistent with the principle that an injured worker should not be permitted to waive future dependency benefits without the informed consent of that worker’s dependents.

C

In the event the Court determines that dependency benefits may be waived in Section 20 settlements but that the Division’s longstanding procedures for effecting such settlements require modification, a related issue is whether petitioner would benefit from that holding.

“[T]he general rule applied in civil cases [is] that a new ruling shall apply to all matters that have not reached final judgment.” Coons v. American Honda Motor Co., 94 N.J. 307, 318-19, 463 A.2d 921 (1983) (Coons I) (citing Fox v. Snow, 6 N.J. 12, 14, 76 A.2d 877 (1950)), reh’g granted, 96 N.J. 419, 476 A.2d 763 (1984) (Coons II), cert. denied, 469 U.S. 1123, 105 S.Ct. 808, 83 L.Ed.2d 800 (1985). Further, in the interest of justice and fundamental fairness this Court repeatedly has rewarded litigants who challenge existing law by applying a new rule of law to those successful litigants, despite otherwise applying its decision only prospectively. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 449, 625 A.2d 1110 (1993); Devins v. Borough of Bogota, 124 N.J. 570, 580, 592 A.2d 199 (1991); Spiewak v. Bd. of Educ., 90 N.J. 63, 83, 447 A.2d 140 (1982); see also Coons II, supra, 96 N.J. at 436, 476 A.2d 763 (Garibaldi, J., dissenting) (“It has long been the position of this Court that ‘fundamental fairness’ compels that ‘champions of the cause’ should be rewarded for their effort and expense in challenging existing law.”). That “limited prospective approach” is motivated by the related policies of providing an incentive to litigants to challenge existing law and of rewarding successful litigants for their efforts and expenses. Fischer v. Canario, 143 N.J. 235, 246, 670 A.2d 516 (1996); Ramirez v. Amsted Indus., Inc., 86 N.J. 332, 357, 431 A.2d 811 (1981); see also Darrow v. Hanover Township, 58 N.J. 410, 420, 278 A.2d 200 (1971) (“[P]urely prospective rulings do not provide any inducement for litigants to challenge common law doctrines.”).

The Supreme Court of California, in a case involving facts similar to these, invalidated a standard form signed by an employee settling a workers’ compensation claim that purported to waive dependency benefits. That court, however, was firmly of the view that its holding should be applied for the benefit of the widow that challenged the waiver. In Sumner v. Workers’ Compensation Appeals Bd., 33 Cal.3d 965, 191 Cal.Rptr. 811, 663 P.2d 534 (1983), the employee signed a standard release form that waived “all claims and causes of action, whether now known or ascertained, or which may hereafter arise or develop as a result of said injury, including any and all liability ... to the dependents, heirs, executors, representatives, administrators or assigns of said employee.” Id. 191 Cal.Rptr. 811, 663 P.2d at 537. Following the employee’s death from a work-related condition, his wife filed a claim for death benefits. The workers’ compensation judge dismissed the claim based on the language in the release signed by the employee.

Although the Supreme Court of California agreed that an employee may, as part of a settlement of a workers’ compensation claim, compromise his dependents’ right to death benefits, the court reinstated the dependency claim. Observing that the release form failed to refer expressly to death benefits, the court found that “a layman executing that form might be unaware of the fact that he was releasing any claim of his spouse or children to such benefits.” Id. 191 Cal.Rptr. 811, 663 P.2d at 539. The court noted that in an earlier decision it had instructed the Workers’ Compensation Appeals Board (Board) to revise its settlement form and procedure to better protect dependents against inadvertent or unwise releases of dependency claims, but that the Board had failed to comply. Id. 191 Cal.Rptr. 811, 663 P.2d at 535. Accordingly, the court declared that the standard settlement form would no longer be accepted, and directed the Board to revise the form to include “clear and non-technical language” indicating that the waiver includes a surrender of the employee’s dependents’ right to death benefits. The court declined to apply its holding retroactively, recognizing the potential burden on the workers’ compensation system. However, the court gave the benefit of its holding to the petitioner “in recognition of her service in bringing the matter to our attention.” Id. 191 Cal.Rptr. 811, 663 P.2d at 540.

Ill

We are persuaded that the 1980 amendment to Section 20 was intended to modify Brown v. General Aniline, supra, 127 N.J.Super. 93, 316 A.2d 478, to permit employers to enter into settlements pursuant to Section 20 that would result in a compromise of the employee’s compensation claim and also constitute a waiver of the dependency claims of the employee’s spouse and children. However, in our view the Legislature did not intend to diminish the separate and independent status of the dependency claim, Eckert, supra, 1 N.J. at 480, 64 A.2d 221, by allowing the employee to waive it unilaterally. Accordingly, we hold that in all future Section 20 settlements in which the parties contemplate waiver of dependency claims in the event the employee’s death occurs as a result of the injuries or conditions encompassed by the employee’s compensation claim, the Division must be satisfied that the spouse, other adult dependents, and any minor dependents (whose interests ordinarily will be represented by the employee’s spouse) join in the waiver of future dependency claims. As a general rule, we anticipate that such waiver by the spouse (and other dependents) will occur on the record of the Division’s Section 20 settlement proceedings, and will be preceded by an adequate explanation by the Judge of Workers’ Compensation of the preclusive effect that the Section 20 settlement will have on any potential dependency claims. The Division should adopt regulations that will specify the procedures to be followed in Section 20 settlements that involve waivers of dependency claims, and should make appropriate revisions to its pre-printed form to take into account the need for consent to such waivers by spouses and other adult dependents. In general, we leave to the Division the responsibility for adopting and implementing procedures consistent with our holding, but we require that in each such case the Division ensure that a spouse’s or other dependent’s waiver of dependency benefits is given knowingly, intelligently and voluntarily.

Under our precedents, and in the context of the Division’s longstanding past practice, the principle that a spouse or other adult dependent must knowingly, intelligently and voluntarily waive dependency benefits shall have the effect of a new rule of law for purposes of retroactivity analysis. For a holding to constitute a new rule of law there must be a ‘“sudden and generally unanticipated repudiation of a long-standing practice.’ ” State v. Afanador, 151 N.J. 41, 58, 697 A.2d 529 (1997) (quoting State v. Cupe, 289 N.J.Super. 1, 12, 672 A.2d 1233 (App.Div.), certif. denied, 144 N.J. 589, 677 A.2d 761 (1996)). Another formu lation is that “there must be ‘some appreciable past from which the [new] rule departs.’ ” State v. Purnell, 161 N.J. 44, 53, 735 A.2d 513 (1999) (quoting Afanador, supra, 151 N.J. at 58, 697 A.2d 529); see also Stafford v. Stafford Township Zoning Bd. of Adjustment, 154 N.J. 62, 74, 711 A.2d 282 (1998) (concluding that Court’s holding requiring applicants for non-conforming use certification to comply with notice to adjoining landowner provisions of Municipal Land Use Law constituted new rule of law). We are satisfied that our holding constitutes a substantial and significant departure from the Division’s past practice and appropriately should be regarded as a new principle of law for retroactivity purposes.

Applying the standards we described in State v. Knight, 145 N.J. 233, 251, 678 A.2d 642 (1996), we will apply our holding only prospectively, except that petitioner, who successfully litigated the issue, shall receive the benefit of our holding. “‘Fundamental fairness’ compels that ‘champions of the cause’ should be rewarded for their effort and expense in challenging existing law.” Coons II, supra, 96 N.J. at 436, 476 A.2d 763 (Garibaldi, J., dissenting). Although no evidence in the record suggests that petitioner was fully informed of and consented to the waiver of her dependency benefits, on remand to the Division respondent may move for a hearing on that issue if it can demonstrate to the Division’s satisfaction that there exists a genuine factual dispute on the question of petitioner’s actual consent to the waiver.

Because of our holding, resolution of the issue that occupied the lower courts — whether Kibble intended to waive his wife’s future dependency claim when he entered into his Section 20 settlement — is unnecessary to our disposition of this appeal. That issue was vigorously contested before us, respondent contending that no purpose would be served by its consent to the Section 20 settlement unless dependency claims were waived; and petitioner contending that that settlement was intended only to compromise Bubble’s claims based on pneumonoconiosis and pulmonary fibrosis, and not intended to affect claims based on the lung cancer that Kibble contracted years later. Because the Division’s record is no longer available, resolution of the issue is unusually difficult. We note, however, that in 1989, when the settlement was effected, petitioner was sixty-years old with a life expectancy exceeding twenty-two years, and that her annual dependency benefit would exceed $13,000. As a matter of simple economics, a lump-sum settlement of $36,000 that purports to waive annual dependency benefits of over $13,000 per year for the remainder of the life of the worker’s wife, at a time when the worker allegedly was likely to develop cancer from his occupational pulmonary exposure, is suspect. We note that Kibble could have insisted on an adjudication of his right to compensation benefits and, had he prevailed, no waiver of dependency benefits would have occurred. In any event, that economic evaluation underscores our conviction that in the future only a knowing, informed and voluntary waiver of dependency benefits by a spouse or other dependent will be valid.

Finally, we note that if respondent ultimately is required on remand to pay dependency benefits to petitioner, and if petitioner’s right to sue for wrongful death benefits had not been released, then respondent could have been “subrogated to the rights of the widow ... to assert a claim against the third-party tortfea-sor under the Death Act.” Roberts, supra, 104 N.J.Super. at 8, 248 A.2d 280. However, petitioner released her right to sue for wrongful death as a condition of settlement of decedent’s third-party action. Significantly, no provision of the Act conditions her right to seek dependency benefits on her preservation of her wrongful death claim for the employer’s benefit. In Roberts, supra, the employee’s net recovery from his third-party action exceeded the employer’s liability under the Act for compensation and dependency benefits combined, and the employer contended that that recovery by the employee barred his widow’s dependency claim. Rejecting that contention the Appellate Division observed that “[sjince the widow and children had no legal rights in the fund created by the employee’s third-party action, the employer had no right to be subrogated to any part of this fund by way of reimbursement therefrom for any dependency benefits made to the widow and children.” Id. at 9, 248 A.2d 280. Similarly, the record before us does not indicate that any portion of the settlement of the third-party action was paid directly to petitioner to compensate her for her release of the right to institute a -wrongful death claim. Accordingly, as in Roberts, allowing petitioner on this record to seek dependency benefits “does not effectuate ‘a double recovery.’” Ibid. If the remand proceedings disclose otherwise, appropriate adjustments may be sought.

IV

We reverse the judgment of the Appellate Division and remand the matter to the Division of Workers’ Compensation for further proceedings consistent with this opinion.

1 If Kibble was totally and permanently disabled from his occupational exposure to chromium and nickel fumes, he would have been entitled to 450 weeks of compensation at his weekly rate of $255, totaling $114,750. Based on the provisions of N.J.S.A. 34:15-40, Kibble's settlement of his third-party federal court action reduced Weeks' and other respondents' potential obligations of $114,750 to about $38,250. The payment of $36,000 in the Section 20 settlement apparently was a compromise of the potential $38,250 that would have been payable if Kibble’s workers' compensation claims had been successfully litigated.

2 Subsequent to our decision in Alfone, the Appellate Division held that a release signed only by the plaintiff in connection with the settlement of a medical malpractice claim barred a later wrongful death action by the plaintiff’s heirs. Garde v. Wasson, 251 N.J.Super. 608, 598 A.2d 1253 (1991), certif. denied, 127 N.J. 560, 606 A.2d 371 (1992). We disapprove of the decision in Garde to the extent that it is inconsistent with our holding in Alfone.