Vaccaro v. Whitman

14 A.2d 536, 18 N.J. Misc. 478, 1940 N.J. Misc. LEXIS 75

• Court: New Jersey Department of Labor Workmen's Compensation Bureau
• Decided: July 19, 1940
• Status: Published

Opinion

In the case sub judice two questions present themselves for determination.

First: Amount of weekly wage.

Second: Distribution of the compensation payable.

As to the question of wages. The only definite testimony introduced at, the trial and the only testimony that could be given any credence was introduced by the respondent through Mr. Whitman.

lie testified that decedent was hired at the rate of $5 per day. That there were no specific number of days per week stipulated. The payroll records reflect that decedent worked from one to seven days per week. Sunday work was rare but on several occasions he did work on Saturday.

R. S. 34:15-37 (N. J. S. A. 34:15-37), under caption of “Wages” provides as follows:

“In any case the weekty wage shall be found by multiplying the daily wage by five, or if the employe worked a greater proportion of the week regularly, then by five and one-half, six, six and one-half or seven, according to the customary working days constituting an ordinary week in the character of work involved.”

From the testimony as well as the nature and character of work involved, I am of the opinion that six days would constitute an ordinary week and am holding that compensation should be based upon a wage of $30 per week.

As to dependency. Decedent left a widow and son, aged twelve as well as an illegitimate child by one Filomeno Stumpo who has filed a petition in his behalf alleging dependency.

The respondent admits the legal dependency of all parties and does not contest their rights to compensation as provided by the act but do request the bureau to apportion the amount due amongst the dependents.

R. S. 34:15-13 (N. J. S. A. 34:15-13), under caption “Distribution of Compensation,” reads in part:

“Distribution shall be made among dependents if more than one, according to the order of the Workmen’s Compensation Bureau, 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.”

Dependents defined include wife, children and illegitimate children.

The term “relative dependency” determines the manner in which the distribution is to be made.

Eelative, as defined in volume two Century Dictionary, is “having or standing in, a certain relation.” “Correspondent or proportionate (as, value is relative to demand); also, considered in relation to each other or one another or to something else or comparative.”

In this instance, the relative dependency of each is under the act of an equal status. Their classification is that of full dependents. They must share equally in the distribution.

Based upon the rate of $30 per week for three dependents, the weekly compensation payments is forty-five per cent, of same or $13.50 of which two-thirds is payable to the widow and her son Demetrio and one-third to Eilomeno Stumpo as guardian to Cosimo Yaccaro. Such payments to be made until Demetrio becomes sixteen when the weekly compensation payments are then computed upon forty per cent, of $30 per week or twelve dollars ($12) per week. This amount is divided equally between the widow and the guardian of the child until the expiration of 300 weeks from the date of death when the weekly payments are based upon thirty-five per cent, of $30 per week or $10.50 per week which is to be paid to the guardian of the child until he reaches the age of sixteen.

Death of any of the interested parties or remarriage of the widow will make necessary a modification of this order.

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John C. Wegnee,

Deputy Commissioner.