How Should Attorney Fees be Calculated in a Spouse's Death Benefits Claim for Workers' Compensation?


In the case of Collas v. Raritan River Garage, Inc., the Appellate Court was faced with the issue of how to calculate counsel fees on a claim for dependency benefits. Lillian Collas was the surviving spouse of a worker who passed away from an occupational disease. She received dependent benefits under N.J.S.A. 34:15-13.

The Judge awarded counsel fees based on Ms. Collas' life expectancy. The Judge looked to a 1995 amendment to N.J.S.A. 34:15-13(j). That amendment provided compensation shall be paid to a surviving spouse "during the entire period of survivorship."

The period of survivorship was based on the table of mortality and life expectancy included in the appendices to the New Jersey Rules of Court. The respondent appealed the Judge's calculation for the counsel fee. The respondent argued that the fee should be based on the 450-week period of total permanent benefits under N.J.S.A 34:15-12(b), and argued that the use of the 450-week time period was reasonable to calculate total disability benefits and benefits for other dependents, was consistently applied by the Workers' Compensation Division and should therefore be applied to calculate the counsel fee.

However, the Appellate Division did not find any evidence to support the respondent's argument that it was long standing practice to calculate fees based on the 450-week period. The Appellate Division did note that the 450-week period always used an expectancy calculation of approximately 8.6 years, no matter the age of the recipient. The respondent argued that the use of the table of morality and life expectancy for calculation of the counsel fee was not proper as such a calculation was speculative since the benefits may in fact end if the spouse remarries or passes away.

The Appellate Division disagreed as the Legislative intent was for a surviving spouse's benefits to be lifetime benefits, unless the spouse passes away or remarries. The Appellate Division believed use of the table method was a reasonable option in this matter.

Comment: The Appellate Division did not hold use of the 450-week method argued by the respondent was improper. It simply found use of the table was reasonable and not improper. The Appellate Division did not identify the age of Ms. Collas. If she was an older individual, the court may have agreed with the respondent to use the 450-week period to calculate the counsel fee if it was a more reasonable option given those facts.

For more information, please contact Vanessa Mendelewski at or 973.242.1364, or Jeffrey D. Newby at or 856.667.5804.

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Jennifer R. Williams 

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