dissenting.
I dissent from the majority’s disposition of this case. An outline of the syllogistic dilemma presented to the courts below runs like this:
(1) In 1979 the Legislature adopted the Workers’ Compensation Reform Act, A. 1979, c. 283, that generally increased rates and benefits for injured workers. The Act increased the minimum benefit for all survivors of workers who suffered occupationally induced deaths from $15 a week to 20% of the statewide average weekly wage and increased the maximum benefit from 66⅔% to 75% of the statewide average weekly *109wage. The Act, however, did not change the basic rate of compensation for those survivors.
(2) Then in 1980 the Legislature adopted a Special Adjustment Benefit plan (SAB) (L.1980, c. 83) to increase awards for workers and their survivors who had been receiving benefits under totally outdated and inadequate benefit and rate schedules in effect prior to the 1979 Reform Act.
(3) The question concerning the relation between these two amendments, then, is whether a survivor of a post-1979 occupational death that was caused by a pre-1980 injury is:
(a) eligible to receive the Special Adjustment Benefit because the basic wage and benefit rate, calculated at the time of injury, was in effect prior to the 1979 Reform Act, or,
(b) ineligible because the 1979 Reform Act provides an adequate minimum benefit that creates a safety net against the economic obsolescence of the survivor’s benefits and consequently makes the SAB plan inapplicable?
The Appellate Division construed the Special Adjustment Benefit law to conclude that since the basic rate remained the same, an SAB benefit should be paid even though post-1979 survivors have some minimum protection under the 1979 Reform Act. 212 N.J.Super. 545-546 (1985).
The majority resolves the issue by reading the 1979 Reform Act as totally inapplicable to survivors of pre-1980 accidents and thus wipes out the dilemma. In doing so, I fear that it may be affecting the rights of litigants not before the Court on the basis of an interpretation that was neither briefed nor argued prior to oral argument before us. Even the claimant would appear to disagree with the majority’s view that section 19 of L. 1979, c. 283 limits benefits paid to survivors of workers who incurred a pre-1980 injury but died after January 1,1980 to the schedule of benefits in existence at the time of the injury.1
*110I would understand the majority’s disposition if it were based on the theory that only a limited class of claimants might be expected to fall within the class of post-1979 survivors not receiving Social Security or other survivor’s benefits, that alternate benefits would guarantee a decent minimum of subsistence, and that there would be minimal economic burden upon the SAB fund. But without more information, such a result is purely conjectural.
We have attempted to determine the economic consequences of either interpretation of the Act pressed by the parties. The ramifications are complex and the relationship to statutory purpose is not easily discernible. Either interpretation results in anomalies. For example, if we accept the Commissioner’s theory, we must ask ourselves, would the Legislature have intended that the survivors of victims injured in a 1972 industrial accident receive differing benefits depending upon whether the worker died before or after January 1, 1980? On the other hand, the Attorney General has argued that claimant’s interpretation will create the anomalous result of lesser benefits for workers with greater wages. Attorney General’s Supreme Court Reply Brief and Second Supplemental Appendix at 5-6.
I believe it is unwise for us, however, to resolve at this time the rights of an unknown class of post-1979 survivors whose benefits will be adversely and perhaps severely impacted by the majority’s rationale. Unless I misread the majority’s opinion, all post-1979 survivors of pre-1980 accidents not receiving an SAB must have their benefits limited to 66⅔% of the average weekly wage payable at the date of the worker’s injury rather than 75% of the average. In addition, those not eligible for a *111SAB will not be eligible to receive the 20% minimum and might be limited to $15 per week.
Although these may be consequences intended by the Legislature, they are not ones I would decide without fuller briefing and participation by parties whose interests might be adversely affected. We may be doing substantial harm to an unknown and unascertained class whose interests are not represented before us.
I would invite reargument on the question of the effect of section 19 with claimants’ interests fully represented.
For affirmance — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, GARIBALDI and STEIN —6.
For reversal — Justice O’HERN — 1.
In her brief in opposition to rehearing in the Appellate Division, claimant stated her position thus:
Additionally, the dependency "rate” consists of two factors: (1) a percentage factor, and (2) a wage factor. The current (post-1980) percentage factor is still 50%, the same rate applicable prior to 1980. The wage factor *110is based on decedent’s last earnings. The plaintiff[’]s basic dependency "rate” then would be 50% of his 1972 earnings of $75 per week, subject to certain mínimums and máximums in effect on the date of his death. [Petitioner-Appellant's Brief Relative To Respondent-Respondent's Petition For Rehearing or Clarification at 3 (emphasis added).]
Her position has not changed.