On appeal from a judgment of the Supreme Court, whose opinion is reported in 117 N.J.L. 581.
For the appellant, Charles M. Grosman.
For the respondent, Franklin J. Marryott.
The opinion of the court was delivered by
HEHER, J. The decisive question is whether the Workmen's Compensation act of 1911 (Pamph. L. 1911, pp. 134, 763), as amended, grants compensation for mere bodily disfigurement, resulting in a material reduction of earning power. The award of the bureau based upon the disfigurement was thirty per cent. of total permanent disability. It was reduced to ten per cent. by the Essex Common Pleas. The Supreme Court found a "very marked" facial disfigurement, caused by acid scars. It construed the statute to provide for "disability alone" -- that which "disqualifies the employe from doing work in whole or in part;" and it held that, while the "disfigurement and scars on the claimant's face may well deter employment and thereby lessen his earning power, * * * they in nowise impair his ability to work," and there was therefore no "disability" within the intendment of the cited statute.
We read the statute differently. Its purpose is expressly declared to be (section II, paragraph 7) the provision of "compensation for personal injuries" arising out of and in the course of the injured servant's employment. But, by the same paragraph, compensation is to be made "according to the schedule contained in paragraph eleven." And that paragraph, as amended (Pamph. L. 1928, p. 281), provides compensation (a) "for injury producing temporary disability;" (b) "for disability total in character and permanent in quality;" and (c) "for disability partial in character, but permanent in quality," to be "based upon the extent of such disability." This latter subdivision then goes on to schedule specific compensation for the loss of enumerated physical members and functions; and, under subdivision (w), it is directed that "in all lesser or other cases involving permanent loss, or where the usefulness of a member or any physical function is permanently impaired," proportionate compensation shall be made. Where, as here, "the disability is determined as a percentage of total and permanent disability the duration of the compensation shall be a corresponding portion of five hundred weeks."
The provisions delimiting the scope of the statute are to be fairly construed to effectuate the evident legislative purpose. Nothing is to be read into the statute by judicial construction because of some supposed reason of policy. The primary subject of inquiry is the legislative intention, as expressed in the statute. The reason and spirit of the act, or, in other words, the apparent legislative intent disclosed by the language employed, considered in relation to the subject of the legislation, prevail over its letter; and there is therefore no warrant, in virtue of the rule of liberal construction, or otherwise, for the inclusion of matters not expressly provided, or reasonably to be implied. The rule of liberal construction lends itself, unless carefully guarded, to the judicial exercise of the legislative power.
Yet, in the ascertainment of the quantum of compensable disability suffered by the employe in the instant case, an allowance for disfigurement, in addition to the strictly functional loss ensuing from the scars, is within both the letter and spirit of the statute. The legislative object was to afford compensation for "disability" resulting from "personal injuries" bearing the statutory relation to the employment. Sigley v. Marathon Razor Blade Co., 111 N.J.L. 25. Disability, actual or presumed, is the test of the employer's obligation to make compensation. Here the injured workman concededly suffered an accident in the statutory sense; and it is undeniable that it resulted in "personal injury," of which the disfigurement is an essential part. The extent of the disability flowing from the injury thus sustained cannot be gauged without taking into account the consequent disfigurement. It is just as much a "personal injury" as the impairment of physical function ensuing from the scars, and, to the extent that disability flows therefrom, it is compensable.
True, it cannot be classed as the "impairment" of the "usefulness" of a member, or of a "physical function," in the strict sense, but, considered in the light of the general statutory purpose to provide compensation for "personal injuries," it is plainly within the antecedent clause of subdivision (w) of paragraph 11, granting compensation "in all
lesser or other cases involving permanent loss." If it be held that the significance of the adjective "lesser" is limited by the prior provisions for arbitrary allowances for the loss of a member or physical function, without regard to actual disability during the prescribed compensation period, the subsequent adjective "other," qualifying the same noun "cases," is demonstrative of a legislative purpose to include all other personal injuries "involving permanent loss" in the sense of disability. The word "other" is used in the ordinary sense of "additional or further; not the same; different; different or distinct from the one or ones mentioned or implied; different in nature or kind." New Century Dictionary; Webster's New International Dictionary (2 d ed.).
The change of language effected by the legislature in the exercise of its amendatory power is significant of this purpose. The original act (Pamph. L. 1911, pp. 134, 138), after scheduling the compensation for specific injuries, i.e., loss of members and physical functions, provided that "in all other cases in this class," proportionate compensation should be made. By an amendment adopted in 1913 (Pamph. L., pp. 302, 304), proportionate compensation was granted "in all other cases in this class, or where the usefulness of a member or any physical function, is permanently impaired." In 1919 (Pamph. L., pp. 201, 204), the provision in its present form was incorporated in the statute, while in 1923 (Pamph. L., pp. 101, 104), there was inserted, without phraseological alteration of the clause referred to, ...