For the prosecutor, Charles M. Grosman.
For the defendant, Franklin J. Marryott.
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. The present controversy relates to the quantum of permanent disability consequent upon prosecutor's conceded disfigurement as such, suffered by accident arising out of and in the course of his employment. Pamph. L. 1911, pp. 134, 763; Rev. Stat. 1937, 34:15-1, et seq. The cause has been remanded for determination of the question by this court in the exercise of its fact-finding authority. 119 N.J.L. 108.
The compensation bureau appraised this particular incapacity at thirty per cent. of total. Deputy Commissioner Stahl found it to be "a very serious disfigurement," and that prosecutor's "employment in general is seriously affected and reduced at least * * * from thirty to fifty per cent."
The Essex Common Pleas estimated the ensuing disability at ten per cent. of total. 14 N.J. Mis. R. 270. The judge found the scars "to be lengthy, lumpy and repellant," but he concluded that, inasmuch as "a separate award" had "already been made for the functional effect of such disfigurement, and that the highest award previously made by the courts of this state, for disfigurement per se," had been fifteen per cent., the allowance in the instant case should be reduced to ten per cent. of total. And counsel for the defendant employer argues that "an award of ten per cent. is not only supported by various adjudications (in other jurisdictions), but will fix a reasonable and logical standard, even though that standard is arbitrarily arrived at, for other courts to follow."
But to permit awards in other cases to serve as the basis for an arbitrary maximum would plainly frustrate the spirit and policy of the compensation statute. That would constitute a judicial usurpation of the legislative function. It is a mere truism to say that the courts are under a duty to apply the standard laid down in the statute, i.e., the actual disability ensuing from the particular compensable injury.
Turning now to the proofs, the physicians, as is so often the case, differed sharply in gauging the incapacity flowing from this conceded permanent injury. One of prosecutor's medical witnesses, inquiring "who is going to hire him?" fixed his disability at seventy-five per cent. Another physician called by him termed his appearance "hideous." He said that the facial keloids "are so monstrous" as to render it "very difficult" for him to find employment. He continued: "It is more than the ordinary scarring that you see, and the impression that a layman would get from such a condition would be, he probably would have some terrible skin disease or something of that sort, and I say the nearest thing I have seen that looks like it from that standpoint is a healed leprosy. * * * I think it is great enough and hideous enough and deforming enough to hinder his chances of getting employment such as he may have been able to get before he got this disfigurement." The employer's medical witnesses estimated the disability at ten per cent. of total. Yet it is conceded that the disfigurement is of such a degree as to permanently
incapacitate him from the pursuit of employments requiring "contact with the general public." It was ...