For the prosecutor, John W. Taylor.
For the defendant, David T. Wilentz (Christian J. Jorgenson, of counsel).
Before Justices Donges, Colie and Eastwood.
The opinion of the court was delivered by
COLIE, J. This is a workmen's case in which the sole question for determination is the quantum of the award for permanent disability.
William B. Cooper, an employee of Cities Service Oil Company, sustained accidental injury arising out of and in the course of his employment. After final hearing in the Workmen's Compensation Bureau, the deputy commissioner found that there was a 100% loss of the right eye and a 10% loss of the left eye, entitling the employee to an award of 55% of total permanent disability therefor, and in addition he found that there was a neurosis amounting to 5% of total permanent. These findings were incorporated in an award of 60% of total permanent or 300 weeks. On the employer's appeal, the Middlesex County Court of Common Pleas affirmed, whereupon the employer sued out a writ of certiorari.
R.S. 34:15-12 (s) provides that for the loss of an eye, a workman shall receive sixty-six and two-thirds per cent. of daily wages during 100 weeks. R.S. 34:15-12 (v) provides that the loss of both eyes constitutes total and permanent disability. R.S. 34:15-12 (w), so far as pertinent to the present case, reads: "In all lesser or other cases involving permanent loss, or where the usefulness of a member or any physical function is permanently impaired, the compensation shall be sixty-six and two-thirds per cent. of daily wages, and the duration of compensation shall bear such relation to the specific periods of time stated in the above schedule as the disabilities bear to those produced by the injuries named in the schedule." This provision, with some slight alterations in the wording which in nowise effect any change in the
meaning, became a part of the Workmen's Compensation Act in 1913 by the passage of chapter 174 of the laws for that year amending section 11 of chapter 95, laws of 1911. Two years after the amendment, the Supreme Court in Vishney v. Empire Steel and Iron Co., 87 N.J.L. 481, in reversing the Common Pleas in a situation where there was a loss of eighty per cent. of each eye, held that compensation should be awarded to the extent of eighty per cent. of total permanent disability. In Orlando v. Ferguson & Son, 90 Id. 553, the Court of Errors and Appeals approved the decision in Vishney v. Empire Steel, &c., supra, so far as the underlying principle was concerned. In the Orlando Case there was a fifty per cent. loss of usefulness of each hand and a ten per cent. loss of the use of one eye. Parenthetically, we point out that there is no difference in principle between the cited case, involving partial permanent injuries to two hands and one eye, and the instant case involving partial permanent injuries to one eye and to the nervous system and total loss of the other eye.
The Court of Errors and Appeals in the Orlando Case said: "that in the case of a partial but permanent loss of the usefulness of * * * both eyes * * * compensation shall bear such relation to compensation for total and permanent disability as the partial but permanent disabilities collectively bear to total and permanent disability.
"It follows, therefore, that when the trial judge found that there was a fifty per cent. loss of the usefulness of each hand, and a ten per cent. loss of the usefulness of one eye, he should then have found what percentage of total and permanent disability the combination of fifty per cent. loss of the usefulness of two hands and ten per cent. of one eye made, and should have awarded that percentage of four hundred weeks. It is not strictly a mathematical problem. It is not to be solved by adding up the fractional parts, but upon the basis of the percentage of total and ...