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Cooper v. Cities Service Oil Co.

Decided: May 13, 1948.

WILLIAM B. COOPER, PETITIONER-APPELLANT,
v.
CITIES SERVICE OIL COMPANY, RESPONDENT-RESPONDENT



On appeal from the Supreme Court, whose opinion is reported in 136 N.J.L. 258.

For the petitioner-appellant, David T. Wilentz (Christian J. Jorgensen, of counsel).

For the respondent-respondent, John W. Taylor.

Wachenfeld

The opinion of the court was delivered by

WACHENFELD, J. The sole question in this case is the amount of compensation for partial permanent disability under the provisions of R.S. 34:15-7, et seq.

As part of his employment with the Cities Service Oil Company, William Cooper was closing a garage door when rust scales fell into his eyes. The right eye was 100 per cent. permanently disabled while the left, 10 per cent. Five per

cent. partial permanent disability due to neurosis and loss of seven teeth were also proven to have resulted from the accident.

These findings are not questioned but the total award based thereon is disputed. The Bureau and the Common Pleas awarded compensation for loss of vision amounting to 55 per cent. of total and an additional five per cent. for neurosis, making 60 per cent. of permanent total disability or 300 weeks at petitioner's rate per week. They also allowed 28 weeks for loss of the teeth. The Supreme Court, grouping all of the injuries together, reduced the award to 40 per cent. of total permanent disability or 200 weeks.

Compensation for the loss of one eye and two eyes is specifically covered in R.S. 34:15-12 (s) and (v). Injuries for lesser or other cases are compensable pursuant to R.S. 34:15-12 (w), which at the time of this accident provided:

"In all lesser or other cases involving permanent loss * * * 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. In cases in which 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."

When there is a partial permanent disability to two members of the body included in paragraph (v), such as eyes, it is error to calculate each disability separately under paragraph (s) and to add the percentages; compensation must be determined pursuant to paragraph (w) as a percentage of total disability. Vishney v. Empire Steel and Iron Co., 87 N.J.L. 481. If three members of the body designated in paragraph (v) are injured, the partial disability of the three members must be computed "upon the basis of the percentage of total and permanent disability reasonably found to be produced by the several injuries considered collectively and with due regard to their cumulative effect." Orlando v. Ferguson & Son, 90 Id. 553, 558.

In the instant case so much of the award allowed for the loss of seven teeth was correctly ...


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