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Bass v. Allen Home Improvement Co.

Decided: November 19, 1951.

ROBERT BASS, PETITIONER-APPELLANT,
v.
ALLEN HOME IMPROVEMENT COMPANY, RESPONDENT-RESPONDENT



On appeal from the Essex County Court, Law Division.

For reversal -- Chief Justice Vanderbilt, and Justices Case, Wachenfeld, Burling and Ackerson. For affirmance -- Justice Oliphant. The opinion of the court was delivered by Wachenfeld, J.

Wachenfeld

The construction and applicability of a 1950 amendment to the Workmen's Compensation Act is our main concern here, the specific question being whether the maximum compensation rate for partial permanent disability was thereby raised from $25 to $30 per week.

The facts are not disputed. The plaintiff was injured on January 2, 1951, in an accident which, it is stipulated, arose out of and in the course of his employment. He slipped and fell and was burned by hot tar causing second- and third-degree burns. He filed a claim and hearings were held before a deputy director of the Division of Workmen's Compensation to determine the extent of his disability and the amount of the award.

It was decided that the petitioner was temporarily disabled during a period of 4 3/7 weeks for which he was entitled to compensation at the rate of $30 per week, totalling $132.86, and that he suffered a permanent injury to the extent of three per cent of total disability, or 16 1/2 weeks at the rate of $30 per week, totalling $495. In making this latter award, the deputy director construed R.S. 34:15-12, as amended, to increase the maximum compensation rate for partial permanent disability to $30 per week.

On appeal, the County Court reversed the finding so made and held the 1950 amendment did not operate to increase the applicable maximum and the latter remained at $25 per week. The award for permanent disability was accordingly reduced and the petitioner appeals. We took jurisdiction of the appeal by granting a petition to certify.

R.S. 34:15-12, as amended, provides a schedule of payments to take effect January 1, 1951. Paragraph a. increased the maximum award for temporary disability from $25 to $30 per week. Paragraph b., covering permanent total disability, was not changed by the amendment and the maximum award remained at $25 per week with provision for payment at this rate for a minimum of 450 weeks and further payment thereafter where "the employee shall have submitted to such

physical or educational rehabilitation as may have been ordered by the rehabilitation commission."

Paragraph c. is merely introductory and provides:

"For disability partial in character, but permanent in quality, the compensation shall be based upon the extent of such disability. In cases included in the following schedule the compensation shall be that named in the schedule, to wit:"

Then follows a series of subparagraphs, lettered d. to vv., setting forth certain named disabilities such as the loss of an eye, hand, foot, arm or leg, and establishing the rate of compensation payable therefor as a fixed percentage of daily wages for a specified period. Subparagraph w., under which the claim now before us arose, establishes the percentage rate and duration to be allowed "in all lesser or other cases involving permanent loss, or where the usefulness of a member or any physical function is permanently impaired," and x. makes 48-hour notice to the employer a condition prerequisite to a claim for compensation for traumatic hernia.

It is evident from the wording and punctuation of paragraph c. that the ensuing paragraphs, although lettered as coordinate parts of the same series, are actually subdivisions of c., part of "the following schedule" hinging upon the introductory "to wit." Unlike, and in contrast to, paragraphs a. and b., these subparagraphs (d. to w.) provide no maximum or minimum compensation ...


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