On appeal from Division of Workmen's Compensation.
[82 NJSuper Page 102] A judgment of the Division of Workmen's Compensation awarded petitioner 35% partial permanent disability of the right leg and 4% partial permanent neurological disability. Respondent appeals only from that part of the judgment which awarded petitioner the said degree of the right leg, contending that (1) the judge of compensation departed from the controlling standards in this
State when he employed a normally concealed, non-disabling disfigurement of the injured employee as a factor in fixing the amount of the award, and (2) the award is excessive and against the weight of the evidence.
Petitioner sustained a compensable injury when a stream of water from a hose he was using in cleaning the inside of a boiler came in contact with hot ashes and the resulting steam caused first, second and third degree burns on his right leg. The burns on petitioner's leg left permanent scars from the dorsum of the right foot to the gluteal area.
The medical experts for both parties found varying degrees of disability of the right leg. Dr. Jacob Heyman, who testified for petitioner, estimated the disability as 30%. Dr. Nelson Manowitz, who testified on behalf of respondent, estimated the disability to be 4 to 5%. The treating physician, Dr. David Reilly, testified on behalf of respondent and fixed the disability at approximately 5%.
The judge of compensation viewed the injured leg and marked the petitioner in evidence. He found that the evidence was insufficient to establish that petitioner's employability had been affected by the injuries sustained in the accident, but made an award of 35% of partial permanent disability of the right leg, which was 5% greater than the highest estimate of any of the expert medical witnesses. This appeal by respondent followed.
It is contended that the criterion for determining permanent disability in New Jersey is "whether the worker has lost any physical function detracting from his body's efficiency in the ordinary pursuits of life," Heidel v. Wallace & Tiernan, Inc. , 37 N.J. Super. 522, 528 (Cty. Ct. 1955), affirmed per curiam 21 N.J. 335 (1956), and, in disfigurement cases, whether the disfigurement is visible and may, therefore, be presumed to interfere with the injured worker's ability to obtain employment. Implicit in the argument advanced is the thesis that compensation cannot be awarded for a normally concealed disfigurement unless there is affirmative proof of interference with future earning capacity.
Respondent quotes extensively from Professor Larson's treatise, The Law of Workmen's Compensation , in an effort to buttress his argument on this point. A careful reading and analysis of the cited text, however, discloses that respondent's reliance thereon is mistaken.
Thirty of our sister states have made statutory provision for compensation for disfigurement of injured employees, but the New Jersey statute is silent on the subject. See 2 Larson, supra , § 65.30, p. 138 (footnote), for a list of jurisdictions having such statutes. The statutes in these states vary widely in content and scope, but generally authorize awards for such disfigurement as is disabling or visible and which, therefore, may be presumed to affect the injured worker's earning capacity or employability. Ibid., pp. 138-139.
The historical basis of compensation laws as the socially desirable compensation of the injured employee for a lessening of his earning capacity from the work-connected accident is carefully documented and approved. 1 Larson, supra , § 2.40 to § 3.40, pp. 9-22. There is criticism of some decisions which appear to include elements of damage appropriate only in civil actions for negligence in awards of compensation, rather than measure the award by the earning capacity principle inherent in the compensation statutes. 2 Larson, supra , § 65.30, pp. 139-140. Refutation of respondent's argument here that there must be proof of interference with petitioner's future earning capacity is found in the analysis of decisions in other jurisdictions which have statutes authorizing compensation for disfigurement. At 2 Larson, supra , § 58.32, pp. 50-51, it is said:
"Some of these cases use as a beginning point the perfectly correct statement that compensability in disfigurement cases does not depend on proof of impairment of earning capacity. They are apt, however, to overlook two important things affecting the precise meaning of the statement. The first is that it refers to present earning capacity as evidenced by present earnings. The statement is almost invariably drawn from cases holding that proof of current earnings does not defeat schedule or disfigurement awards. The statement does not mean, as a careful reading of the cases from New York Central Railroad Company v. Bianc [250 U.S. 596, 40 S. Ct. 44, 63 L. Ed. 1161
(1919)] on down will show, that the presumed ultimate long term impairment of claimant's ability to earn has become immaterial. The second point to note is that the statement refers only to what must be proved. Damage to earning capacity need not be proved in such cases -- true; but the reason is not its irrelevance but the fact that it is conclusively presumed.
So deep-rooted then, is the earning-capacity principle in compensation law, that, even under statutes defining disfigurement broadly as any loss of or injury to a member otherwise not compensated for, the statute should not be read as extending to injuries which cannot be presumed to affect earning capacity at any time in the future." (Footnotes omitted)
See also Amalgamated Sugar Company v. Industrial Commission , 75 Utah 556, 286 P. 959 (Sup. Ct. ...