Conford, Kilkenny and Lewis. The opinion of the court was delivered by Conford, S.j.a.d.
[89 NJSuper Page 20] When this workmen's compensation case was first heard, on January 24, 1963, it was stated for the record by the employer's attorney, without objection by petitioner's counsel, that petitioner's "wages [were] $20.00 a week, entitling him to the compensation rate of $14.00 a week * * *." The accident involved occurred March 29, 1961, and produced industrial blindness of the right eye.
There was an oral award of compensation for temporary disability of 8-6/7 weeks and partial permanent disability of 241 1/4 weeks, each computed at the $14 rate, to which no one stated any objection.
Before judgment on the oral declaration of award was entered petitioner filed a motion to amend the findings so that the award might be based on a reconstructed full-time weekly wage rate instead of the $20 he was receiving as of March 29, 1961, the contention being that the $20 was only a part-time compensation rate. Reliance was had on such cases as Engelbretson v. American Stores, 49 N.J. Super. 19 (App. Div. 1957), affirmed o.b. 26 N.J. 106 (1958), and Maver v. Dwelling Managers Co., 34 N.J. 440 (1961), calling for allowance to injured part-time workers of a reconstructed weekly compensation rate on the basis of the normal full-time work-week in the business involved. The Division of Compensation held a hearing on the motion and decided against the petitioner. On appeal, the Monmouth County Court affirmed.
Petitioner founded the business of the employer corporation in 1943, and in March 1961 he was the principal owner of the stock and its president; he was then 66 years of age. The company produced filters for engines and hydraulic filters. Petitioner designed the filters and worked "inside and outside both."
Petitioner testified that some time in 1960 he became disabled with a hernia and therefore changed his basis of compensation by the corporation from $400 per month to $20 per week, being unable to work full time. There was proof that he "worked two, three hours a day whenever he could and about three, four days a week." He had a hernia operation in November 1960 and another in February 1961. The case is devoid of any medical evidence from which any reliable determination could be made as to how long, as of the date of the accidental injury to the eye, it was probable that the hernia condition and the corrective operations would keep pettitioner from being able to do full-time work, or as to whether those
conditions would preclude his ever becoming capable of full-time work again at all.
Petitioner gave testimony that the normal work-week in the type of business the company engaged in consisted of five eight-hour days, or a 40-hour week.
It is the employer's position on this appeal that petitioner was, as of the date of the accident, permanently unable to do more than part-time work and was therefore not a proper candidate, under the cited cases, for compensation on the basis of a reconstructed normal full-time work-week. For this it cites the testimony of petitioner's wife that the change in his compensation took place "when he was no longer capable of working his full time"; also his age and the fact that he sold the business in March 1962 and subsequently was working as a consultant at $25 per week. As to the last two facts, however, Mrs. Krogman explained, "He had been injured [meaning the eye injury] and he didn't work any more." And her testimony that in 1960 he was "no longer capable of working his full time" is consistent with the meaning of incapacity merely for the time being because of the hernia condition. The sale of the business in 1962 is, of course, not material, since it occurred after the accident and may well have been motivated by the serious permanent injury resulting therefrom, with or without any other disability. As will be seen, the material factors on the issue of prospective ability to work full time are those in existence as of (i.e., immediately prior to) the time of the compensable accident.
The judge of compensation rejected petitioner's claim for a reconstructed compensation base on two findings: (a) petitioner's employment at the time of the accident was full-time because "the employment involved within the framework of its particular requirements was not of itself full-time to the extent that he engaged in it" (which we take to mean that it was thought that the work done by the particular workman fit the requirements of the employer no matter how few or many hours were served or what pay was received); (b) petitioner
was incapable of more work than he was doing ...