Conford, Kolovsky and Carton. The opinion of the court was delivered by Conford, P.J.A.D.
The question presented on this appeal is whether the Division of Workmen's Compensation, when awarding petitioner 100% permanent disability of his right hand for injuries thereto while at work, was required to deduct the amount of an award for a previous employment accident resulting in the amputation of part of the index finger of that hand. The statutory provision requiring construction is N.J.S.A. 34:15-12(d). The Division ruled a deduction was not called for; the Essex County Court held to the contrary. 111 N.J. Super. 510 (1970).
The issue presented has its difficulties. Our conclusion is for reversal of the County Court judgment.
The judge of compensation described the amputation resulting from the earlier 1964 accident as involving "one-half an inch of flesh and perhaps bone" (up to the first joint). For that he was previously awarded 40% disability of the finger ($800).
The accident resulting in the award under review occurred in May 1967 when petitioner's right hand slipped off a machine and was caught and crushed between two rollers. The accident required surgery. Medical testimony on petitioner's behalf indicated that after the accident there was "marked gross deformity involving the entirety of the hand with shortening through the metacarpal level of all of the fingers" and gross atrophy of muscalature. Wrist extension was restricted
30 degrees. Use of fingers for grasp was precluded. There were gross neurovascular changes, residuals of multiple metacarpal fractures and loss of tendon function. After surgery there was slight increase in hand vascularization but no benefit in terms of functional capacity of the hand.
On credible proofs the lower tribunals found the hand to be totally and permanently disabled.
Prior to the 1967 accident and after the 1964 amputation petitioner could bend the finger involved without pain although with some restriction, but he could not bend it at all after the 1967 accident and surgery.
Both tribunals below allowed petitioner 100% of the right hand and 12 1/2% of permanent partial disability for neuropsychiatric injury. Neither of these awards is in issue on this appeal.
The pertinent statutory provision, N.J.S.A. 34:15-12(d) (added to the Compensation Act by L. 1956, c. 141), reads:
If previous loss of function to the body, head, a member or an organ, due to any previous compensable accident or accidents, is established by competent evidence, and subsequently an injury arising out of and in the course of an employment occurs to that part of the body, head, member or organ, where there was a previous loss, then and in such case, the employer or his insurance carrier at the time of the subsequent injury shall not be liable for any loss for which compensation has previously been paid or awarded. In either event, credit shall be given the employer or his insurance carrier to the extent of the previous loss for which compensation has been paid.
Respondent argues for its view as to the intended purport of the foregoing, in short, that the later accident and injury to the hand was to the same part of the body where there was a previous loss (i.e. , to the finger as an anatomical part of the hand); that the loss to the finger was a part of the same loss compensated by the ...