For modification and remandment -- Justices Jacobs, Mountain, Sullivan, Pashman and Clifford. Opposed -- None. The opinion of the Court was delivered by Sullivan, J.
Petitioner, a newsboy delivering papers for respondent, was injured while servicing his route.
He filed a claim petition for compensation with the Division of Workmen's Compensation and was awarded six and one-seventh weeks temporary disability benefits, and forty-five weeks permanent partial disability benefits for the 15% loss of the use of his right arm. The Division found that petitioner earned approximately $7.75 per week for seven hours part-time work. It refused to construct a work week greater than the hours actually worked by petitioner and, instead, awarded compensation at the minimum statutory rate based on petitioner's actual $7.75 weekly wage.*fn1
The award amounted to $15 per week temporary disability benefits, and $10 per week permanent partial disability benefits. On appeal the County Court likewise refused to construct a full work week for petitioner and again awarded compensation based on the minimum rates. However, it also held that respondent had violated provisions of the child labor statutes by failing to keep proper records of petitioner's employment, and therefore petitioner was entitled to compensation in double the amount found to be payable. See N.J.S.A. 34:15-10.
Petitioner appealed to the Appellate Division from that portion of the County Court decision which held that he was not entitled to a benefit rate based on a constructed wage for a full work week. Respondent elected not to appeal from the finding of a child labor law violation and the award of double compensation. The Appellate Division affirmed for the reasons set forth in the County Court's opinion. This Court granted certification. 62 N.J. 199 (1973).
On the present appeal petitioner challenges only that part of the award relating to permanent partial disability benefits, and then only as to the rate of weekly compensation used. The extent of permanent partial disability is not in issue.
As heretofore noted, in awarding permanent partial disability benefits the County Court had allowed petitioner the minimum statutory rate of $10 weekly based on petitioner's actual wages of $7.75 per week. The court refused to construct a weekly wage based on a full work week, holding that a newsboy's work is inherently part-time and cannot be considered in terms of a full work week. As an additional ground, the court noted that petitioner was of school age and the law did not permit him to work full time.
We are concerned about the manifest unfairness of basing a compensation award for permanent partial disability suffered by a newsboy upon the few dollars he received as wages for his part-time work. The award is intended to compensate him for his loss of earning capacity, i.e., diminution of future
earning power. See 2 Larson, Workmen's Compensation Law, § 60.21, pp. 88.200-201 (1970).
In fixing permanent disability benefits for this loss or diminution, the newsboy's future wage expectancy should be taken into consideration. Otherwise, the plain intent of the statute would be negated. To this extent, the fact that a newsboy's work happens to be essentially part-time, and that petitioner herein was of school age, is immaterial.
Some twenty-nine of our sister jurisdictions have dealt with the problem by enacting legislation which bases permanent partial disability benefits for an injured minor, not on actual earnings, but rather on some form of constructed weekly wage. For example, see New York (Workmen's Comp. Law, § 14(5) (McKinney's 1965)); California (Labor C.A., § ...