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Englishman v. Faber Cement Block Co.

Decided: November 24, 1975.

THOMAS A. ENGLISHMAN, PETITIONER-APPELLANT,
v.
FABER CEMENT BLOCK COMPANY, RESPONDENT-RESPONDENT



Kolovsky, Bischoff and Botter. The opinion of the court was delivered by Botter, J.A.D.

Botter

Petitioner suffered a compensable accident on July 2, 1969, resulting in complete loss of vision in his right eye. After a hearing he was awarded the scheduled amount for the loss of vision, namely, 200 weeks of compensation, totaling $8,000, that sum having been tendered to him by respondent. In addition, the judge of compensation found that petitioner suffered a neuropsychiatric disability of 12 1/2% of permanent partial total, amounting to $2,750. However, petitioner was denied an award based on his claim for structural changes to the eye, and it is from this determination that he has appealed. Petitioner contends that in addition to the scheduled amount provided by N.J.S.A. 34:15-12(c)(16) for loss of sight in one eye he is entitled to an award for "structural" changes in the eye, especially the disfiguring effects of a turning out of the eyeball (exotropia).

It is conceded that petitioner suffered total loss of vision of his right eye. At the time of the accident he was employed full-time as a dispatcher for the Ridgewood, New Jersey, fire department and part-time for respondent, averaging approximately 25 hours a week. His work for respondent involved maintenance, such as painting, carpentry and electrical work. Following the accident petitioner continued to work at both jobs and was so employed at the time of the hearing in May 1974. At that time, however, he testified that he had just applied for a pension as a fireman after 27 years with the department.

In addition to the loss of sight petitioner complained of tearing and irritation in cold weather, occasional redness and a wandering feeling in the eye. This latter condition was described as a feeling that the eye was going up and down, although it did not do so when he looked in the mirror. He also complained of occasional headaches, difficulty in concentration and apprehension about his future.

Testifying for petitioner, Dr. Nelson Policastro, a specialist in neurology and psychiatry, stated that petitioner suffered a post-traumatic anxiety neurosis manifested by nervousness, irritability, periodic headaches and anxiety or concern for the future because of the blindness in his right eye. He estimated petitioner's partial permanent disability at 20% of total from a neuropsychiatric standpoint. Dr. Abraham Effron, testifying for respondent, estimated permanent psychiatric disability at 3% of total.

Dr. Irving V. Berney, an ophthalmologist, also testified for petitioner. He had examined petitioner in October 1973. He found that as a result of the trauma petitioner developed a cataract of the right eye as well as exotropia. He estimated that in addition to the total loss of vision petitioner suffered permanent disability from structural changes in the eye, including scarring, subjective symptoms and poor cosmetic appearance due to the exotropia, amounting to 20% of partial total disability.

Addressing itself to the theory upon which compensation is based, our Supreme Court in Katz v. Howell Tp. , 67 N.J. 51 (1975), recently stated:

Contrary to classical theories that workmen's compensation is based solely upon impairment of earning capacity, 2 Larson, Workmen's Compensation Law (1975), ยง 57.00, our statutory provision for compensation of partial permanent disability, N.J.S.A. 34:15-12, subd. c. 22, has been authoritatively construed not to require a showing of "immediate impairment of earning power" but to be satisfied by a "personal injury which detracts from the 'former efficiency' of the workman's body or its members in the ordinary pursuits of life.'" Everhart v. Newark Cleaning & Dyeing Co. , 119 N.J.L. 108, 111 (E. & A. 1937). Withal, however, the theory is

that "the compensation is measured by the impairment of earning capacity, immediate or in the future." Id. at 112. [at 63]

In Everhart v. Newark Cleaning & Dyeing Co. , 119 N.J.L. 108 (E. & A. 1937), a workman suffered marked facial disfigurement caused by acid scars. The lower court had held that although employment might be deterred, no award could be made for the scarring injury to the extent that it did not cause disability in terms of impaired working ability. In reversing, our highest court held that "an allowance for disfigurement, in addition to the strictly functional loss ensuing from the scars, is within both the letter and spirit of the statute." 119 N.J.L. at 110.

N.J.S.A. 34:15-12 provides a schedule of compensation for (a) temporary disability and (b) total permanent disability, as well as (c) disability which is "partial in character and permanent in quality." It enumerates a specific number of weeks of compensation for the loss of various members, such as an arm, leg, foot or hand, as well as fingers and toes and parts thereof. Subsection 16 provides a ...


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