On appeal from a judgment of the Division of Workers' Compensation.
Matthews, Antell and Francis. The opinion of the court was delivered by Francis, J.A.D.
This appeal contests the construction given N.J.S.A. 34:15-12(c)(21) by a judge of the Division of Workers' Compensation -- specifically, whether the 30% incremental awards made under that section are limited to amputations of the hand, arm, foot or leg.
Petitioner was injured in the course of his employment with respondent ESNA. A press came down on his right hand and his right second finger had to be amputated into the proximal phalanges. The award for the amputated finger amounted to $1,880. The judge awarded petitioner an additional 30%, or
$564, for that amputation based on his construction of N.J.S.A. 34:15-12(c)(21). Respondent's appeal is limited to the award of this 30% increment. It contends that § 12(c)(21) deals specifically with amputation awards scheduled for the loss of the hand, arm, foot or leg and that the 30% increment is limited to the loss of those body members. The judge, in awarding the increment, construed the term "body member" as used in N.J.S.A. 34:15-12(c)(21):
I construe that to mean also fingers because the finger is a body member. There's no limitation that the additional amount shall apply only to the members enumerated within that paragraph.
We disagree. N.J.S.A. 34:15-12 sets forth the schedule of payments to be made to workers as compensation for work-related injuries. N.J.S.A. 34:15-12(c) concerns the schedule of payments for permanent partial disabilities, and paragraph (21), the paragraph in dispute, states:
Amputation between the elbow and the wrist shall be considered as the equivalent of the loss of a hand and amputation at the elbow shall be equivalent to the loss of the arm. Amputation between the knee and ankle shall be considered as the equivalent of the loss of a foot, and amputation at the knee shall be considered equivalent to the loss of the leg. An additional amount of 30% of the amputation award shall be added to that award to compute the total award made in amputations of body members, provided however that this additional amount shall not be subject to legal fees.
Since N.J.S.A. 34:15-12 was amended by L. 1979, c. 283, § 5 (eff. January 10, 1980), 12(c)(21) has not had a judicial construction. There is ambiguity in the language of that paragraph, and the term "body members," if not qualified, includes fingers, but reading § 12(c) as a whole in conjunction with the available legislative history requires a construction that the term as used in § (21) is only meant to refer to hands, arms, feet and legs.
N.J.S.A. 34:15-12(c) has an introductory paragraph which explains that it applies to payments for disabilities "partial in character and permanent in quality." Next, a disability wage and compensation schedule is set out, and this is followed by 23 enumerated paragraphs, of which N.J.S.A. 34:15-12(c)(21) is the twenty-first. N.J.S.A. 34:15-12(c)(1) to (11) sets forth the basic schedule of compensation for loss of anatomically distinct parts
of the body: thumb, first finger, second finger, third finger, fourth finger, great toe, all other toes, hand, arm, foot and leg. These first 11 paragraphs are set out in table form, with the table divided into two columns; the left-hand colum is headed "Lost Member" and the right-hand column is headed "Number of Weeks Compensation." According to this table, a finger is a "lost member." N.J.S.A. 34:15-12(c)(2) to (5). This provides some support for the compensation judge's construction of "body member." It is significant, however, that only paragraphs 8 through 11 (hand, arm, foot, and leg) were amended by L. 1979, c. 283, § 5, to provide increased compensation for loss of those members. Paragraphs 1 through 7 were left untouched. The significance of this ...