On appeal from Division of Workers' Compensation.
King and McElroy. The opinion of the court was delivered by McElroy, J.A.D.
The employee here appeals contesting the amount the worker's compensation judge calculated to be due him for increased disability and the method by which his employer was credited for previous awards of partial permanent disability. The issues require interpretation of N.J.S.A. 34:15-12(c) and (d), as amended effective January 10, 1980. The undisputed facts follow. Appellant-employee will be referred to as petitioner and his employer as respondent.
Petitioner first injured his lower back in a statutory accident in 1973. Accidental injury to the same area occurred in 1974 resulting in a laminectomy in 1975. These events culminated in two awards in 1977 which totaled 25% of partial permanent for orthopedic disability and 5% of partial permanent for neurological disability. Thus, at the time the present awards were made to compensate petitioner for three subsequent statutory accidents
on February 19, 1979, May 20, 1980 and September 11, 1980, all of which aggravated and increased his lower back condition, he had previously been awarded $6,600 under the old schedule of N.J.S.A. 34:15-12, representing partial permanent functional disability of 30%.
The petitions for increased disability from the 1979 accident and the two accidents of 1980 were consolidated for hearing. The compensation judge held that all three accidents caused "strains superimposed upon the prior disc injury and some increase in neurological anxiety for the condition." He found a resulting overall partial permanent disability of 50% assessed as a 15% increase in orthopedic disability and a 5% increase in neurological disability. He held this increase of 20% disability to be attributable to these three accidents in the following manner.
The accident of February 17, 1979 caused an increase in disability of 7 1/2% of partial total, 5% orthopedic and 2 1/2 neurological. This disability was computed under the compensation schedule of N.J.S.A. 34:15-12(c) prior to the new amendment and entitled petitioner to 41 1/4 weeks at $40 per week, or $1,650.
The judge found that the accidents of May 20 and September 11, 1980 caused a combined increase of 12 1/2% of partial permanent disability which, under the medical proofs, could not be separated. These accidents having occurred after the effective date of new compensation schedule of N.J.S.A. 34:15-12(c), he calculated that petitioner was entitled to 75 weeks of compensation (12 1/2% of 600 weeks) at $47 per week for a total of $3,525. The judge gave the following rationale for reaching this figure:
[R]espondent is only liable for paying for that part of the disability which occurred in 1980 and . . . even though [respondent] is entitled to credit for the prior awards, the credit amounts actually to not having to pay for whatever was paid in terms of disability . . . .
In our judgment the compensation judge erred in holding petitioner only entitled to a weekly compensation rate of $47 payable over 75 weeks. This is the scheduled rate and prescribed period of payment for a disability of 12 1/2% of partial [190 NJSuper Page 29] permanent disability under the schedule of payments in effect at the time of this award. N.J.S.A. 34:15-12(c), L. 1956 c. 141, § 2. Plaintiff, however, was adjudicated to be 50% disabled as a result of the aggravating effects of the two 1980 compensable accidents superimposed upon his previous functional loss of 37 1/2% from the 1973, 1974 and 1979 accidents. Under the new "Disability Wage and Compensation Schedule" of N.J.S.A. 34:15-12(c), a worker who is 50% disabled and qualifies for the maximum weekly rate is entitled to payment of the maximum weekly rate for a period of 300 weeks (50% of 600 weeks). Because he falls within the schedule bracket of 271-300 weeks, he is entitled to 50% of statewide average weekly wages (SAWW). It is not disputed that the applicable SAWW figure is $246 a week. Petitioner's weekly rate is 50% of that figure, or $123, and is payable for 300 weeks. Golthelf v. Oak Point Dairies of N.J., 184 N.J. Super. 274 (App.Div.1982). Although the employer is entitled to a credit for "previous loss of function" (37 1/2%), pursuant to N.J.S.A. 34:15-12(d), the legislative scheme does not contemplate that such an injured worker be treated as though he were only 12 1/2% disabled. Whether the previous loss of function was caused by prior compensable injuries or by a noncompensable injury or condition, we take the applicable principle to be that when a subsequent compensable injury acts upon preexisting impairment or condition and produces greater disability than might ordinarily flow therefrom, the award of workers' compensation must equal the full extent of impairment. Cf. Belth v. Anthony Ferrante & Son, Inc., 47 N.J. 38, 45-46 (1966); Kelly v. Alarmtec, Inc., 160 N.J. Super. 208, 212 (App.Div.), certif. den. 78 N.J. 340 (1978). This principle, applicable to cases arising before credit was given in 1956 for preexisting compensable disability (L. 1956, c. 141) and before credit was given for all types of previous loss of function by the recent amendment of N.J.S.A. 34:15-12(d) by L. 1979, c. 283, § 5, is based upon the proposition "that an employer takes his employee as he is." Kelly v. Alarmtec, supra, 160 N.J. Super. at 212. Clearly, that logic still applies, except that in order to
encourage hiring of workers with preexisting disabilities the employer now gets credit for the "previous loss of function." In corresponding fairness to a worker whose overall disability is increased by subsequent compensable accident, however, N.J.S.A. 34:15-12(d) does not provide that the employer is only liable for the disability superimposed upon the previous loss of function. It distinctly states, as to "previous loss of function," that "the employer or the employer's insurance carrier at the time of the subsequent injury . . . shall not be liable for any such loss and credit shall be given . . . for the previous loss of function . . . ." We detect no ambiguity here. Overall disability must be used to determine the base against which credit is given to the employer or the carrier for previous functional loss. In our view, this comports with the legislative intent that the ...