On appeal from Division of Workers' Compensation.
Ard, King and McElroy. The opinion of the court was delivered by McElroy, J.A.D.
These workers' compensation cases were consolidated by our order and were presented and argued on the same date. They involve accidents occurring after January 10, 1980, the effective date of the 1979 amendments to the Workers' Compensation Act (the act). L. 1979, c. 283. Neither case raises any issue of the petitioner's right to compensation. Both involve disabilities to more than one member or part of the petitioner's body caused by a single accident. The cases pose the question of how such disabilities are to be treated in making a compensation award under N.J.S.A. 34:15-12 c which, in pertinent part, provides:
In Tucker's case, which concerned injuries and disabilities to his lower back, right leg, right arm and right hand and an anxiety neurosis, the judge of compensation held that Tucker's several disabilities were to be "considered as one entity and expressed in terms of partial permanent disability since several major members have been affected." He awarded compensation for "permanent partial disability based upon 33 and 1/3 percent." The judge noted, however, that he apportioned Tucker's disability of 33 1/3% of partial permanent as follows: "5% permanent partial disability . . . psychiatric . . . due to an anxiety reaction; 3% permanent partial disability . . . orthopedic
. . . based upon a lumbosacral sprain; . . . 5% loss of the statutory right leg, orthopedic . . . due to a mild chondromalacia; . . . a 4% loss of a statutory right arm . . . orthopedic . . . due to a medial epicondylitis," and as the "most serious aspect of his disability . . . the injury to his right statutory hand which approximates 20% permanent partial disability or 50% loss of that [member]."
Despite this specific determination of separate disabilities the judge stacked them all together, considered all "as one entity" and gave Tucker a single award expressed in terms of partial permanent disability at 33 1/3%. The judge held that this entitled Tucker to 200 weeks at $86 a week or $17,200 under the "Disability Wage and Compensation Schedule" of N.J.S.A. 34:15-12 c.
When appellant's counsel objected to this method of computation the judge acknowledged his awareness of the amendment to N.J.S.A. 34:15-12 c but was of the opinion it did not relate "to matters of this kind." The judge observed that liberal construction of the act required the result he attained and made reference to "the concept . . . that when an accident produces injury to more than one major member that . . . disability is then expressed in terms of permanent partial disability." Tucker's employer appeals.
Poswiatowski's accident caused injuries to his back, a fracture of his left foot and a psychiatric condition. His case was decided by another judge who viewed the quoted section of the statute as plain in intent and held "the three disabilities . . . should be entered separately in compliance with the aforementioned statute." Thus, he separately awarded Poswiatowski 40% of the foot (40% of 230 weeks, or 92 weeks, N.J.S.A. 34:15-12 c 10); 20% of partial permanent for the back injury (20% of 600 weeks, or 120 weeks, N.J.S.A. 34:15-12 c 22), and 10% of partial permanent "for the neuropsychiatric component" (10% of 600 weeks, or 60 weeks, N.J.S.A. 34:15-12 c 22). He calculated the
awards amounted to $13,172, and ordered them to be paid at an averaged weekly rate of $81.30.
Poswiatowski appeals. He principally presents the following argument:
By awarding separate payments to the claimant for each portion of his disability and thereby requiring each number of weeks to be paid at the $47.00 rate, the Judge of Compensation has deprived the claimant of approximately Twenty Thousand ($20,000.00) Dollars, since the rate called for by the Statute (N.J. 34:15-12, supra) for 272 weeks would be fifty (50%) per cent of the statewide average weekly wages (SAWW) or 272 weeks times $123.33 (fifty (50%) percent of $246.67), for a total of Thirty Three Thousand Five Hundred Forty Five Dollars and Seventy Six Cents ($33,545.76).
Poswiatowski thus argues that his three disabilities, i.e., 40% of the left foot, 92 weeks; 20% partial permanent for his back, 120 weeks, and 10% of partial permanent for injury to his psyche, 60 weeks, total 272 weeks and that under the "Disability Wage and Compensation Schedule" of N.J.S.A. 34:15-12 c he falls within the bracket of 271-300 weeks. He asserts that the clear admonition of subsection c that "the number of weeks . . . for each . . . disability shall not be cumulative when entering an award" should be interpreted as "more probably germane to those cases where many different types of claims are combined . . . as in a case when claims of occupational natures are filed with allegations of pulmonary, otological, ophthalmological disabilities and the like."
The different methodologies employed by the two judges are of considerable monetary significance under the new "Disability Wage and Compensation Schedule" of the amended act. N.J.S.A. 34:15-12 c. If the weeks due for separately determined disabilities are treated as cumulative when entering an award more dollars are awarded. This result would occur because by the 1979 amendments, L. 1979, c. 283, § 5, the Legislature not only increased the weekly rate for permanent disability from a maximum of $40 weekly to a maximum of 75% of statewide average weekly wage (SAWW), but also instituted a sliding scale of weekly dollar payments ranging from $47 weekly, where the adjudicated disability required payment for 90 weeks or less,
up to $82 weekly for the last six weeks of a disability for which 180 weeks of entitlement is required. After 180 weeks of entitlement, however, there is a dramatic increase in weekly dollars payable. From 181 up to 600 weeks, disability is compensated from a low of 35% of SAWW for disabilities drawing entitlement from a range of 181-210 weeks, to a maximum of 75% of SAWW for disabilities falling within the 421 ...