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Smith v. U.S. Pipe & Foundry Co.

Decided: October 18, 1983.


On appeal from the Division of Workers' Compensation.

Bischoff, Petrella & Brody. The opinion of the Court was delivered by Bischoff, P.J.A.D.


This workers' compensation appeal requires us to determine the manner of computation of a compensation award for several functional impairments that are the sequelae of a single traumatic injury. The issue is commonly referred to as "stacking" and implicates that sentence in N.J.S.A. 34:15-12 c which was added by L. 1979, c. 283 and provides:

[W]hen a claim petition alleges more than one disability, the number of weeks in the award shall be determined and entered separately for each such disability and the number of weeks for each disability shall not be cumulative when entering an award.

Prior to this recent amendment to the Workers' Compensation Act, the weeks of compensation awarded for orthopedic, neurological, psychiatric and other disabilities were added together and the weeks were entered cumulatively rather than separately. This was done as a matter of convenience because it made no difference if the weeks awarded were stated separately or cumulated. N.J.S.A. 34:15-16. The weekly rate remained the same whether the disability was 1% or 95%. The 1979 amendments adopted a sliding scale of increasing weekly dollar payments through the first 180 weeks of disability. Gothelf v. Oak Point Dairies of N.J., 184 N.J. Super. 274, 277 (App.Div.1982). Beyond 180 weeks to 600 weeks there is a substantial increase in the weekly dollar payments; disability is compensated from a low of 35% of the statewide average weekly wage (SAWW) for

disability resulting in an entitlement of 181 to 210 weeks to a maximum of 75% of SAWW for disability falling within the 421 to 600 week bracket. It is, therefore, important under this new amendment to determine whether the weeks of compensation awarded for several functional impairments arising out of a single accident must be stated separately or whether they can be cumulated.

The factual background in this case is not in dispute. On May 19, 1980, petitioner Edward Smith was injured while working for respondent U.S. Pipe & Foundry Co. when a heavy object fell over and onto his right forearm inflicting a severe crushing type injury. He was hospitalized for three months during which period five surgical procedures were performed on him. After two debridement procedures on the arm the radial artery, branches of the radial nerve and wrist extensor tendons were still exposed. An abdominal pedicle graft was performed July 1, 1980. This involved the attachment of his hand to his right upper abdomen for the purpose of grafting skin and subcutaneous tissues of the abdomen to the injured forearm. A skin graft from the right thigh was performed as part of this procedure. Subsequent operations for severence of and revision of the abdominal pedicle flap were followed by extensive physical therapy.

The medical testimony indicated petitioner suffered sequela of the injury, which were orthopedic, cosmetic, neurological and psychiatric in nature.

The judge found petitioner sustained permanent disability due to the injury to his right hand, right leg, and abdomen and also suffered from an anxiety reaction. He described the right hand impairment in the same manner as did the medical experts and declared petitioner disabled to the extent of 50% of the hand. The right leg (donor site) he found to be 5% disabled and awarded 23% partial total or 138.25 weeks at $66 per week for a total of $8,124.50 for the combined disability of the right hand and right leg.

He also found petitioner sustained a disability of 10% of partial total for the cosmetic scarring of the abdomen (the donor site) entitling him to 60 weeks of compensation at the $47 rate or $2,820. Superimposed thereon he found a psychiatric disability, anxiety reaction of 12 1/2 percent partial total entitling him to 75 weeks at the $47 rate or $3,525. Petitioner thus received three separate awards totalling $15,468.67 for 273 1/4 weeks at the rate of $56.61 per week.

On appeal petitioner challenges only the method of computation of benefits. Respondent cross-appeals.

Petitioner contends that the judge of compensation erred in not cumulating the three awards which would have significantly increased his judgment since it would have advanced him on the sliding scale of weekly benefits. N.J.S.A. 34:15-12 c. Respondent, on the other hand, argues the trial judge erred in cumulating the 5% award for right leg and 50% award for the right hand, and properly entered separate awards for the other functional impairments. The awards are not otherwise challenged.

It is apparent that our task is to determine the meaning the Legislature intended to ascribe to "disability" as that term is used in the ...

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