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Poswiatowski v. Standard Chlorine Chemical Co.

Decided: May 24, 1984.

STEVE POSWIATOWSKI, PETITIONER-APPELLANT,
v.
STANDARD CHLORINE CHEMICAL CO., RESPONDENT-RESPONDENT. CAROLE RAE FAGAN, PETITIONER-APPELLANT, V. CITY OF ATLANTIC CITY, RESPONDENT-RESPONDENT. EDWARD SMITH, PETITIONER-RESPONDENT, V. UNITED STATES PIPE AND FOUNDRY COMPANY, RESPONDENT-APPELLANT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 191 N.J. Super. 371 (1983) (A-109 Poswiatowski v. Standard Chlorine Chemical Co.).

For affirmance and reversal -- Chief Justice Wilentz, and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.

O'hern

This appeal concerns the proper measure of benefits for injured workers under amended sections of the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128. L. 1979, c. 283. The issue is whether multiple injuries arising out of the same accident should be compensated separately or cumulatively under the revised schedule of payments that increases weekly awards as the percentage of disability increases. The question arises because one sentence in N.J.S.A. 34:15-12(c), as amended and effective January 10, 1980, states:

When 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.

We hold that the separate injuries arising out of the same accident should be treated for purposes of compensation as they affect the worker: cumulative in impact, resulting in a single compensable disability within the meaning of N.J.S.A. 34:15-36.

Workers' compensation benefits for permanent disability are calculated by translating the worker's loss into a stated number of weeks and paying the worker a sum of money per week over the period. Thus the loss of a hand is equated with 245 weeks, a leg 315 weeks, and a foot 230 weeks. N.J.S.A. 34:15-12(c). Partial losses are expressed in percentages; for example, the loss of the first phalange of a finger is considered the loss of one-half of the finger. N.J.S.A. 34:15-12(c)(12). The loss of an unscheduled bodily function -- for example, a back injury -- is equated with a percentage of total disability (now 600 weeks). N.J.S.A. 34:15-12(c)(22). A 15% loss of function of the back, then, is equated with 90 weeks of disability. Under prior law it made no difference whether multiple injuries were cumulated or separated for purposes of computing the awards, since, for the most part, there was a flat rate of compensation, $40 for each week of disability. Whether it was calculated as 60 weeks

at $40 per week plus 40 weeks at $40 per week, or 100 weeks at $40 per week was obviously irrelevant.

But under the new schedule of benefits set forth in N.J.S.A. 34:15-12(c), the difference is of great significance. If the weeks due the injuries are added together when entering an award, more money is awarded. By the 1979 amendments, L. 1979, c. 283, ยง 5, the Legislature not only increased the weekly rate for permanent disability from a maximum of $40 to a maximum of 75% of statewide average weekly wage (SAWW), but also created a sliding scale of weekly dollar payments ranging from $47 where the adjudicated disability requires payment for 90 weeks or less, up to $82 for the last six weeks of disability for which 180 weeks of payments are required. Over 180 weeks of entitlement, 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 of from 181 to 210 weeks), to a maximum of 75% of SAWW (for disabilities falling within the 421- to 600-weeks bracket.)*fn1 See Gothelf v. Oak Point Dairies of N.J., 184 N.J. Super. 274 (App.Div.1982).

A simplified example will illustrate the statutory scheme: A 30% loss of function of a leg equates with 94.5 weeks of disability; a 15% loss of function of the back is equated with 90 weeks of disability. Under the 1980 revision, the award will have significantly different cash value, depending on the method

of calculation. Using the rates in effect prior to January 1, 1982, and the 1978 SAWW of $245.58, the awards would be:

Separate Cumulative

30% Leg: 94.5 wks at $49/wk = $4630 184.5 wks at 35% of SAWW, or

15% Back: 90 wks at $47/wk = 4230 184.5 at $85.95 = $15,857.77

---- -----------

Total award $8860 $15,857.77

This latter method has been referred to in some of the cases as "stacking," a phrase that has been used in another context to denote the availability of additional insurance coverage after exhaustion of primary coverage. See Lundy v. Aetna Cas. & Sur. Co., 92 N.J. 550, 555 (1983). The issue here is the rate of compensation. The three cases before us present an opportunity to test the issue in distinct factual settings. A brief description of each case follows; a detailed statement is set forth in the opinions below.

Steve Poswiatowski fell onto a concrete landing, fracturing his back and left foot. The compensation court described him as a "reticent person," having "more troublesome complaints than he projected." That court awarded 20% of total (120 weeks) for the fractures of the T-12 and L-1 vertebrae, 40% of the left foot (92 weeks) for that fracture, and 10% of total (60 weeks) for the neuropsychiatric component. Believing that each award should be entered separately, the court found petitioner entitled to $6024 for the back, $4328 for the foot, and $2820 for the neuropsychiatric component, a total of $13,172. The Appellate Division affirmed the award on the issue of stacking. Tucker v. Central Paper Co., 191 N.J. Super. 371 (1983). It modified the award to correct an error in the method of averaging weekly payments. In that court's view,

[i]t is the new upwardly sliding scale of dollars payable, depending upon the number of weeks allocable to determine disability, that required the need for the Legislature to impose the requirement that separate and distinct disabilities be "determined and entered separately for each such ...


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