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Kitt v. Foster Canning Co.

New Jersey Superior Court, Appellate Division


Decided: February 4, 1985.

EDDIE KITT, JR., PETITIONER-RESPONDENT,
v.
FOSTER CANNING CO., INC., RESPONDENT-APPELLANT

On appeal from the Division of Workers' Compensation.

Furman and Havey.

Per Curiam

[198 NJSuper Page 389]

The judge of workers' compensation awarded petitioner an additional award of 30% for amputation of his two feet as the result of an industrial accident. The sole issue on appeal is whether the judge erred in awarding total compensation amounting to 130% of the award for petitioner's total permanent disability under N.J.S.A. 34:15-12(b).

Respondent employer's argument that the judge below erred is a strained one. Although N.J.S.A. 34:15-12(c) deals generally with awards for partial permanent disability, its subsection (20) provides that amputation of both feet, as well as amputation or loss of any two other body members, constitutes total permanent disability. The next subsection (21) provides for the award of the additional amount of 30% of the "amputation award . . . to compute the total award made in amputations of body members." Respondent contends that, because of the legislative inclusion of subsection (21) within N.J.S.A. 34:15-12(c), petitioner was not entitled to a 30% award in addition to his total permanent disability award or, alternatively, that any 30% award to petitioner should have been calculated based upon the allowable compensation for loss of one foot, a partial permanent disability. That alternative calculation would have led to substantially less total compensation than that awarded to petitioner, even after including two separate 30% awards for amputation of each foot.

[198 NJSuper Page 390]

We reject respondent's interpretation of N.J.S.A. 34:15-12(c)(21) as contrary to its plain language and to its intent to provide significant additional benefits to workers suffering work-connected amputations. The 30% award is in addition to the amputation award. In the case of amputation of both feet, the amputation award is a total permanent disability award. We perceive no ambiguity.

Affirmed.

19850204


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