Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

McMonegal v. E & B Management Corp.

New Jersey Superior Court, Appellate Division

decided.: December 11, 1986.


Greenberg, Cohen, Gruccio


[214 NJSuper Page 482]

The opinion of the Court was delivered by R.S. COHEN, J.A.D.

This appeal concerns the proper rate at which petitioner Dorothy McMonegal is to be paid Workers' Compensation benefits for her work-connected permanent partial disability. The Division of Workers' Compensation ruled that she should be paid at the rate of $145 per week, a rate higher than her gross wages at the time of her injury. The employer appealed to this court, arguing that petitioner was entitled to only $78.75 per week in benefits. We agree in part and therefore reverse.

The facts are simple. Petitioner worked 30 hours per week and earned $112.50. From her work-connected injury, the parties agreed, petitioner suffered 48% permanent partial disability and thus should be paid 288 weeks of compensation. They also agreed that the Statewide Average Weekly Wages (SAWW) for the purposes of N.J.S.A. 34:15-12 were $289.30.

Before enactment of the 1979 amendments to the Workers' Compensation Law, L. 1979, c. 283, ยง 5, eff. January 10, 1980, permanent partial disability was compensated at a weekly benefit of 66 2/3% of wages, with a maximum of $40 and a minimum of $10 per week. After the amendments, calculation of benefits became more complicated. Newly introduced was the concept of Statewide Average Weekly Wages (SAWW) as a factor in the calculation of the maximum limit on benefits. As amended,

[214 NJSuper Page 483]

N.J.S.A. 34:15-12c contains two separate systems of calculation of maximum benefits, depending on whether injury took place before or after the beginning of 1982. The statutory section is set out in its entirety in an appendix following this opinion.

The Division decided that the statutory pattern introduced in the 1979 amendment could be administered only by disregarding its early language, "shall be paid based upon 70% of the weekly wages," and by measuring weekly benefits exclusively by the percentages of SAWW, which are expressed by the statute as "maximum compensation per week." The result of the Division's reading is that benefits would be payable to every worker suffering the same permanent partial disability at the same weekly rate, without regard to wages before injury. We disagree with the reading of this statute.

One dispositive reason for our disagreement is that the amended statute follows the same form as its predecessor in measuring weekly compensation by a percentage of weekly wages and then by creating upper and lower limits. Now, the upper limit is a percentage of SAWW which increases with the severity of the injury and the degree of permanent partial disability. The manner of expression of that upper limit does not supplant the fully expressed measuring formula which precedes it in the statute, of 70% of weekly wages. Without compelling reason to do so, we cannot ignore the existence of plain statutory language.

Second, the abandonment of individual wages as a measure of compensation in favor of equal benefits for every worker with the same disability would be a major change in the Workers' Compensation Law. There is nothing in the statutory history of the 1979 amendments which demonstrates that the Legislature intended such a change. Moreover, there is no reason related to the thrust of the 1979 amendments to ignore individual wages as a measure of disability benefits. See Russell v. Saddle Brook Restaurant Corp., 199 N.J. Super. 186 (App.Div.1985).

[214 NJSuper Page 484]

[1] The statute does not, as the Division concluded, contradict itself. A worker's weekly benefit for permanent partial disability is to be calculated as 70% of individual weekly wages as limited by N.J.S.A. 34:15-37; only after making that calculation does one apply the minimum limit of $35 and the maximum limit, which is a percentage of SAWW determined by reference to the statutory table which provides a scale of percentages which increases with the severity of the disability. Thus a worker disabled to the extent of 48% is entitled to disability benefits of 48% of 600 weeks or 288 weeks. The statutory maximum weekly compensation applicable to such a disability is 50% of SAWW, or, in this period of time, $145. But that maximum does not measure the benefit offered to every worker, regardless of individual income. Its sole role is to provide an upper limit on benefits.

In order to resolve this case, we must determine what were petitioner's wages. She worked 30 hours per week for $112.50. Her wages for calculation of statutory benefits are as defined by N.J.S.A. 34:15-37. Prior to the 1979 amendments, that section was applied to part-time workers by the construction of a wage rate based on a full work week when there was a potential for full-time employment in the line of work in which the employee was engaged. That was in order to compensate the employee for the full-time economic loss incident to the work injury, and was based on the presumption that the worker had a potential for full employment. See Torres v. Trenton Times Newspaper, 64 N.J. 458, 461-462 (1974).

In the 1979 amendment to N.J.S.A. 34:15-37, such wage reconstruction was expressly outlawed for calculation of temporary disability payments under N.J.S.A. 34:15-12a. Russell v. Saddle Brook Restaurant Corp., supra. The amendment to N.J.S.A. 34:15-37 left undisturbed the remainder of the statutory language which for years had been construed to authorize wage reconstruction for calculation of wages for determination of benefits for partial permanent disability. The Legislature must therefore be taken to have decided not to alter that

[214 NJSuper Page 485]

practice and, thus, the rule of Torres v. Trenton Times Newspaper, supra, survives.

[2] The employer does not question the petitioner's capacity to work a full 40 hour week in the absence of her compensable injury. Her $3.75 per hour pay should therefore produce a wage rate of $150 and a weekly benefit for partial permanent disability of $105.

We reverse the order of the Division of Workers' Compensation and remand the matter to the Division for entry of a new Order Approving Settlement awarding the petitioner 288 weeks of compensation for her partial permanent disability at the rate of $105, for a total of $30,240, less so much thereof as has already been paid. A counsel fee of $3500, calculated on the amount of the award less the tender of $13,075, will be paid, $1400 by the petitioner and $2100 by the respondent. All of the other terms of the Order shall remain the same.


Reversed in part and remanded.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.