On certification to Superior Court, Appellate Division.
Handler, Wilentz, Clifford, Pollock, O'Hern, Garibaldi, Stein
The opinion of the court was delivered by
This is a workers' compensation case. Petitioner was employed on a part-time basis, working in that employment substantially less than a so-called normal, forty-hour week. She also held separate, full-time employment. Petitioner sustained compensable injuries arising out of her part-time employment when she was involved in an automobile accident.
Although the accident arose out of her part-time employment, the Workers' Compensation Court determined that petitioner's compensation should be based on her actual wages earned in her part-time employment but the compensation award should be calculated on the basis of a full-time, forty-hour week. The Appellate Division reversed. It held that petitioner was to be compensated according to the wages earned in her part-time employment but only on the basis of her actual work week. That resulted in a substantially reduced award.
This Court granted petitioner's petition for certification. 130 N.J. 9 (1992).
Petitioner, Arlene Katsoris, then fifty-two, was employed part-time by respondent, South Jersey Publishing Company (Company), as a newspaper carrier. She delivered the Atlantic City Press newspaper seven days a week. Katsoris contemporaneously held another job as a secretary on a full-time basis. On May 13, 1987, a truck collided with petitioner's car while she was delivering papers. She suffered fractures of the arm, shoulder blade, knee cap, and pubic bone; multiple fractures of the leg; and a cerebral concussion. Petitioner's injuries resulted in bilateral hearing loss, post-traumatic anxiety, and neurosis. Katsoris has been unable to return to her work as a newspaper carrier. After six months of recovery, however, she returned to her full-time position as a secretary. Because of her injuries, Katsoris experienced some pain and difficulty in carrying out her duties at her full-time job. However, the record does not indicate that her injuries constituted a disability that has prevented her from performing her full-time employment duties or in any way affected her compensation in that employment.
Katsoris filed a petition for workers' compensation benefits. The Company eventually conceded that her injuries arose during the course of employment and that petitioner suffered a fifty-five percent permanent partial disability.
The record discloses that petitioner devoted three hours each morning to newspaper delivery. She spent the first half-hour of every day securing each newspaper with an elastic band and covering it with a plastic bag. During the following two and one-half hours Katsoris delivered the papers to customers on a list supplied to her by respondent. The compensation court determined that Katsoris had worked seventeen-and-one-half hours per week actually delivering papers. The court, however, used a reconstructed work week of forty hours to determine petitioner's compensation award. The court found that Katsoris had earned $106.80 each week for the six days in which she had delivered the daily newspaper, and $46 for each Sunday delivery. Thus, petitioner's actual weekly wages were $152.80. The court divided petitioner's actual gross weekly revenue by her actual hours worked, determining that petitioner had been paid at an hourly rate of $8.73. The court then applied that rate to the reconstructed full or forty-hour work week. According to that calculation, petitioner would have earned $349.25*fn1 for a full week of work with the Company. Because under the statutory scheme permanently-injured employees are entitled to seventy percent of their weekly wage, up to a fixed maximum, the court found that seventy percent of petitioner's reconstructed wage was $244.44. That was sufficient to qualify petitioner for the $221 maximum weekly rate of compensation allowed to an employee who has suffered a fifty-five percent, permanent, partial disability. The compensation court thus awarded petitioner benefits for 330 weeks at a rate of $221, or $72,930.
The Appellate Division determined that petitioner should be compensated at her hourly rate for the "customary number of hours" and for the "customary number of days" constituting an ordinary week "in the character of the work involved." Accordingly, the Appellate Division found that petitioner had worked twenty-one hours a week. (The compensation court considered only the two-and-one-half hours per day that petitioner had actually delivered papers and concluded that she had worked a total of seventeen-and-one-half hours. The Appellate Division, however, included in its calculation not only petitioner's newspaper-delivery time but also the one-half hour per day that she had spent wrapping each paper in its delivery bag.) The Appellate Division determined petitioner's hourly wage to be $7.27 by dividing her actual weekly wage of $152.80 by twenty-one. It multiplied the hourly wage rate by three, which it determined to be the customary number of hours constituting a newspaper carrier's ordinary day, to reach a daily wage of $21.81. The court then calculated petitioner's weekly wage by multiplying the daily wage, $21.81, by seven, which it found to be the customary number of working days constituting a newspaper carrier's ordinary week. Accordingly, the court found $152.87 was the customary, weekly wage for the character of the work involved. The court awarded Katsoris benefits amounting to seventy percent of $152.87, or $106.97, for 330 weeks. Petitioner'S recovery was thereby reduced to $35,300.10.
The use of reconstructed work weeks is not a novel method for calculating compensation benefits for workers injured in part-time employment. In Torres v. Trenton Times Newspaper, 64 N.J. 458 (1974), a minor was injured while delivering newspapers in the course of his part-time job. As a result of the accident, Torres suffered a fifteen-percent permanent loss of the use of his right arm. Id. at 459. At the time of his injury, he earned $7.75 per week for seven hours of work. This Court held that benefits for Torres should be calculated on the basis of a reconstructed forty-hour work week, using an hourly rate reflecting his actual hourly income. Id. at 462. The Court acknowledged that the workers' compensation statute had "no specific provision for a newscarrier or other minor who works only a few hours a week in a part-time job and suffers partial or total disability as a result of a ...