Bass v. Allen Home Imp. Co., A--37

• Decision Date: 19 November 1951
• Docket Number: No. A--37,A--37
• Citation: 84 A.2d 720,8 N.J. 219
• Parties: BASS v. ALLEN HOME IMPROVEMENT CO.
• Court: New Jersey Supreme Court

Page 219

8 N.J. 219

84 A.2d 720

BASS v. ALLEN HOME IMPROVEMENT CO.

No. A--37.

Supreme Court of New Jersey.

Argued Oct. 22, 1951.

Decided Nov. 19, 1951.

Henry Harris, Newark, argued the cause for appellant (Rothbard, Harris & Oxfeld, Newark, attorneys).

Andrew Lawrie, Newark, argued the cause for respondent.

The opinion of the court was delivered by

WACHENFELD, J.

The construction and applicability of a 1950 amendment to the Workmen's Compensation Act is our main concern here, the specific question being whether the maximum compensation rate for partial permanent disability was thereby raised from $25 to $30 per week.

The facts are not disputed. The plaintiff was injured on January 2, 1951 in an accident which, it is stipulated, arose out of and in the course of his employment. He slipped and fell and was burned by hot tar causing second and third degree burns. He filed a claim and hearings were held before a Deputy Director of the Division of Workmen's Compensation to determine the extent of his disability and the amount of the award.

It was decided that the petitioner was temporarily disabled during a period of 4 3/7 weeks for which he was entitled to compensation at the rate of $30 per week, totalling $132.86, and that he suffered a permanent injury to the extent of three per cent of total disability, or 16 1/2 weeks at the rate of $30 per week, totalling $495. In making this latter award, the Deputy Director construed R.S. 34:15--12, as amended, N.J.S.A., to increase the maximum compensation rate for partial permanent disability to $30 per week.

On appeal, the County Court reversed the finding so made and held the 1950 amendment did not operate to increase the applicable maximum and the latter remained at $25 per week. The award for permanent disability was accordingly reduced and the petitioner appeals. We took jurisdiction of the appeal by granting a petition to certify. 7 N.J. 600, 83 A.2d 472.

R.S. 34:15--12, as amended, N.J.S.A., provides a schedule of payments to take effect January 1, 1951. Paragraph a. increased the maximum award for temporary disability from $25 to $30 per week. Paragraph b., covering permanent total disability, was not changed by the amendment and the maximum award remained at $25 per week with provision for payment at this rate for a minimum of 450 weeks and further payment thereafter where 'the employee shall have submitted to such physical or educational rehabilitation as may have been ordered by the rehabilitation commission.'

Paragraph c. is merely introductory and provides: 'For disability partial in character, but permanent in quality, the compensation shall be based upon the extent of such disability. In cases included in the following schedule the compensation shall be that named in the schedule, to wit:'

Then follows a series of subparagraphs, lettered d. to vv., setting forth certain named disabilities such as the loss of an eye, hand, foot, arm or leg, and establishing the rate of compensation payable therefor as a fixed percentage of daily wages for a specified period. Subparagraph w., under which the claim now before us arose, establishes the percentage rate and duration to be allowed 'In all lesser or other cases involving permanent loss, or where the usefulness of a member or any physical function is permanently impaired,' and x. makes 48-hour notice to the employer a condition prerequisite to a claim for compensation for traumatic hernia.

It is evident from the wording and punctuation of paragraph c. that the ensuing paragraphs, although lettered as co-ordinate parts of the same series, are actually subdivisions of c., part of 'the following schedule' hinging upon the introductory 'to wit.' Unlike, and in contrast to, paragraphs a. and b., these subparagraphs (d. to w.) provide no maximum or minimum compensation expressed in terms of dollars. No such limitation is encountered until we come to paragraph y.: 'The weekly compensation payments specified in this section are all subject to the same limitation as to maximum and minimum as are stated in paragraph 'a' hereof.'

Until the new amendment became effective, on January 1, 1951, the maximum and minimum awards provided in both paragraphs, a. and b., were $25 and $10 weekly. Paragraph y. is carried over without change from the old statute. Then, as now, the only injuries for which no dollar limitations on the amounts of compensation awards were individually provided were those set forth in paragraphs d. to w. The function and purpose of y. obviously was to establish the limitation in such cases, which comprise 'the following schedule,' in one all-embracing clause by reference to the amounts mentioned in paragraph a.

It is contended by the respondent that the proper and intended maximum is that provided in paragraph b., namely, $25 per week. Such a designed change is, however, nowhere manifested in the amendment as adopted by the Legislature and approved by the Governor. Paragraph y. plainly refers to paragraph a. as governing the maximum award. To delete and take out of a statute figures, words or phrases specifically and pointedly appearing therein, thereby completely changing and nullifying the normal or ordinary meaning of the act, would seldom be justified. The intention to effect a change in substance must be expressed in language excluding a reasonable doubt. Murphy v. Zink, 136 N.J.L. 235, 54 A.2d 250 (Sup.Ct.1947), affirmed 136 N.J.L. 635, 57 A.2d 388 (E. & A.1947).

The respondent, in the hearing before the Deputy Director, attempting to fortify its theory, called as a witness the member of the Legislature who introduced and sponsored the amendment. Although it was objected to upon the ground that he was only one member of the Legislature and was not qualified to evidence the intent of the whole body, he testified that he first introduced a bill to raise all maximums to $30 per week but could not muster sufficient votes for its passage. The Legislature was willing to increase the maximum only for temporary disability. Subparagraph y., he said, setting the maximum at $30 per week by reference to subparagraph a., was carried over inadvertently from the old statute.

The court below relied on the legislative history of the amendment and further reasoned that the provision in subparagraph y. setting the maximum awards at the $30 rate contained in subparagraph a. was merely an inadvertent carry-over by emphasizing that if a person had a partial permanent disability in the loss of one leg, he could receive $30 per week, whereas if he lost the other...