Nelson v. Meeker Foundry Co.
| Decision Date | 17 June 1959 |
| Docket Number | No. A--97,A--97 |
| Citation | 152 A.2d 130,30 N.J. 139 |
| Parties | Axel NELSON, Petitioner-Respondent, v. MEEKER FOUNDRY COMPANY, Respondent-Appellant. |
| Court | New Jersey Supreme Court |
Edward B. Meredith, Trenton, argued the cause for the respondent-appellant.
John A. Errico, Bloomfield, argued the cause for the petitioner-respondent.
The opinion of the court was delivered by
Respondent Meeker Foundry Company appealed from a judgment of the Essex County Court which determined that petitioner is entitled to receive workmen's compensation for 100% Loss of his left hand without any deduction for payments previously made to him by respondent for a prior injury to the same hand. The appeal was certified by this court on its own motion before argument in the Appellate Division.
The petitioner, Axel Nelson, has been employed as a maintenance man by the respondent for more than 25 years. On June 20, 1956 the petitioner sustained an accident in the course of his employment which resulted in the amputation of the fourth or little finger of his left hand. The compensability of this accident under the New Jersey Workmen's Compensation Act, N.J.S.A. 34:15--1 et seq., is not disputed. Previously, in October 1931, while working for the same employer, petitioner sustained an injury which resulted in the loss of the thumb and the first and second fingers of his left hand. At that time, pursuant to the then applicable statutory provisions, petitioner received compensation of 65, 40 and 30 weeks, respectively, for the 100% Loss of each of the three digits. Therefore, prior to the 1956 accident, which is the subject of the present litigation, petitioner was possessed of only the third and fourth fingers of his left hand. It is not disputed that as a result of the two accidents the petitioner has an impairment of his left hand equivalent to 100% Loss of such member.
Petitioner's uncontradicted testimony before the Deputy Director of the Workmen's Compensation Division shows that his duties with the respondent to a considerable extent involved carpentry work. He is naturally right-handed, and before the 1931 accident he used his right hand for hammering and his left hand for guiding the nails. After the loss of the thumb and the first two fingers of his left hand he learned to reverse the process, gripping the hammer with his left hand and manipulating the nails with his right. He gradually mastered this technique and became 'pretty good at it.' Through the years petitioner gained considerable muscle strength and tone in both the left hand and arm and the efficiency of his work was not diminished. Following the second accident petitioner has substantially lost the usefulness of his left hand. He now picks up nails with his right hand, hammers them lightly with his left hand, just enough to penetrate the wood, and then switches the hammer to his right hand in order to drive the nails through. This method retards the efficiency of his work and he cannot accomplish the same amount in a day as he could prior to the accident. Further, his work involves transporting material in wheelbarrows, and he now can carry only comparatively light loads because of the lack of strength and control in his left hand.
Petitioner contended before the Deputy Director that as a result of the second accident, the loss of the fourth finger of his left hand, he sustained a 100% Compensable loss of that hand. Respondent urged that petitioner's recovery was limited by statute to a 100% Loss of the fourth finger. The Deputy Director awarded compensation for 100% Loss of the entire left hand, or the equivalent of 230 weeks, but credited respondent with 125 weeks' compensation paid in 1931 for the injury suffered by petitioner in the first accident. Respondent appealed from the award and petitioner cross-appealed from that part of the judgment crediting the respondent with the 1931 payment. The County Court affirmed the Deputy Director's finding and held that '(a)s a result of the loss of his fourth finger the petitioner suffered a compensable loss of 100% Of the left hand.' However, the court reversed that part of the Division's judgment which credited the respondent with the amount previously paid by it to the petitioner.
On this appeal respondent urges that since the compensation for the loss of the fourth finger was specifically fixed by the statutory schedule of compensation payments in effect at the time of the second accident, petitioner's recovery should be limited to that amount. It relies upon N.J.S.A. 34:15--12(c)(h), subsequently amended L.1956, c. 141 (N.J.S.A. 34:15--12(c)(5)), which section provided
'Fourth Finger. h. For the loss of a fourth finger, commonly called little finger, sixty-six and two-thirds per cent of daily wages during twenty weeks.'
Respondent asserts that petitioner's present disability is not the result of the loss of his fourth or little finger alone and that, '(i)n the absence of any injury to the hand or complaint of a different character of disability, psychoneurotic for example, * * * the petitioner has sustained a purely scheduled loss of the fourth finger.'
Petitioner contends that despite the loss of his thumb and first and second fingers prior to the June 1956 accident, he possessed the ability to use his left hand with some degree of efficiency and that therefore the consequences of his second injury are greater than the mere loss of a single finger. As he has never received compensation for the loss of a hand, petitioner asserts that his claim is cognizable under N.J.S.A. 34:15--12(w) (now substantially N.J.S.A. 34:15--12(c)(22), L.1956, c. 141). At the time of the accident that section provided:
Subsequent to the petitioner's first accident the Workmen's Compensation Act was amended in 1945 to provide that a workman who lost a 'thumb and the first and second fingers (on one hand) or four fingers (on one hand)' is entitled to compensation equal to that for the loss of a hand, or 230 weeks of compensation. L.1945, c. 74, p. 381, § 5. N.J.S.A. 34:15--12(o). (Now substantially N.J.S.A. 34:15--12(c)(8).) Based on this amendment respondent argues that petitioner had already sustained the industrial loss of his left hand, and that as a result of the second accident the only additional loss he sustained was the fourth finger. It is significant, however, that petitioner has never been compensated for the loss of a hand but rather for the loss of three individual digits, as provided by the then effective statute. N.J.S.A. 34:15--12(c), (d), (e) and (f). The respondent's contention envisages a legislative intention to increase the amount of actual disability with retrospective effect. Such an interpretation would clearly be contrary to the spirit of the act. N.J.S.A. 34:15--12(o) should be deemed to be prospective, i.e., applicable only to accidents occurring after its effective date. See Freylinghuysen v. Morristown, 77 N.J.L. 493, 72 A. 2 (E. & A. 1909).
Where an employee has successive accidents in which the second injury, when taken in concert with the prior one, has rendered the employee totally and permanently disabled, the Legislature has provided that he be compensated for the total effect of his injuries by the establishment of the one per cent fund. N.J.S.A. 34:15--94 et seq. In such a case the employee receives compensation for Total permanent disability, although the employer at the time of the second injury is responsible only for the percentage of disability attributable to that injury, and any additional compensation to which the petitioner is entitled is provided by the statutory fund. Balash v. Harper, 3 N.J. 437, 70 A.2d 747 (1950). Where, however, the total effect of two injuries leaves the employee, as here, with a Partial permanent disability, no provision for such contribution is provided.
Prior to the establishment of the one per cent fund our courts took the position that the employer at the time of the second accident must bear the responsibility of the total effect of the second accident on the employee. Combination Rubber Mfg. Co. v. Obser, 95 N.J.L. 43, 115 A. 138 (Sup.Ct.1920), affirmed per curiam sub nom. Combination Mfg. Co. v. Common Pleas, 96 N.J.L. 544, 115 A. 138 (E. & A. 1921). The same result is generally arrived at in those jurisdictions in which no contributory legislation has been enacted. See 2 Larsen, Workmen's Compensation Law, § 59.10, p. 55 (1952). In the Obser case it was held that a one-eyed man who lost his remaining eye in an industrial accident is entitled to compensation, not for the loss of one eye, which loss was specifically provided for in the schedule of compensation, but for total permanent disability. The court proceeded on the theory that the Legislature, in providing specific compensation for the loss of an eye, leg or arm, contemplated a situation in which the other eye, leg or arm is available. The court said:
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...in his favor by the Division of Workmen's Compensation. Employers Mutual cites in support of its position Nelson v. Meeker Foundry Co., 30 N.J. 139, 152 A.2d 130 (1959). There the petitioner had in 1931 sustained an injury resulting in the loss of three fingers of the left hand for which he......
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...In such cases the quantum of disability is rendered in terms of partial permanent disability. See, e.g., Nelson v. Meeker Foundry Co., 30 N.J. 139, 147, 152 A.2d 130 (1959); Cooper v. Cities Service Oil Co., 137 N.J.L. 181, 182-183, 59 A.2d 268 (E. & A.1948); Sigley v. Marathon Razor Blade ......
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