Pezzino v. Charms Co.

• Citation: 50 A.2d 398
• Parties: PEZZINO v. CHARMS CO.
• Decision Date: 20 November 1946
• Court: New Jersey Court of Common Pleas

50 A.2d 398

PEZZINO

v.CHARMS CO.

Court of Common Pleas of New Jersey, Essex County.

Nov. 20, 1946.

Appeal from Workmen's Compensation Bureau.

Proceeding under the Workmen's Compensation Act by John Pezzino, employee, opposed by Charms Company, employer. An order was entered by the Workmen's Compensation Bureau dismissing the petition, and the employee appeals.

Matter remanded to the Bureau.

Rothbard, Harris & Oxfeld, of Newark, for petitioner-appellant.

Kalisch & Kalisch, of Newark, for respondent-appellee.

CONLON, Judge.

On October 29, 1945, petitioner, while in the employ of the respondent, suffered an accident for which he seeks an award for permanent disability. He claims that the upper part of his right central tooth was broken off. The injured tooth was cut down and covered with a porcelain jacket crown. This work was performed by the respondent's dentist and paid for by it. All jurisdictional facts are admitted and no award for temporary disability was claimed.

The Bureau sustained respondent's contention that no compensable injury was indicated and dismissed the petition. From that dismissal this appeal is taken.

The petitioner's position is that since the Compensation Act, R.S. 34:15-12, subd. t, N.J.S.A., prescribes compensation for four weeks for the loss of a tooth, upon the proofs adduced in this case, he is entitled to a proportionate award for the loss of part of a tooth. On the other hand, the respondent contends that no disability resulted from the loss of part of the tooth and that for this reason petitioner is entitled to no compensation.

The amount of the award involved is negligible. Counsel for both parties indicate that they are primarily interested in the solution of the legal principle involved.

Where there is an impairment of any member of the body mentioned in the schedule in the statute above referred to, a proportionate award is warranted. The extent of the incapacity has relation to the proportion-not the propriety-of the award.

As was stated by Justice Heher in a comparable situation in Sutkowski v. Mutual Chemical Co., 115 N.J.L. 53, 178 A. 71, 72:

‘This is a compensable disability, even though Sutkowski's capacity to render the service at which he was engaged was not thereby impaired or his earning power diminished. The test is not impairment of earning capacity; it is rather the ‘loss of physical function which detracts from the former efficiency of the body or its members in the ordinary pursuits of life.’ Burbage v. Lee, 87 N.J.L. 36, 93 A. 859; De Zeng Standard Co. v....