CP# 2002-25239 Ortiz v. Ikea Holdings
DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT
DIVISION OF WORKERS’ COMPENSATION
NO. C.P. 2002-02523-
BEFORE: HONORABLE GEORGE GEIST
Judge of Compensation
BAFUNDO, PORTER, BORBI & CLANCY, ESQS.
By: JAMES M. CLANCY
Cherry Hill, New Jersey 08034
Attorney for the Petitioner
STYLIADES, JACKSON & DIMEO, ESQS.
By: BERNADETTE STYLIADES
Marlton, New Jersey 08053
Attorney for the Respondent
The issue presented is whether the amputation is entitled to the additional Workers’ Compensation benefits provided under N.J.S.A. 34:15-12(c)(21) for amputation of a “foot.”
On November 22, 2001, while at full-time work in stock control at the IKEA in Westhampton, New Jersey, the petitioner Daniel Ortiz was close to the end of his shift and he was putting away a couch. He was using a reach truck and it tipped over, landing on his left foot. His foot was trapped under it and his foot was crushed. On December 14, 2001, the 33-year-old petitioner, victimized by a November 22 crush injury to his left foot and ankle, underwent a transmetatarsal amputation of the left foot.
The discharge summary procedures listed: split thickness skin graft, debridement, amputation of stump and amputation of transmetatarsals.
In this case, respondent has agreed to pay the claimant 100% of the left foot, which computes to $72,450 but the petitioner seeks to recover the additional amputation bonus of 30%.
The respondent contends that the petitioner is not entitled to the amputation bonus under N.J.S.A. 34:15-12(c)(21). Respondent points to the evidentiary photographs claiming the petitioner still retains part of the foot. Respondent emphasizes the statute requires an amputation between the knee and the ankle and that thus the amputation bonus is not applicable . This respondent’s contention relies upon the statutory language of N.J.S.A. 34:15-12(c)(21): “amputation between the knee and ankle shall be considered as the equivalent of the loss of a foot.”
Both counsel agree that the only case which currently addresses the concept of the amputation bonus is Martinez v. Silverline, 361 N.J. Super. 99 (App. Div. 2003).
Respondent believes that the Martinez decision does not apply to the facts of this case as it addresses the loss of a hand and not the loss of a foot.
Respondent points to N.J.S.A. 34:15-12(c)(8) that refers to the loss of the “hand” or “thumb and first and second fingers” on one hand or “four fingers” on one hand to qualify for the loss of a hand.
Respondent also emphasizes that N.J.S.A. 34:15-12(c)(6) and (7) do not allow for the loss of toes to constitute the loss of a whole foot and that N.J.S.A. 34:15-12(c)(10) refers only to the loss of a foot.
Under N.J.S.A. 34:15-12(c) the “hand” as “lost member” triggers 245 weeks of compensation and the “foot” as “lost member” triggers 230 weeks.
Noteworthy is that the small difference of 15 weeks between the hand and the foot is the same small difference of 15 weeks between the leg’s 315 weeks and the arm’s 330 weeks.
In Martinez, the Appellate Division concluded that the amputation of all five fingers on a hand was the equivalent to amputation of the hand and therefore petitioner is entitled to the additional benefit. The decision reversed the earlier decision by the Judge of Compensation who had decided that “the loss of fingers is not specifically mentioned in N.J.S.A. 34:15-12(c)(21).”
The Appellate Division focused on the legislative intent of the comprehensive package of the amendments to the Workers’ Compensation Act: “to make available additional dollars for benefits to seriously disabled workers while clarifying and tightening awards of compensation benefits based upon insignificant permanent partial disabilities.” Sponsor’s statement to § 802 of 1979.
The Martinez decision acknowledged that while the number of weeks of compensation to be paid for amputation of a thumb, finger or toe was not changed by the 1980 amendment, the number of weeks of compensation for loss of a hand, arm, foot or leg was increased.
It is clear that under Martinez and the previous decision of Trinter v. Esna Div., 186 N.J. Super. 316 (App. Div. 1982) the legislative intent was to make increased awards to “more seriously injured workers.” Id. 16 320-21. And the legislature viewed the amputation of a major body member, including a hand as a prime example of a serious disability for which there should be such increased benefits.
In the increase of awards to more seriously injured workers, the foot was particularly emphasized in the amendment increasing the weeks from 200 to 230.
Amendments also added the final sentence to N.J.S.A. 34:15-12(c)(21) which provides for the amputation bonus for an amputation of any of the same for major body members: hand, arm, foot or leg.
The final sentence: “An additional amount of 30% of the amputation award shall be added to that award to compute the total award made in amputation of body members . . . . also, clearly increased awards to more seriously injured workers.
In this case, the second sentence of N.J.S.A. 34:15-12(c)(21), establishing that amputation between the knee and the ankle shall be considered as the equivalent of the loss of a foot, is the subject of respondent’s emphasis that the petitioner’s amputation does not qualify for the bonus.
Just as the court concluded in Martinez, I believe this (c)(21) language describes circumstances under which a worker may qualify for the bonus but the language is not the exclusive criteria through which the foot is defined in order to qualify for the amputation bonus.
Loss of all the toes and clearly a significant area of the foot by means of transmetatorsal amputation is evidenced by photography of what appears to be a “stump”, as defined, by Dorland’s Illustrated Medical Dictionary (29th edition). [at page 1716] as “the distal end of the limb left after amputation.”
Therefore I conclude, after careful review of the photographic evidence and this doctor’s report, that petitioner who suffered such a work-related amputation of all the transmetatarsals qualifies for an award of benefits for loss of a foot under N.J.S.A. 34:15-12(c)(10) and also qualifies for an award of the amputee bonus under N.J.S.A. 34:15-12(c)(10) and also qualifies for an award of the amputee bonus under N.J.S.A. 34:15-12(c)(21).
An additional amount of 30% of the amputation award shall be added to that award to compute the total award made in the amputation of the left foot.
Judge of Compensation
July 30, 2004