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Rodriguez v. Michael A. Scatuorchio Inc.

Decided: October 30, 1956.

AURELIO RODRIGUEZ, PETITIONER-APPELLANT,
v.
MICHAEL A. SCATUORCHIO, INC., RESPONDENT-RESPONDENT



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

This is a workmen's compensation appeal from a County Court judgment modifying an award of total and permanent disability granted in the Workmen's Compensation Division.

Petitioner was employed as a garbage and refuse collector. On May 9, 1953, while emptying a can of garbage into the back of one of respondent's trucks equipped with a powerdriven rotator for grinding up the garbage and packing it in the truck, petitioner slipped, his left hand was caught in the grinding mechanism and his arm pulled in up to the left shoulder, so that it was practically severed. He was removed to a hospital and the amputation completed surgically about four to six inches below the shoulder joint. Respondent has from the start recognized that there was a compensable accident in the statutory sense. Prior to the compensation hearing it had paid petitioner $30 a week for 31 weeks for temporary disability, and at the time of trial was paying him $30 a week on the basis of 100% loss of the use of the left arm, in accordance with N.J.S.A. 34:15-12(p). In addition, it had supplied him with an artificial arm.

Rodriguez filed a petition seeking compensation over and above the offer previously made and partially paid by respondent. The sole question presented in the Workmen's Compensation Division and in the County Court was whether he was entitled to compensation beyond that provided for by N.J.S.A. 34:15-12(p). The deputy director made an award of 100% of total permanent disability. Respondent having appealed, the County Court, after a trial de novo on the record and argument, reduced the award to 100% loss of the left arm and 12% of total permanent disability for other orthopedic and neurological injuries stemming from the accident. Pursuant to R.S. 34:15-15 the court directed respondent immediately to rectify the prosthesis theretofore furnished petitioner and which had broken, and that he be given instructions by a Spanish-speaking instructor in its proficient use. The County Court, incidentally, held that petitioner had failed to establish that a hernia of which

he complained was causally related to the accident, and that he had failed to give the required statutory notice thereof. N.J.S.A. 34:15-12(x).

The notice of appeal from the County Court judgment indicates that petitioner not only appeals from the reduction in the award, but from the counsel fees allowed for services in the Workmen's Compensation Division and in the County Court. No separate point is made in petitioner's brief that the counsel fees awarded were inadequate in the light of the County Court's ultimate finding as to disability. It is therefore to be assumed that the contention with respect to this issue is that to the extent counsel is successful in establishing here that petitioner's disability exceeds the bona fide offer made by respondent, or exceeds that found to exist by the County Court, he is under N.J.S.A. 34:15-64 to be relatively compensated for his services.

On this appeal petitioner seeks to reinstate the judgment originally entered in the Division. Both the deputy director and the County Court judge recognized that in addition to the loss of his left arm Rodriguez suffered orthopedic and neurological disabilities as a result of the accident. They differed, however, in the extent of the disability allowed. As has so often been stated, we review the judgment of the County Court, but may in the interests of justice make independent findings of fact.

To ascertain whether Rodriguez sustained permanent and total disability requires us to determine, first, what his condition as a working unit was just prior to the accident, and next, what effect the accident had on him as a working unit.

Petitioner was 43 at the time of the accident, and 45 at the time of the division hearing. He is a Puerto Rican, does not speak or understand English (he testified through a Spanish interpreter), and is a man of limited intelligence, having left school in the third grade at the age of 15. In Puerto Rico he worked in a sugar cane mill for seven years as a blacksmith's helper, then as a carpenter's helper and, finally, as a street laborer. He came to the United States

in 1948 as a migrant farm worker, being employed on a farm near Buffalo for a year and then in California where he picked oranges. Thereafter he came to New York and for three years cleaned, swept and painted ships. He next was employed by a dinnerware manufacturer as a polisher. Following this he went to work for respondent as a garbage collector, working steadily without loss of time for six months preceding the accident.

Rodriguez enjoyed a normal life with his wife and four children. He was socially well adjusted, had friends who liked his company, and went to movies and dances. He was, of course, able to take care of his normal personal needs. In addition to his regular work he did odd jobs of painting, plumbing and the like. Petitioner's landlord and his wife fully corroborated his account of his day-to-day habits and activities.

The picture of Rodriguez which emerges from the record is that of a normal industrial unit, a non-English speaking, uneducated laborer, hard-working and industrious.

Following the accident and amputation -- the record does not disclose the date -- Rodriguez was fitted with an artificial left arm equipped with a metal device designed to open and close so that he could pick up and handle objects. Subsequent to the fitting he attended the Institute of Physical Medicine and Rehabilitation in New York City for two weeks, where he received instruction in the use of the device. However, this was not given in Spanish, nor even in English, but by gestures. It appears that because of this inadequate instruction petitioner was able to make only limited use of the device while it was in working order. It broke some five months before the hearing, but he did not have it repaired.

The proofs were that since the accident Rodriguez has been unable to take care of his personal needs, such as dressing and bathing, and requires the help of his wife or friends. He cannot use the subway much because the presence of other people makes him nervous; they push him and he is afraid of falling. His family life has ...


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