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Zanchi v. S & K Construction Co.

Decided: December 14, 1971.

GIACOMO ZANCHI, PETITIONER-APPELLANT,
v.
S & K CONSTRUCTION COMPANY, RESPONDENT-APPELLEE



Wood, William Fillmore, J.c.c.

Fillmore

[124 NJSuper Page 408] This compensation claim arose out of a heart attack (myocardial infarction)

petitioner suffered during his employment as a construction laborer for respondent.

Respondent admitted the employment. The compensation judge found that there was a causal relationship between the heart attack and the employment; and respondent does not contest that finding. Indeed, a contrary finding would have been almost inconceivable, since the medical experts for both parties testified that such relationship existed and the circumstances (i.e. the strenuousness of petitioner's work, his pre-existing arteriosclerotic heart condition and the proximity of the attack to the work effort) unmistakably supports the experts' testimony.

The only issue on the appeal is the amount of the award. Even that issue is not as broad in scope as it might be. The compensation judge, on the basis of his assessment of the extent of petitioner's injury, made an award of 25% of total. Petitioner does not quarrel with the award insofar as the injury itself is concerned. Petitioner's dissatisfaction with the award is due to the fact that the trial judge rejected the contentions that, because of other or non-medical factors, petitioner is now unemployable. In other words, petitioner takes the position that, under the so-called "odd lot" doctrine, the award should have been 100%. In rejecting that position the judge stated:

The only evidence submitted by the petitioner in support of his allegation of unemployability was the testimony by Dr. Goodman (petitioner's medical expert) * * *. I was not impressed with Dr. Goodman's cursory exclusion of the petitioner from the job market, absent any evidence that he had, at least, attempted to secure some kind of employment.

In accordance with my well-established duty as the appellate county court judge, I have carefully considered de novo or independently the issue here involved. Close v. Kordulak Bros. , 44 N.J. 589 (1965). I firmly disagree with the conclusion of the trial judge. However, my disagreement does not rest upon any difference with the trial

judge as to the credibility of any of the witnesses. Hence, there is no occasion for me to defer, or to give consideration, to his superior opportunity to assess credibility.

My disagreement with the trial judge's conclusion is based upon a difference of opinion as to whether petitioner's allegation of unemployability is sufficiently supported by undisputed evidence. The trial judge expressed the view that the allegation is supported only by Dr. Goodman's "cursory exclusion of petitioner from the job market." The judge's use of the adjective "cursory" suggests that he considered the doctor's assertion to be evidentially unsupported. If that was true, the judge properly rejected the doctor's testimony as to employability, not only because it was cursory but, more importantly, because it would have exceeded the realm of the doctor's expertise. Petitioner's claim of total unemployability is based, for the most part, upon non-medical reasons. There is no contention that petitioner is medically unemployable. In order to determine the value and meaning of the doctor's answer as to unemployability, one must examine the question which preceded the answer. That question asked the witness to assume that petitioner had no skills other than for work as a laborer in the agricultural or construction fields. In light of that assumption, the doctor's testimony must be understood to mean only that petitioner was unemployable because he was physically unable to do hard labor, the only work which (by assumption) he was capable of doing. The medical experts were in agreement that petitioner could not do hard labor.

The task of determining whether the assumption as to petitioner's capabilities was justified was for the trial court, not the doctor. The court itself must decide, on the basis of other evidence and its own common knowledge, whether circumstances unrelated to the accident in question, coupled with the disability arising from the accident, rendered petitioner unemployable. In approaching that task the court should keep in mind the extent to which the respective parties have the burden of proof.

New Jersey adopted the odd-lot doctrine as part of its Workmen's Compensation law in Rodriguez v. Michael A. Scatuorchio, Inc. , 42 N.J. Super. 341, 353 (App. Div. 1956), certif. denied 23 N.J. 140 (1957). The court there stated that "inability to get work, traceable directly to the compensable injury, may be as effective in establishing disability as is inability to perform work." The thrust of this doctrine goes to the question as to the degree of probability the particular claimant will be able to secure ...


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