For reversal and remandment -- Justices Jacobs, Hall, Sullivan, Pashman and Clifford. For affirmance -- None. The opinion of the Court was delivered by Pashman, J. Hall and Clifford, JJ., concur in result.
The sole issue herein is whether petitioner, Quincy Oglesby, 40 years of age at the time of a back injury accident, conceded to have arisen in the course of and out of employment, N.J.S.A. 34:15-7, on May 5, 1967, qualifies as one totally permanently disabled within the meaning of the "odd-lot" doctrine to which we have given expression today in Barbato v. Alsan Masonry & Concrete, Inc., 64 N.J. 514 (1974).
The compensation judge entirely omitted mention or consideration of this doctrine. He made findings to the effect that petitioner, by virtue of suffering a lateral herniation of the L5-S-1 intervertebral disc while manually picking up heavy stones in the course of a dredging operation for respondent, was entitled to temporary disability for 82 1/7 weeks at the rate of $80 per week, and by reason of petitioner having suffered a permanent partial disability of 50% attributable to the work-related accident, was entitled further to receive benefits for 275 weeks at $40 per week. Broken down, the permanent disability figure was apportioned 37 1/2% representing orthopedic and neurological residuals of the herniated disc at the L-5 level, and 12 1/2% representing psychiatric residuals in the nature of a post-traumatic anxiety neurosis.
Issues of jurisdiction relative to the situs of the employment contract, and causal connection incident to a second
operation undergone by petitioner two years after his first operation of February 1968 for laminectomy of the L-4 disc in the left sacral lumbar region, were briefed and orally argued below by the parties. As to the jurisdictional issue, it was stipulated before us on oral argument that it was no longer part of the case. Respondent conceded that New Jersey was the situs for the work contract from which the immediate accident arose. Petitioner, while arguing at length that the second operation also stemmed from the accident and should be a factor in awarding medical expenses, a fact found contrary to this contention by both tribunals below, has elected not to raise the issue before this Court. Hence, our concern herein is solely with petitioner's permanent disability attributable to the accident and the first operation.
The Appellate Division, in an unreported per curiam, apparently was satisfied that it was insufficiently evidenced that total permanent disability was established "either medically or under the so-called 'odd-lot' doctrine," and cited Quiles v. N.J. Metals Co., 37 N.J. 91 (1962) in support thereof. We granted certification, 63 N.J. 427 (1973).
In reversing the Appellate Division, we deem it significant to note that similar to our determination in Barbato v. Alsan Masonry, supra, we are not disturbing the findings of permanent disability based upon medical factors; rather, we feel that, as in Barbato, an incorrect application and consideration of non-medical factors, those elements involved in the "odd-lot" doctrine, were made below, and upon a proper application of these criteria, total disability would have been realized. We have carefully and historically set out the principles of the "odd-lot" doctrine in Barbato, decided this day. The facts in the present case, however distinguishable in some notable instances, are in need of elaboration to indicate the extent to which they portray the picture of petitioner as a total industrial unit. Petitioner represents a unit whose inherent limitations, aside from the obvious medical infirmities imposing a great burden, make it extremely unlikely that he will overcome his handicaps and secure new work.
It is against this background that one begins to analyze the why and wherefore of shifting the burden to respondent to inform petitioner that new employment is available for him.
Petitioner Quincy Oglesby was born and raised in Statesburg, Georgia, and received no education beyond attending a church school for just one month, going but one day a week. He was never enrolled at any regular public grammar school. Hence, he could neither read nor write; he was merely able to identify his name and write his signature. His work career commenced at age nine or ten when he first began picking and hoeing cotton on a farm, and obtaining resin from a tree, preparatory to the making of turpentine. Petitioner remained in this type of farm labor until age 23 when he migrated to New Jersey to find other suitable employment.
His first job in this jurisdiction was putting in a sewer line for a construction company, which involved picking up, placing and arranging heavy stones and gravel in a ditch prior to the actual laying of the sewer pipeline. This work lasted three months. Thereupon, petitioner managed to find work as a carpenter's helper at an oil refinery. He remained there one and one-half years, until the construction job was completed and the workers were laid off. This apparently was the work pattern he was to experience for the remainder of his work life. Construction employment was bountiful and although this type of work utilized unskilled laborers, such as petitioner, such workers constantly faced the reality of being laid off when their project was at an end. Petitioner worked in several types of chores in this industry, many of which were relegated to heavy manual labor. He was engaged in digging manholes and putting in pipes at a large chemical plant, and carrying bricks and blocks. At one point, in between construction jobs, he ...