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Barbato v. Alsan Masonry & Concrete Inc.

Decided: April 1, 1974.

LOUIS BARBATO, PETITIONER-APPELLANT,
v.
ALSAN MASONRY & CONCRETE, INC., RESPONDENT-RESPONDENT



For reversal and remandment -- Acting Chief Justice Jacobs, Justices Hall and Pashman and Judges Conford and Collester. For affirmance -- Justices Sullivan and Clifford. The judgment of the Court was delivered in an opinion by Pashman, J. Justice Jacobs and Judge Collester join in this opinion. Conford, P.J.A.D., Temporarily Assigned (concurring). Justice Hall joins in this opinion. Sullivan, J. (dissenting). Justice Clifford joins in this dissent. Hall, J., and Conford, Judge, concur in result.

Pashman

Petitioner suffered a work-related myocardial infarction on February 24, 1970 and shortly thereafter filed a workmen's compensation claim for total disability. Compensation was acknowledged at the workmen's compensation hearing but only 33 1/3% of partial total was awarded by the compensation judge. An appeal to the Morris County Court for a de novo review followed. After careful consideration, findings were made similar to the judgment entered in the Division of Workmen's Compensation. Petitioner subsequently appealed to the Appellate Division which affirmed the County Court in an unreported per curiam opinion, holding on the basis of Close v. Kordulak Bros., 44 N.J. 589 (1965), that the findings that petitioner was not really unemployable were adequately supported by the record. We granted certification. 63 N.J. 550 (1973). We reverse.

Louis Barbato, 60 years old at the time of the accident, lived all his life in Madison, New Jersey. While manually jacking up a scaffolding unit, he felt pains in his chest. After a lunch break, he resumed work but during the course of the afternoon, petitioner's pains increased to the point where he left his work, drove himself home, summoned his doctor and was in turn taken to the hospital where he stayed one month under treatment for a myocardial infarction. He has been under the medical attention of Dr. Donald Kent, a general practitioner who is petitioner's family doctor. He stated at the trial that he had been treating petitioner since 1948. In 1962, he treated petitioner for a coronary, and since for high blood pressure and diabetes. Petitioner testified that after his 1962 heart attack, he had attempted to find less rigorous employment, but being unsuccessful, he had eventually returned to work as a laborer. Since the present heart attack, Dr. Kent prescribed various medications,

digitalis and esidrix, for petitioner's blood pressure and orinase for his diabetes.

Petitioner visited him on a regular monthly basis. The doctor stated that petitioner's cardiac condition was moderately severe. He indicated that a patient on digitalis certainly has to be watched, the blood pressure must be monitored, and the blood sugar regulated. Dr. Kent summarized that this condition would remain with petitioner for the duration of his life. He was of the firm opinion that petitioner could not return to his work as a laborer.

Dr. Rowland Goodman, petitioner's medical expert, testified that he had examined Barbato on August 5, 1970, and reviewed the hospital record which diagnosed petitioner's condition as "acute myocardial infarction due to arteriosclerotic heart disease." This meant that there was a narrowing of the aortic valve which produced a murmur, causing the heart to beat more vigorously to push the blood through the narrowed vessels. There was a possible presence of kidney disease diabetes; the electrocardiogram showed premature ventricular beats and a healed anterior wall myocardial infarction and persistent elevation of the ST segment in leads V-2 through 3. Based on his own evaluation, Dr. Goodman found petitioner to be suffering from an arteriosclerotic heart disease with an enlarged heart, aortic stenosis and severe residuals of the acute myocardial infarction.

Dr. Goodman added that based on petitioner's subjective complaints to him of his sleeeping discomfiture, a congestive heart failure was indicated and the heart was not pumping adequately. Accordingly, he felt the patient had made a poor recovery, that his disability was 100% of total, and as a result would never be able to return to employment. On cross-examination, however, Dr. Goodman's diagnosis of the congestive heart failure was somewhat disproven. The hospital record did not indicate any of the symptoms normally associated with congestive cardiac failure.

Dr. Sanford Lewis, a specialist in internal medicine and cardiac diseases, examined petitioner on November 25, 1970, on behalf of respondent. Dr. Lewis took a normal laboratory cardiac examination of petitioner as well as an electrocardiogram. His diagnosis was that petitioner's aorta had widened, which resulted in a mild increase to the left ventricular cardiac segment. He disputed Dr. Goodman's analysis of orthopnea -- difficulty in breathing while lying down. He said that it was normal for a post-cardiac patient to experience some dyspnea -- shortness of breath, and occasional chest pains by exerting oneself too much too soon. Nevertheless, petitioner did walk 1.5 miles a day, and in Dr. Lewis' evaluation, based on criteria of the American Heart Association's skill of disability evaluation, this indicated, in his estimation, that petitioner had suffered only a 20% cardiac disability. He said, furthermore, that there was no significant complication such as arrhythmia, gross cardiac enlargement, congestive heart failure, or aneurysm formation. Dr. Lewis believed that the injured portion of the heart muscle is replaced by fibrous scar tissue which heals the infirmity. In this case, since no swellings developed in the heart nor was any symptom of heart failure evidenced while petitioner was in the hospital, he found there was no need for digitalis, i.e., that there was no rhythm problem with the heart. Nor, in his analysis, did he ascertain any fluid in the lungs, which would result in orthopnea. In Dr. Lewis' opinion, petitioner suffered only from arteriosclerotic and hypertensive heart disease with a previous myocardial infarction. Dr. Lewis conceded that it would be extremely improbable that petitioner could resume employment as a construction laborer, but he believed petitioner quite capable of performing some sort of gainful employment. He suggested that petitioner could work as a guard, sales clerk, or at an assembly bench in a factory. He was quite certain that petitioner could pass a pre-employment physical.

Dr. Goodman took the other extreme and indicated that he doubted whether petitioner could do any type of work.

Taking a middle position, Dr. Kent suggested petitioner might do some desk work, pencil and paper work, but definitely not hard, physical labor. In fact, Dr. Kent tried, unsuccessfully, to get petitioner to change his employment some time before 1970 due to petitioner's diabetes which Dr. Kent diagnosed in 1968. Dr. Kent warned, however, that in his estimation, petitioner quite often became short of breath. He thought this would inhibit his ability to stay in any gainful employment.

Petitioner's education did not go beyond the 5th grade, and his employment background consisted of landscaping, general laboring and factory work, all involving more or less heavy manual labor. He possessed no general skills. His intellectual capacity was somewhat limited, and although he could read some English, he had definite difficulty reading and writing. He owned his own home in Madison, collected $25 a month as a labor pension, $180 a month from Social Security, and had two adult children living with him, each of whom contributed to the support of the household. Since a partial recovery, petitioner made no effort to secure work, for, as he testified at trial, Dr. Kent told him that he could not work and should remain idle. Petitioner testified that he walks daily and at one point painted the walls and ceiling of a 12 X 14 room. He testified that he had to stop intermittently to rest, but could paint a wall for an hour at a time, and the ceiling for 15 or 20 minutes without a rest. After doing this, he required two days of bed rest.

Carl F. Nawoj, an assistant professor of Industrial Relations at Rider College and part owner of a personnel service agency who had interviewed Barbato at the request of his counsel, testified for petitioner. Because he found that petitioner lacked command of the English language, required help in filling out his employment application, and had a physical problem with his heart, it was Nawoj's evaluation that it would be extremely unlikely, if not impossible, for petitioner to secure new employment. Considering the high rate of unemployment, petitioner's age, background and his

work potential, Nawoj, drawing upon his expertise, concluded that there was no place for Barbato on a permanent type job for a particular company anywhere. Nawoj's professional judgment -- that there would be no sedentary work for petitioner -- was based on the reality that employers are insurance-minded and are reluctant to employ someone with petitioner's history, background and age.

The judge of compensation had difficulty conceptualizing how a person with a 100% disability could paint steadily for an hour. He reasoned that in light of all the medical testimony and from his impression of petitioner's testimonial candor, demeanor and behavior, there was unnecessary bridling and belligerency which did not inspire a feeling of total candor. He minimized Dr. Goodman's finding of 100% disability as not based on subjective complaints. He found that there were no symptoms of any congestive heart failure, nor that, medically speaking, petitioner's disability was total.

As to the "odd-lot" doctrine which defines disability by factors other than purely medical ones, the compensation judge pointed out that petitioner had not looked for work, had not attempted to do so, nor sought the aid of any employment agency. Nawoj's testimony was discounted because his expertise was restricted to the Trenton area, whereas petitioner resided in Madison where job opportunities may have realistically existed. The compensation judge carefully distinguished the case of Rodriguez v. Michael A. Scatuorchio, Inc., 42 N.J. Super. 341 (App. Div. 1956), certif. den. 23 N.J. 140 (1957) as to petitioner's age, language, neurological conditions, motivation and education. He noted that petitioner owned his own home, had other sources of income and seemed quite content to spend his remaining days in idleness; therefore he did not apply the "odd-lot" doctrine set forth in Rodriguez and other cases. See infra. Apparently crucial to the determination of the compensation judge was the relation of petitioner's age to his asserted unemployability. The Judge said: "When age is the most

significant factor in one's inability to obtain employment, then that individual is not entitled to total disability benefits under the Workmen's Compensation Act . . ." The Judge continued that the compensation act was not "intended to be a pension or retirement plan for older but no longer employed workers." The compensation judge concluded by finding petitioner to be 33 1/3% partial totally disabled.

The County Court Judge deferred considerably to the Compensation Judge in the latter's assessment of the witness' credibility and in petitioner's failure to support objectively the existence of symptoms otherwise indicating congestive heart failure. He agreed substantially with the findings, that medically speaking, the infarction was reasonably healed and that 33 1/3% was a fair quantum in measuring petitioner's disability. He further concluded that petitioner did not come within the "odd-lot" category and that he was not unemployable. Having reasoned that the purpose behind workmen's compensation was to impose on industry the responsibility of caring for its disabled employees where the accident caused the disability, citing King v. Western Electric Co., 122 N.J.L. 442 (Sup. Ct. 1939), he found that no causal relationship was present between the injury and the inability to secure employment, nor that the evidence established a degree of obvious physical impairment coupled with the factors of training and age such that it places the claimant prima facie in the "odd-lot" category.

I

Petitioner has raised two issues. The first is whether there was substantial evidence in the record which would justify the denial of a total disability award based solely on medical factors. The second, were the courts below in error by failing to properly apply the "odd-lot" doctrine and hence consider factors other than medical? Petitioner has maintained that at his de ...


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