For reversal and remandment -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the Court was delivered by Conford, P.J.A.D., Temporarily Assigned.
The issue in this workmen's compensation case is whether petitioner is totally and permanently disabled from the accidental loss of parts of four fingers of the left hand while employed by respondent as a machine operator. Petitioner is a non-English speaking Haitian who had been in this country less than a year at the time of the accident. Petitioner invoked the "odd-lot" doctrine of total disability in the Appellate Division and on the petition for certification to this court, but the doctrine was not cited eo nomine in the Division of Workmen's Compensation nor alluded to by the Judge of Compensation in denying total permanent disability and awarding petitioner 100% of the scheduled loss of a hand and 25% permanent total disability for neuropsychiatric impairment.
On appeal by the petitioner the Appellate Division affirmed, holding the proofs fell short of establishing a
prima facie case of unemployability under the odd-lot doctrine and that therefore the employer had no burden to come forward with proof of employability under the rule, ordinarily imposing that burden on the employer in such case, Zanchi v. S. & K. Const. Co., 124 N.J. Super. 405, 411-412 (Cty. Ct. 1971), reinstated after reversal by Appellate Division, 63 N.J. 331 (1973), a rule recently reiterated in Barbato v. Alsan Masonry, 64 N.J. 514, 529, 530 (1974). We granted certification. 68 N.J. 487 (1975). Because of the nature of the findings of fact by the Judge of Compensation, we are constrained, in the light of the evidence, to disagree with the Appellate Division and to remand the case to the Division of Workmen's Compensation for further proofs, new findings and a redetermination in that tribunal.
Petitioner was born in Haiti in 1924 where he attended school about 10 years. French is the language of Haiti, but petitioner learned a "little bit" of English in school (his testimony in the present case was through an interpreter; the communication barrier is obvious from the transcript). In Haiti he and his wife had several small businesses, now conducted there by relatives. In 1970 he twice visited the United States, the first time as a tourist and the second for the purpose of purchasing clothing for resale in Haiti. On the second occasion he, his wife and one of his children remained in the United States. His immigration status is uncertain from the record. He has another child in school in Canada and three in Haiti with his mother. There is no indication that he receives any income from Haiti. He lives on the compensation award and his wife's part-time earnings.
He became employed here, first in an auto paint shop, and then as a machine operator in two places, the second being with the respondent when the accidental injury took place. Petitioner, who is right-handed, suffered a crush injury of the left hand in January 1971, necessitating amputation of parts of all fingers except the thumb.
The testimony renders it clear that petitioner substantially lost the use of the left hand. He also became subject to
recurring cramps from the elbow down and difficulties in extending his arm and flexing his wrist. He is able, however, to drive an automobile. There was considerable medical testimony as to psychiatric involvement. He became depressed and ashamed of the condition of his hand, wearing a glove on it most of the time. After the accident he had tensions, headaches, diminution of libido and a sense of isolation exacerbated by his differing cultural background. He had psychiatric treatment supplied by respondent, but discontinued it when the psychiatrist moved to a different city. The treating psychiatrist did not believe petitioner could work, as he needed two hands for manual labor. The psychiatric condition would probably eventually disappear.
A second medical expert, a neurologist and psychiatrist, examined petitioner January 2, 1973 and found petitioner nervous and ashamed of his hand, which he kept covered in a glove. The physician diagnosed a "post-traumatic psychoneurosis of the conversion hysterical reaction type with depression and partial sexual impotency." He found petitioner 100% disabled "both from the neuropsychiatric point of view and as a physiological industrial unit." That estimate was restricted by the judge to "the difficulty arising from the neuropsychiatric and neurological". The doctor stated petitioner had "lost the will to work as a result of this psychiatric condition." He was therefore "100% disabled from a psychiatric point of view."
A medical witness for respondent estimated petitioner to have a neuropsychiatric disability of 5% of total. He saw no psychiatric basis for petitioner's not working.
Petitioner testified on October 30, 1973. He said he had looked for work at more than 30 factories in the general area of Linden, where he lives, and in Essex County. He specified some of the firms, and proffered a list drawn up by his cousin. He stated he had been turned down by all of them except one when they saw his hand. The one exception, the Simmons ...