Conford, Michels and Pressler. The opinion of the court was delivered by Pressler, J.A.D.
[156 NJSuper Page 472] This is a worker's compensation case. The issue before us is whether there is a basis in this record upon which the judge of compensation could reasonably have
concluded, as he did, that petitioner was not, by reason of the odd-lot doctrine, totally disabled. Unable to perceive any justification for the denial of the benefit of the odd-lot doctrine to this petitioner, we are constrained to reverse.
We need not retread the ground so recently and thoroughly covered in the analyses by the Supreme Court of the development, substance and proper application of the odd-lot doctrine. See Zanchi v. S. & K. Const. Co. , 63 N.J. 331 (1973); Barbato v. Alsan Masonry , 64 N.J. 514 (1974); Oglesby v. American Dredging Co. , 64 N.J. 538 (1974); Germain v. Cool Rite Corp. , 70 N.J. 1 (1976). Suffice it to say that enlightened social policy imposes upon the employer responsibility for a worker whose unemploy-ability on a regular basis in a reasonably stable job market results not only from the direct medical consequences of a work-connected accident but also from the combination of those consequences, in themselves less than totally disabling, with the worker's personal handicaps. In our judgment this petitioner, by the clear weight of the evidence, presents a classic and poignant illustration of what the odd-lot doctrine is all about.
Petitioner was born in Florida in 1932. He went to what he described as a segregated school until he was nine. Whether because of his intellectual limitations (I.Q. testing performed for purposes of this hearing placed him at the borderline between mentally deficient and dull normal) or because of the quality of pre-war rural Florida segregated grade school education, or because of both, he has remained a functional illiterate, incapable of meaningful oral or written communication and lacking even rudimentary arithmetic skills. Able-bodied, however, he performed manual labor on a farm from the time he left school until he was 20 years old, when he migrated north and settled in Newark. There he obtained employment from this respondent, Central Steel Drum Co., for whom he worked for the next nineteen years, and until his employment was terminated in 1971. He has not worked since. [156 NJSuper Page 474] Petitioner's job at Central Steel Drum Co. was primarily that of sandblasting empty drums to cleanse them of their chemical, and sometimes noxiously chemical, residues. He was also at times assigned to straightening out the dents in used drums. As might be expected, his health and vitality were not unaffected by this daily work. As of the date of the filing of this petition he had suffered during the second decade of his employment six compensable events. In 1962 he fell and hit his head, an accident resulting in a worker's compensation award of 2 1/2% partial permanent disability based on the neurological residuals. A petition filed several years later was resolved by a stipulation of dismissal entered upon his agreement to accept 1% of partial permanent disability for an orthopedic injury. By this time he had begun to react to his constant occupational exposure to noxious fumes and in December 1964, was awarded 6% of partial permanent disability for his chronic bronchitis attributable thereto. In 1967 he filed his fourth claim petition, based on a head injury he sustained when accidentally struck with a hammer by a coworker. He received an award of 2% of partial permanent disability for the post-concussive residuals of that episode. In 1969, his hearing now having been affected by the sandblasting, he was awarded 17% of partial permanent disability for a binaural hearing loss. His additional claim for increased disability based on an increase in his pulmonary disability was then, however, denied. It was two years later, on June 30, 1971, that his employment was terminated, his undisputed explanation therefor being that "well, they laid me off on account I was going to the doctor and being absent." The sixth petition, filed after petitioner was laid off, sought an adjudication for his occupational exposure to fumes, dust and noise between the time of the 1969 award and the termination of employment. The hearing on this petition, the transcript of which we have reviewed, was held in February 1973 and resulted in a finding that while petitioner had sustained no further hearing loss, he had sustained an additional
5% of partial permanent disability because of further pulmonary aggravation evidenced not only by the chronic bronchitis but also by the development of pulmonary fibrosis. This petition, the seventh, together with a petition against the Second Injury Fund, was filed later in 1973, and sought modification to 100% of the earlier 1973 award.
Petitioner's theory, as clearly developed during the course of the hearing on this petition, was not based upon any allegation of increased pulmonary or hearing disability. It was rather his theory that his physical disabilities had made it impossible for him to continue as a manual laborer, the only work he could do. His preoccupation with his deteriorated state of health and his appreciation of the impact of that deterioration on his ability to work contributed to a neuropsychiatric problem manifested by a severe depression. That depression, in combination with the physical disabilities and his personal handicaps of greatly limited intelligence, illiteracy, lack of education, lack of any experience, skill or training in any work but manual labor, left him not only unemployable but essentially nonfunctional on any level, his life-style having become that of a shut-in.*fn1
Clearly, if all of the elements of this proposition were proved, application of the odd-lot doctrine would be ineluctable. We are persuaded, moreover, that a fair appraisal of this record admits of no other conclusion. The work-related hearing loss, the chronic bronchitis and the pulmonary fibrosis were all undisputed, as was petitioner's inability by reason thereof to return to his former employment or to obtain any similar employment. He does not have the
lung capacity for heavy or sustained manual labor. Nor was there any real dispute as to the extent of petitioner's personal handicaps. This combination of physical disabilities and personal handicaps alone left him fit, according to the testimony of respondent-employer's neuropsychiatric expert, only for such employment as "work as a porter, sweeping floors within reason or sorting garbage within reason."
While these circumstances by themselves might well have justified application of the odd-lot doctrine, we regard the added factor of petitioner's psychiatric condition to have compelled its application. Petitioner's alleged neuropsychiatric sequelae were essentially all that was in factual dispute here. In attempting to establish them petitioner relied on both the testimony and written reports of psychiatric witnesses whose opinions and the factual support therefor were persuasive of the conclusion that petitioner was suffering from a work-connected and disabling depression. Most telling, however, was the testimony of the psychiatric witness for the Second Injury Fund, who agreed that petitioner, on examination, appeared "sad and depressed." His diagnosis was "depressed reaction in a schizoid personality with hypochondrial trend," to which psychiatric disorder he ascribed a permanent disability of 12 1/2%. It was his further opinion that the triggering of the clinical manifestations of this disorder was reasonably attributable to petitioner's work experiences, their effect on his health and his consequent inability to retain his job. The only note of dissension in the tenor of these proofs was the opinion of the respondent-employer's psychiatric expert, who found petitioner to be neuro-psychiatrically "normal." It was this expert's testimony that "From the psychiatric aspect, he was pleasant, he was affable, he ...