On appeal from Division of Worker's Compensation.
Conford, Michels and Pressler. The opinion of the court was delivered by Pressler, J.A.D. Michels, J.A.D. (dissenting).
Petitioner appeals from a judgment of the Division of Worker's Compensation awarding him permanent partial total disability of 60% based on a work-connected back injury. The gravamen of this appeal is that the judge of compensation erred in not finding him permanently totally disabled either by reason of the orthopedic injury alone or under the "odd-lot" doctrine. Our review of the record persuades us that petitioner was entitled to the benefit of the odd-lot doctrine and that the findings below did not justify the judge's conclusion to the contrary.
This petitioner is now 49 years old. He received a primary education in Virginia, completing the ninth grade. He began his working career at the age of 9 or 10, doing heavy manual labor, primarily in the moving and storage industry. From 1957 continuously to the date of this accident in 1973, he worked for this respondent as a helper on a furniture moving truck. During the course of this employment he had sustained two minor back injuries, one in 1964 and one in 1971, but sought compensation only for the first, for which he received an award of 3-I/2% permanent partial disability. He also injured his left knee on the job in 1968 receiving compensation in the amount of $500. The instant accident occurred in May 1973 when he herniated two disks, L4-5 and L5-S1, while carrying a refrigerator on his back from the moving truck to a second floor apartment. His active medical treatment for this injury continued for approximately two years and involved, among other procedures and treatments, a double laminectomy resulting, however, in only
one laminectomy having properly fused; a rehospitalization where traction was used in an effort to relieve his pain; the recommendation which he rejected of further surgery to correct the previous unfused laminectomy; administration of analgesics, and other palliative regimes. He was discharged in June 1975, still in considerable pain, by his treating orthopedist, who testified in his behalf and whose opinion it was that his condition would remain static with no likely significant improvement. It was also this witness' opinion that petitioner could not "conceivably" return to any work requiring heavy labor, standing for lengths of time or bending or lifting. Petitioner has not in fact ever returned to work and believes himself unable to work because of his constant pain, for which he still takes daily medication, and because of the severe limitations of physical movement. His income is limited to a monthly social security disability payment of $319.
In further support of his claim of total disability petitioner relied on the testimony of a psychologist specializing in vocational rehabilitation and a forensic orthopedist as well as a written report from a forensic neurophychiatrist and from the New Jersey Division of Vocational Rehabilitation Services. It was the conclusion of the last that petitioner's inability, some two and a half years after the injury, to sit or stand for more than short periods of time effectively removed him from the competitive labor market and that no vocational goal was then feasible. The psychologist reached essentially the same conclusion based on his examination of petitioner. I.Q. testing placed him in the lowest 10 percentiles of the population and within the dull-normal range. His grade-level aptitude was fifth grade. Further intelligence, aptitude and personality testing persuaded the psychologist that the petitioner had only minimal reasoning and abstraction ability and although he might, albeit with difficulty because of his age, be trained to do a simple, repetitive task, his ultimate realistic work opportunities,
considering his physical disability as well, would be in sheltered employment or in a job provided by a "benevolent" employer. He further suspected that petitioner might have minimal brain damage. Petitioner's forensic psychiatrist found him to be suffering from a work-connected anxiety neurosis disabling him to the extent of 25% of permanent partial disability and the forensic orthopedist found him totally permanently disabled by reason of the back injury alone.
Respondent's proofs consisted of the testimony of its forensic orthopedist and the report of its forensic neuropsychiatrist. The latter concluded that petitioner was only minimally psychiatrically disabled. The orthopedist evaluated the back injury at 20% of permanent partial disability. His findings also included the observation that petitioner had no capacity to bend backwards and that he had limited capacity to bend forward and to rotate. While it was his opinion that petitioner would be employable in any job in which he did not have to bend backward, he did not suggest with particularity what such job might be available to a person experienced only in heavy manual labor, with seriously limited intellectual abilities and with a minimal primary education.
In dealing with these proofs the judge of compensation expressly found the petitioner to be "substantially credible." His one expressed reservation was that he felt petitioner to have somewhat exaggerated his reliance on the cane he was using. He did not, however, suggest that petitioner was a malingerer and his evaluation of the orthopedic injury at 60% of permanent partial is reflective of his acceptance of its serious nature and consequences.
Our disagreement with the judge's conclusions lies not in his evaluation of the back injury but in his refusal to find petitioner totally disabled as an odd-lot. Despite the recent reaffirmation of the odd-lot doctrine by the Supreme Court in such cases as Barbato v. Alsan ...