On appeal from the Superior Court, Appellate Division.
For modification and reinstatement -- Justices Mountain, Sullivan, Clifford and Schreiber. For affirmance -- Chief Justice Hughes and Justices Pashman and Handler. The opinion of the court was delivered by Schreiber, J. Pashman, J., dissenting. Hughes, C.J., and Handler, J., dissenting.
In this workers compensation case, the Appellate Division, one judge dissenting, modified an award of the Division of Worker's Compensation by holding that petitioner, John Bradley, Jr., fell within the odd-lot doctrine and was therefore entitled to an award of total disability. Respondent appealed to this Court pursuant to R. 2:2-1 (a) (2).
Petitioner, who had been employed by respondent in the furniture moving business, injured his back in 1973 when he attempted to lift, with the assistance of two fellow employees, a refrigerator which was resting on his back and loaded on a hand truck. He was disabled because of two resultant herniated discs, for which he underwent a double laminectomy which was only partially successful. The medical testimony offered by the respective parties differed as to the ultimate disability, petitioner's experts testifying to total disability based on orthopedic and neurological factors and respondent's experts asserting that the orthopedic disability was 20% of total and the neurological minimal. Judge Roger Kelly of the Division of Worker's Compensation resolved that petitioner had incurred a permanent partial disability of 60% of total, but rejected his claim of total disability.
A brief summary of the evidence on the odd-lot aspect of the case discloses that petitioner had completed the first year of high school, and that during the Korean War he had served in the Air Force as a platoon sergeant in an anti-aircraft battery and as a drill instructor. His treating physician, Dr. Wolkstein, testified that Bradley could do work which did not involve heavy lifting and standing for prolonged periods. Petitioner stated that he had not looked for any work even after he had been discharged by Dr. Wolkstein. Dr. Kesner, a clinical psychologist, testifying
on behalf of petitioner, thought that Bradley's ability to return to gainful employment "would be very difficult." He placed petitioner's mental capacity at an achievement level comparable to a fifth grade student, although conceding that he was mentally capable of working on an assembly line and doing a repetitive function. Dr. Kesner could not explain the apparent inconsistency between petitioner's military duties and the results of his psychological tests. Respondent's medical expert testified, on the other hand, that petitioner was capable of returning to work.
Judge Kelly concluded that petitioner was not unemployable by reason of a combination of mental or physical inadequacies as a matter of reasonable medical probability. The Appellate Division, however, upon its review of the evidence de novo, found that the odd-lot doctrine applied. It ignored Close v. Kordulak, 44 N.J. 589 (1965), by not limiting its inquiry solely to whether the findings made by the Judge of Worker's Compensation could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility and with due regard to his expertise. Id. at 599. Further, the court below ignored our directive in Germain v. Cool-Rite Corp., 70 N.J. 1 (1976), that the ultimate burden of proof in an odd-lot case is upon the petitioner. So, even if petitioner had made out a prima facie case of unemployability and respondent offered no proof of employment availability, the Judge of Worker's Compensation, when reviewing the entire record, might still find that petitioner had not satisfied his ultimate burden of proof. Id. at 9-10.
After reviewing the evidence in some detail at the conclusion of the hearing, Judge Kelly stated:
After careful consideration of all the evidence that has been adduced before me, I am persuaded that the petitioner is not at this time 100 percent permanently and totally disabled. At the outset, I had indicated there was an element of lack of credibility on
his part, and I point out at this time that the petitioner shows no motivation to get work. He is receiving workers' compensation benefits and $319 a month Social Security, and he is seeking additional workers' compensation benefits.
I do not believe that he has real use for the cane in getting about, and I feel that short of some additional effort on his part to obtain some suitable employment, the evidence as to ...