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Perez v. Pantasote Inc.

Decided: January 17, 1984.


On certification to the Superior Court, Appellate Division.

For remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. Opposed -- None. The opinion of the Court was delivered by Schreiber, J.


[95 NJ Page 108] This case presents for our review the interpretation of the newly adopted provision of the Workers' Compensation Act, defining for the first time what constitutes "[d]isability permanent in quality and partial in character." N.J.S.A. 34:15-36

(West Supp.1983-84). The pertinent issues arose in a workers' compensation proceeding instituted by the petitioner, Miguel Perez, to obtain compensation for permanent partial disability due to an accident arising out of and in the course of his employment with the respondent Pantasote, Inc.


The accident occurred on January 23, 1980 when the petitioner, a material handler, was working for the respondent, his employer. While he was moving a drum down a ramp, his right foot slipped and he twisted his ankle. Petitioner worked for two days thereafter and was then out of work for six days. He received six or seven whirlpool treatments at respondent's clinic and was given an elastic bandage, which he used for some time.

Upon returning to work, petitioner resumed his original eight-hour-a-day, seven-day-a-week schedule. His work functions remained the same as before the accident. However, he claimed that he could not lift bags "as fast as [he] used to do it. I got to watch myself on it." He also testified that his ankle would swell up after he walked or ran, particularly in the summer. Finally, he asserted that he had pain in his ankle when he walked upstairs and when the weather changed.

Petitioner made no claim for temporary disability. With respect to his permanent disability claim, he asserted a claim for earnings of $400 per week because of his seven-day, 56-hour work week. It was conceded that, if the injury were compensable, he would be entitled to the maximum statutory allowance of $47 per week.

Dr. Sall testified for the petitioner. He had examined petitioner on July 25, 1980, approximately six months after the accident. His examination disclosed the following conditions: lateral malleolar fullness, inframalleolar doughiness and Achilles' thickening. He also noted that ankle dorsiflexion lacked 15 degrees; plantar flexion, 10 degrees; inversion and internal rotation, 15 degrees; and external rotation and eversion,

10 degrees. He stated that the objective conditions that existed would restrict the function of the ankle in the described manner. He also testified that, assuming the petitioner could not carry as much weight or endure as much strain when lifting as before the accident, the injury had probably lessened petitioner's working ability. The doctor concluded that petitioner had suffered a lateral strain of the right ankle and evaluated permanent disability at 20% of the right foot. In his opinion, the condition was static.

Dr. Suermann testified for the respondent. He had examined the petitioner on January 27, 1981, approximately six months after Dr. Sall's examination. He found no abnormality in the ankle, a full range of motion, and no permanent disability. He did note, however, that the petitioner had complained that his ankle swelled "when he was on it a great deal."

The Judge of Compensation found that there was some residual functional disability; that there had been improvement since Dr. Sall's examination; and that the disability was "a little more than the normal here, some functional disability, which amounts to five percent of the foot; 11 1/2 weeks at $47, $554.50." Upon respondent's appeal, the Appellate Division affirmed. We granted respondent's petition for certification. 93 N.J. 310 (1983).


N.J.S.A. 34:15-36 reads in pertinent part as follows:

"Disability permanent in quality and partial in character" means a permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee's working ability. Subject to the above provisions nothing in this definition shall be construed to preclude benefits to a worker who returns to work following a compensable accident even if there be no reduction in earnings. Injuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant permanent disfigurement, and occupational disease of a minor nature such as mild dermatitis and mild

bronchitis shall not constitute permanent disability within the meaning of this definition. [ N.J.S.A. 34:15-36 (West Supp.1983-84).]

This provision was enacted as a part of extensive amendments of the workers' compensation law that became effective January 10, 1980. L. 1979, c. 283. It has been said that these amendments "represent the most comprehensive reforms in the history of New Jersey's workers' compensation laws." Kumpf, "Occupational Disease Claims Under the Workers' Compensation Reforms," 12 Seton Hall L.Rev. 470 (1982). One of the most significant changes was the addition of the paragraph quoted above, which for the first time set forth a statutory definition of partial permanent disability.

Prior to this amendment, the workers' compensation statute had prescribed a schedule governing permanent partial disability, which provided for a specific number of weeks' compensation for the loss of certain members of the body. N.J.S.A. 34:15-12 c (1959). That section had also stated:

In all lesser or other cases involving permanent loss, or where the usefulness of a member or any physical function is permanently impaired, the duration of compensation shall bear such relation to the specific periods of time stated in the above schedule as the disabilities bear to those ...

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