On appeal from Division of Workers' Compensation.
Botter and O'Brien. The opinion of the court was delivered by Botter, P.J.A.D.
Petitioner appeals from a judgment denying her compensation for disability resulting from a back injury suffered at work. We reverse and remand because of the erroneous exclusion of certain documentary evidence and to require more specific findings upon consideration of all the evidence.
Petitioner filed two claim petitions asserting that she injured her back at work while moving a box of gallon containers on May 2, 1980 and while lifting a metal chair on September 26, 1980. Petitioner's expert, Dr. Shaw, testified that strains of her lower back resulted in partial permanent disability estimated at 15% of total. These findings were said to include disability from a sciatic nerve involvement to the extent of 2 1/2% of total disability which overlapped with the 12 1/2% of total permanent neuropsychiatric disability estimated by petitioner's expert, Dr. Pollack.
Petitioner's employer produced medical expert testimony which refuted these claims, although an orthopedist who testified for the employer stated that he estimated petitioner's permanent orthopedic disability at 2% of total resulting from a lumbosacral strain. This degree of disability was attributed to the two accidents in 1980 for which claim petitions were filed, as well as a back injury occurring in June 1979 for which petitioner did not file a compensation claim.
Based on all of the evidence before him, the judge of compensation rejected entirely the claim for neurological and psychiatric disability. He also rejected the claim for orthopedic disability, stating that "from the testimony of Dr. Shaw, there was
very little evidence of any objective findings." This statement referred to the standard in N.J.S.A. 34:15-36 which defines permanent disability to mean "a permanent impairment . . . based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs . . . [considering as a factor any] lessening to a material degree of an employee's working ability." The statute further provides that minor contusions and strains shall not constitute permanent disability within the meaning of this statute. See Perez v. Pantasote, Inc., 95 N.J. 105, 116-118 (1984).
On this appeal petitioner contends that the proceedings below were tainted by bias on the part of the judge of compensation. Although we disagree with the rulings of the compensation judge in rejecting certain documentary evidence, namely, office records and reports of the treating physician, Dr. Glass, we reject the contention that petitioner was prejudiced by bias of the judge of compensation. We conclude, also, that his rejection of the claim for psychiatric disability was supported by substantial credible evidence. See DeAngelo v. Alsan Masons, Inc., 122 N.J. Super. 88 (App.Div.), aff'd on opinion below, 62 N.J. 581 (1973).
With respect to the type of evidence that may be admitted at a hearing on a compensation claim petition, N.J.S.A. 34:15-56 provides that, "exclusive of ex parte affidavits . . . the official conducting the hearing shall not be bound by the rules of evidence." The purpose of this section was to simplify the nature of proof that can be offered without regard to technical exclusionary rules of evidence. Thus, hearsay evidence need not be excluded, although the ultimate award must be based on legally competent evidence. Gilligan v. International Paper Co., 24 N.J. 230, 236 (1957). We find the rulings of the judge of compensation in this case overly strict and, in some cases, erroneous.
At first the trial judge refused to admit into evidence the records of the Somerset Medical Center which were certified
by the custodian of those records as full and complete records made in the regular course of business at the time the services were rendered. This ruling was incorrect. Even under the rules of evidence, proof to establish the conditions (foundation) for the admissibility of business records may be presented by affidavit or certification, since, under Evid.R. 8(1), the rules of evidence do not apply to proofs submitted of a condition for the admissibility of other evidence. See State v. Cardone, 146 N.J. Super. 23 (App.Div.1976), certif. den. 75 N.J. 3 (1977); Comment on Rule 63(13), Report of the New Jersey Supreme Court Committee on Evidence (1963), at 186-187; R. 1:4-4(b) (certification in lieu of affidavit). The Report notes that Evid.R. 63(13) does not require, as did N.J.S.A. 2A:82-35, that the "custodian or other qualified witness" must testify as to the identity and mode of preparation of the business record. It notes further that Evid.R. 8(1), providing that exclusionary rules of evidence do not apply to preliminary inquiries on admissibility, applies to this foundation evidence. Report at 186. The Report specifically states that an ...