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Saunderlin v. E.I. Du Pont Co.

Decided: February 28, 1985.

EDWARD SAUNDERLIN, PETITIONER-RESPONDENT,
v.
E.I. DU PONT COMPANY, RESPONDENT-APPELLANT. WILLIAM THOMPSON, PETITIONER-RESPONDENT, V. E.I. DU PONT COMPANY, RESPONDENT-APPELLANT. ALPHONSE FERMANO, PETITIONER-RESPONDENT, V. E.I. DU PONT COMPANY, RESPONDENT-APPELLANT. DOUGLAS COOPER, PETITIONER-RESPONDENT, V. E.I. DU PONT COMPANY, RESPONDENT-APPELLANT



On appeal from the Division of Workers' Compensation, Department of Labor.

Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by Greenberg, P.J.A.D.

Greenberg

These matters come on before this court on appeals from judgments entered in the Division of Workers' Compensation. In each case the judge of compensation made an award for psychiatric disability attributable to petitioner's exposure to asbestos. While certain rulings were made by reason of petitioners' physical conditions, no appeals have been taken from these dispositions and thus we do not set them forth. What we are concerned with are the awards for partial, permanent psychiatric disability. Inasmuch as the appeals involve a common legal issue we consolidate them for purpose of disposition. The legal issue is whether an award for partial, permanent psychiatric disability may be made though not based on demonstrable objective medical evidence as required by N.J.S.A. 34:15-36, as amended by L. 1979, c. 283, § 12, in partial, permanent disability cases. In each case the judge of compensation held that an award for partial, permanent psychiatric disability could be given even in the absence of demonstrable objective medical evidence upon which the award could be based. There was no finding in any of the cases of demonstrable objective medical evidence to support the petitioner's claim of psychiatric disability.

We conclude that the judges misinterpreted the amendments to the workers' compensation act in L. 1979, c. 283, § 12, and consequently the judgments must be reversed. We hold that an award for partial, permanent disability cannot be made in a psychiatric case unless based on demonstrable objective medical evidence. Because of this conclusion we have determined to set forth our basis for it and then consider whether there was demonstrable objective medical evidence which could support any of the awards, for if we found such evidence in any

case we would remand it to the Division of Workers' Compensation for reconsideration under the standards we set forth.

The four cases were heard by two judges of compensation. The judge in the Saunderlin, Thompson and Fermano cases viewed the question before him as whether psychiatric disability still exists in the law in partial, permanent disability cases. He pointed out the long recognition of claims based on psychiatric bases. He then indicated a requirement that there be demonstrable objective medical evidence to support a claim of partial, permanent psychiatric disability did not comport with his understanding of an analysis of the Psyche. The judge thought that a psychiatric evaluation must be based upon the subjective concerns of the person being examined. The judge in the Cooper case pointed out that N.J.S.A. 34:15-36 does not mention psychiatric conditions in partial, permanent disability cases. He questioned how much objectivity could be found in cases involving claims for psychiatric disability. In each case the judge, after concluding that demonstrable objective medical evidence was not required, accepted the evidence of the petitioner's expert that the petitioner had a partial, permanent disability on a psychiatric basis. Consequently each petitioner received an award for partial, permanent disability for a psychiatric condition even though the judge of compensation did not find it to be evidenced by demonstrable objective medical evidence.

N.J.S.A. 34:15-36, the section of the workers' compensation act involved on this appeal, provides in pertinent part:

'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.

This provision of N.J.S.A. 34:15-36 was included in the amendments of the workers' compensation law adopted in L. 1979, c. 283, effective January 10, 1980, which the parties agree govern these cases. The definition of partial, permanent disability was the first statutory definition of such disability, see Perez v. Pantasote, Inc., 95 N.J. 105, 111 (1984), and was intended to narrow the types of injuries for which awards could be made for such disability. The definition thus advanced the purposes of the 1979 amendments which were to eliminate awards for minor partial disabilities, to increase awards for the more seriously disabled and to contain the overall cost of workers' compensation. Id. at 114.

Inasmuch as it was well established before 1979 that in an appropriate case an award could be made for partial, permanent disability based on psychiatric disability the Legislature must have been aware that such claims were made. See Englishman v. Faber Cement Block Co., 137 N.J. Super. 313 (App.Div.1975). Yet it did not exclude claims based on psychiatric conditions from its requirement that there be demonstrable objective medical evidence for a claim of partial, permanent disability. Accordingly the judges of compensation made rulings directly contrary to N.J.S.A. 34:15-36 in allowing awards of partial, permanent psychiatric disability without finding that there was demonstrable objective medical evidence to support the claims.

Petitioners argue the requirement that there be demonstrable objective medical evidence to support a claim of partial, permanent disability cannot apply in psychiatric cases because N.J.S.A. 34:15-36 focuses on conditions causing restrictions of the functioning of the body or its organs or members. We disagree. We see no reason why the Legislature would have not wanted to limit psychiatric claims to those resulting in physical consequences. Indeed it seems to us that if a condition could

be compensable though not having such consequences the purpose of the 1979 amendments would be circumvented.

We find an additional reason within N.J.S.A. 34:15-36 to believe the requirement that an award of partial, permanent disability must be based upon demonstrable objective medical evidence applies in psychiatric cases. The 1979 amendments defined total and permanent disability to include physical and neuropsychiatric impairments. Thus it is clear that the Legislature in considering impairments under N.J.S.A. 34:15-36 did not overlook psychiatric conditions. Indeed it could reasonably be contended that by including neuropsychiatric impairments in the definition of total, permanent disability and not expressly including them in the definition of partial, permanent disability the Legislature intended to eliminate psychiatric claims in partial, permanent cases. But we do not so hold. We are satisfied that an award may be made for partial, permanent disability in a psychiatric case provided the conditions of N.J.S.A. 34:15-36 are satisfied.

Petitioners assert the requirement that a partial, permanent disability be based on demonstrable objective medical evidence cannot apply in a psychiatric case because a psychiatric diagnosis is largely based on the subjective complaints of the patient. Thus the requirement would in fact eliminate recovery in any psychiatric case. While there can be no doubt that the requirement will eliminate many claims, the records in these cases do not support petitioners' contention. The expert testimony presented by both petitioners and respondent indicates that there may be objective indicia of psychiatric disabilities. Dr. Richard D. Rubin, an expert witness on psychiatric problems called by petitioners, indicated that in cases of generalized anxiety disorder the following diagnostic criteria (among others) might appear: trembling, eyelid twitch, strained face, sweating, diarrhea, ...


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