On appeal from a Final Judgment of the Division of Workers' Compensation.
Shebell and Matthews. The opinion of the court was delivered by Shebell, J.A.D.
The Second Injury Fund appeals the determination of the Division of Workers' Compensation finding petitioner Robert C. Zabita to be totally disabled and eligible for Fund benefits. The Fund contends the record contains no evidence of any pre-existing disabilities and therefore petitioner failed to establish Fund liability under N.J.S.A. 34:15-95. It also alleges error in finding total disability exclusive of petitioner's cardiac condition and in awarding temporary disability benefits to January 24, 1982, the date of petitioner's cardiac hospitalization.
Respondent Shop-Rite cross-appeals claiming error in the award of total disability and additional temporary disability benefits.
Petitioner Zabita also cross-appealed, however his brief was barred and his cross-appeal dismissed by order of December 5, 1985. We allowed him to file a brief and appendix nunc pro tunc in January of 1986. His counsel represented at oral argument that he has abandoned his cross-appeal.
On March 30, 1979 Zabita filed two claim petitions, alleging orthopedic, neurologic and neuropsychiatric injuries. Each claimed injury to the right knee. On May 17, 1979 both petitions were amended to include an allegation of total disability
under the "odd-lot doctrine." These injuries were alleged to have arisen out of and in the course of his employment with Chatham Shop Rite, Inc. On June 10, 1983 Zabita filed a verified claim petition to secure benefits from the Fund.
Petitioner first injured his right knee while working at the Chatham Shop Rite in 1972 when it was struck by falling boxes. In January of 1975 he reinjured the knee while stacking potatoes, resulting in a tear of the medial meniscus, cystic degeneration and synovitis. He required surgery for the torn meniscus and in April of 1978 was awarded 23 1/2 percent permanent disability of the right leg.
On June 18, 1977 petitioner fell from a pallet and again injured his right knee. He was out of work a couple of weeks and was under medical care for a few months. On June 24, 1978, while pushing a cart loaded with milk he felt extreme pain in the same knee. He received medical care the next day and was later hospitalized and an arthrotomy was performed. In September of 1978 he underwent additional knee surgery and his kneecap was removed.
He never returned to work after the 1978 accident and at the time of trial he was still under medical care. His right leg became atrophied. He complained of difficulty in sleeping and walking and that his knee buckles and cracks. There was swelling, limitation of flexion and need to use a cane for walking. On his doctor's advice he sought rehabilitation for the leg. Although he was a laborer he applied for office-related employment, but was not able to interview due to the cardiac episode of January of 1982. He testified that even office work would have been difficult due to the effort required in walking and the constant need for shifting of positions while seated.
The judge of compensation stated:
I am satisfied petitioner has suffered severe restriction of function of the right knee, together with psychiatric problems resulting from the anxiety state, and also that in combination with his pre-existing conditions he, in all medical probability, was ...