On certification to the Superior Court, Appellate Division, whose opinion is reported at 199 N.J. Super. 145 (1985).
For affirmance -- Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Garibaldi, J.
[102 NJ Page 403] These four cases require us to interpret the Workers' Compensation Act, N.J.S.A. 34:15-36, which defines permanent partial disability. The questions presented are: (1) whether the statutory definition's requirement of "demonstrable objective medical evidence" applies to claims of psychiatric disability; (2) if so, what constitutes demonstrable objective medical evidence of psychiatric disability; and (3) whether there is sufficient
evidence in these cases to meet this requirement and thus to support petitioners' awards of permanent partial psychiatric disability.
Petitioners, Saunderlin, Fermano, Cooper and Thompson, are employed by respondent, E.I. DuPont Co. Each filed a workers' compensation claim against DuPont, alleging physical and psychiatric disability (pulmonary asbestosis and anxiety) attributable to exposure to toxic fumes, dust chemicals, and asbestos. In all cases, respondent stipulated that petitioners during their employment had a potential for exposure to asbestos, and every petitioner has undisputed x-ray evidence of pleural thickening and asbestosis.
In the Division of Workers' Compensation, the same Judge of Compensation heard the claims of Saunderlin, Fermano, and Thompson. He awarded Saunderlin a ten-percent permanent partial physical disability for pulmonary disorder, but denied Fermano's and Thompson's parallel claims. The Judge, however, granted each petitioner an award of permanent partial psychiatric disability for anxiety reaction or cancer-phobia (the extreme fear of developing cancer in the future as a result of the past exposure). He noted this state's long history of recognizing psychiatric as distinguished from physical disability claims, and stated that requiring claims of permanent partial psychiatric disability to be based upon demonstrable objective medical evidence did not comport with his understanding of the psyche. He therefore concluded that this requirement did not apply to psychiatric disability claims of the sort that Saunderlin, Fermano, and Thompson raised. The Judge of Compensation who heard Cooper's claim reached the same conclusion through similar reasoning. Accordingly, in every case the petitioner received an award for permanent partial psychiatric disability.
DuPont appealed to the Appellate Division in all four cases. The appeals were limited solely to the question whether N.J.S.A.
34:15-36 requires "demonstrable objective medical evidence" of permanent partial psychiatric disability. Inasmuch as the four appeals involved a common legal issue, the Appellate Division consolidated them for the purpose of disposition. Holding the requirement of "demonstrable objective medical evidence" applicable to claims for permanent partial psychiatric disability, and finding such evidence lacking in each of these cases, the Appellate Division reversed the awards to all four employees. Saunderlin v. E.I. du Pont Co., 199 N.J. Super. 145 (App.Div.1985). We granted the employees' petitions for certification, 101 N.J. 299 (1985), and now affirm the judgment of the Appellate Division.
The initial question is whether the statutory definition's requirement of "demonstrable objective medical evidence" applies to permanent partial psychiatric disability claims, just as it undoubtedly applies to permanent partial physical disability claims. N.J.S.A. 34:15-36, whose relevant provisions were enacted as part of the 1979 amendments to the Workers' Compensation Act,*fn1 defines permanent partial disability 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.
This definition neither includes nor excludes claims of psychiatric disability. The definition of permanent total disability, in contrast, mentions both sorts of impairment:
"Disability permanent in quality and total in character" means a physical or neuropsychiatric total permanent impairment caused by a compensable accident or compensable occupational disease where no fundamental or marked improvement in such condition can be reasonably expected.
The parties disagree concerning the inferences to be drawn from the presence of "physical or neuropsychiatric" in the latter definition and its absence in the former.*fn2
Neither standing alone nor taken together do the words of these definitions resolve this ambiguity. We are persuaded, however, by our review of the whole statutory scheme before and after the 1979 amendments, and of the legislative history surrounding those amendments, that the requirement of demonstrable objective medical evidence applies to permanent partial psychiatric disabilities as well as to physical disabilities.
First, we consider the definition of permanent partial disability in relation to the whole statutory scheme before and after the 1979 amendments. Under N.J.S.A. 34:15-7, personal injuries to employees "arising out of and in the course of employment" (with exceptions not relevant here) are compensable. Since Sigley v. Marathon Razor Blade Co., 111 N.J.L. 25 (E. & A. 1933), New Jersey courts have recognized that these general criteria may be satisfied by either physical or psychiatric injuries to the person, and hence that psychiatric disability apart
from physical disability may be an independent compensable workers' compensation claim.
N.J.S.A. 34:15-12(a) to (c) sets forth a schedule of compensation for injury producing: (a) temporary disability; (b) disability total in character and permanent in quality; and (c) disability partial in character and permanent in quality. Subsection (c) encompasses both "schedule" and "non-schedule" compensation for permanent partial disability -- (c)(1) to (21) establishing a schedule of compensation for enumerated physical injuries, and (c)(22) providing for compensation "[i]n all lesser or other cases" of non-scheduled disabilities.*fn3 ...