On appeal from a Final Determination of the Department of Labor, Division of Workers' Compensation.
Dreier and Baime. The opinion of the court was delivered by Baime, J.A.D.
This is an appeal from a determination of the Division of Workers' Compensation finding petitioner Jose Rafael Padilla permanently and totally disabled and awarding him an additional 30% for amputation of his hand as the result of an industrial accident. Petitioner's employer, Concord Plastics, Inc. (Concord), argues that (1) the compensation judge's application of the odd-lot doctrine was not grounded in sufficient credible evidence present in the record, (2) its motion to join the Second Injury Fund was erroneously denied and (3) the Workers' Compensation Act (N.J.S.A. 34:15-1 et seq.) does not permit the award of an amputation increment to a permanently and totally disabled claimant. While we find no merit in Concord's first two contentions, we agree that an amputation increment can be awarded only to a worker whose disability is partial and permanent. We hold that an amputation award cannot be granted to a claimant whose injury or condition has rendered him permanently and totally disabled.
The salient facts can be stated briefly. On November 30, 1983, petitioner was working at Concord's factory when a plastic molding machine crushed his right forearm, ultimately resulting in the amputation of his wrist and hand. After the accident, petitioner was admitted to Rahway Hospital, where he remained for 13 days. Following his discharge, petitioner was referred to a psychiatrist for evaluation and treatment. He thereafter returned to the hospital for a skin graft. Subsequently, petitioner received outpatient therapy to improve movement at the elbow. He was initially fitted with a "hook type" prosthesis, but it ultimately caused too much pain to be useful.
In late 1985, petitioner was given a full artificial arm. However, this device also caused pain and apparently served primarily a cosmetic purpose. At the time of the hearing, petitioner was unable to move the prosthesis without the support of his left arm. Petitioner's orthopedic expert testified that in addition to the 100% loss of the right hand, there was a 25% disability of the right arm due to the "flexion deformity" at the elbow.
Petitioner and his wife testified that he is no longer able to perform various personal and household tasks, including buttoning his clothing, bathing and shaving. Despite his attempts to seek employment, petitioner has been unable to obtain a job. This has resulted in severe depression. Petitioner testified, and his account was corroborated by his wife, that he suffers from recurrent bouts of insomnia, often has nightmares, and experiences "phantom pains" in his right arm. According to petitioner, he has a recurring "flashback" in which he observes his arm being crushed in the machine. This dominates his thoughts.
The record reflects that petitioner suffered two prior industrial injuries. Approximately 15 years ago, petitioner's left hand was fractured. Apparently, the fracture fully healed and it is uncontradicted that this injury had no lasting effect. A far more serious accident occurred in 1975. Petitioner injured three fingers of his right hand. This included a partial amputation of one finger. Following this accident, petitioner filed a claim and ultimately received an award of 27 1/2% of the right hand and eight percent of partial total for neuropsychiatric disability. Although petitioner testified that after the 1975 accident he occasionally suffered from headaches and dizziness, there was no evidence establishing continued psychiatric or medical treatment or any lasting impairment of his personal life or employment capability.
As we have noted, the 1975 injury was to the same hand that was amputated as a result of the 1983 accident. Petitioner's psychiatric expert testified that, based upon his examination of
May 22, 1985, petitioner suffered a neuropsychiatric disability of 50% for post-traumatic stress disorder with severe depression, requiring prolonged psychiatric treatment. He further testified that the 50% evaluation was wholly independent of the eight percent neuropsychiatric disability which followed the 1975 accident.
A vocational expert testified that petitioner was an unskilled laborer who was virtually unemployable after the amputation of the right forearm. This evaluation was based upon petitioner's age, language barrier, lack of education and employment skills, inability to adapt to the prosthesis and the severity of the injury and its psychiatric sequelae. In making this assessment, the witness heavily relied upon petitioner's personal background.
Because one of the issues before us is whether there is a basis in the record upon which the judge could reasonably have concluded, as he did, that petitioner was, by reason of the odd-lot doctrine, totally disabled, we recite this personal history in some detail. Petitioner, age 57, is married and the father of three children. Born in Puerto Rico, he attended school there through the second grade until he was orphaned and his formal education ceased. In 1959 or 1960, he moved to Perth Amboy and has resided there ever since except for a brief return to his homeland. Living and working in an almost exclusively Hispanic environment, petitioner has had little exposure to the English language. Although petitioner comprehends and can converse in English to a very limited extent, he can read and write only in Spanish. Because of his limited education, his arithmetic skills encompass only extremely simple problems.
While petitioner has an extensive employment history, his work skills even before the 1983 accident were very limited. While residing in Puerto Rico, petitioner was employed as a laborer cleaning coffee beans. In the United States, he worked, at varying times, as a dishwasher, material handler, welder, punch press machine operator and working foreman. It was as
a working foreman that petitioner operated the plastic molding machinery which caused the accident and the amputation of his hand and wrist.
Against this factual backdrop, the compensation judge found petitioner to be totally disabled under the odd-lot doctrine. In making that determination, the judge noted that "petitioner's medical injuries [emanating] from the accident exceed[ed] 75% of partial permanent." These included amputation of the hand, "100% for the loss of the remaining portion of the arm and shoulder as well as [the] disability for the scar at the donor site" caused by the skin graft and the psychiatric sequelae resulting from the accident. ...