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McCool v. Western Electric/At & T Technologies Inc.

Decided: November 29, 1988.

JACQULYNNE ANN MCCOOL, PLAINTIFF-APPELLANT,
v.
WESTERN ELECTRIC/AT & T TECHNOLOGIES, INC., ETC., DEFENDANT-RESPONDENT



On appeal from Superior Court, Division of Workers' Compensation.

Shebell, Gruccio and Landau. The opinion of the court was delivered by Landau, J.A.D.

Landau

Jacqulynne McCool appeals from that part of a judgment of the Division of Workers' Compensation dated June 18, 1987 on her claim against respondent Western Electric/AT & T Technologies, Inc. which awarded her 17.5% of partial total for orthopedic disability and 2.5% of partial total for neurological disability arising out of an industrial accident on May 17, 1982.

The matter was conducted in summary fashion as an "accelerated award" proceeding under practices of the Division of Worker's Compensation. N.J.S.A. 34:15-57. The sole issue was the extent of her disability.

Under the accelerated procedure, the Compensation Judge heard testimony only from McCool. In addition, he had the benefit of reports from her orthopedic expert who concluded that she suffered from orthopedic impairment amounting to 37 1/2% of total and an assessment by her neurological expert which fixed neurological disability at 20% of total. Reports submitted by respondent's expert fixed McCool's disability at 8 1/2% of partial total.

By order dated November 9, 1987, we denied McCool's pro se motion to supplement the present record with additional medical reports which assertedly supported her current contention of total disability, in contrast to the reports of her previous experts. The reports attached to that motion actually did not address the extent of her disability, but suggested that she might benefit from further remedial surgery. Those reports

were incorporated in McCool's appendix. It is not our understanding that McCool is presently foreclosed from requesting leave for additional surgery or from seeking to institute a worsened disability contention under N.J.S.A. 34:15-27. Accordingly, the present appeal properly raises only the question of adequacy of the disability award, based upon the record before the Compensation Judge.

McCool's testimony was essentially undisputed, except as inferentially contradicted by the medical report of respondent's expert. She had an industrial accident on May 17, 1982, and said that she was not able to "do any physical employment" since August 1984. A laminectomy was performed in November 1985, but her complaints persist. She cannot tolerate the pain caused by standing more than five or ten minutes and must stop household activities after only "a little bit" or "I'll go into traction," which is hooked up to her bed at home. She must be turned over by her husband if she happens to roll on her back at night because "I feel I'm nailed to the bed, and its a great deal of pain all the time." The pain is "in the center of the back to the head and all the way down to my leg." Her toes have been numb since the surgery. She cannot stand without pain, and cannot "play ball . . . and things like that" with her children anymore. Her right ankle is also numb.

The Judge of Compensation made the following findings and conclusions:

I've taken this Petitioner's testimony and reviewed the medical records which have been submitted into evidence, and I find that the Petitioner has sustained the burden of proof which would entitle her to an award on the basis of 17 and one-half percent of partial total for orthopedic sequelae, and in addition thereto an additional 2 and one-half percent of partial total for neurological sequelae for the residuals of a herniated disc surgery. This would entitle the petitioner to 20 percent of partial total or 120 weeks at the $58 rate totalling $6,960.

McCool urges that we remand for additional findings of fact, contending that the evidence demonstrated that her working ability and ability to carry out the ordinary pursuits of life were far more materially lessened than recognized by the cumulative ...


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