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Darmetko v. Electron Technology and

Decided: October 2, 1990.

JEANETTE DARMETKO, PETITIONER-APPELLANT,
v.
ELECTRON TECHNOLOGY AND STATE OF NEW JERSEY, RESPONDENTS-RESPONDENTS



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

Pressler and Baime. The opinion of the court was delivered by Baime, J.A.D.

Baime

The sole question presented by this appeal concerns the constitutionality of N.J.S.A. 34:15-36. That statute requires injured workers to be seventy-five percent disabled before factors other than physical or neuropsychiatric impairments are considered in the determination of permanent total disability. Petitioner contends that the statutory restriction runs afoul of due process and equal protection. We disagree and affirm.

Petitioner, a 63 year old factory worker, fell while performing her employment duties, fracturing her right hip. During her hospitalization, petitioner underwent a total hip replacement. Following her discharge from treatment, petitioner contacted her employer and was told that she had been replaced.

The accident and surgery have substantially impaired petitioner's physical abilities. She is unable to bend down, handle heavy objects, walk moderate distances or stand for a lengthy period of time. Petitioner experiences pain in her limbs and is unable to perform many household chores.

Petitioner's attempts to obtain employment have been futile. All of her work experience has been in a factory setting and her education is extremely limited. A rehabilitation counselor testified that petitioner is unemployable in the current market by reason of her lack of education, training and job related skills coupled with the physical and psychological impairments caused by the accident and surgery. At present, petitioner is collecting unemployment, social security and pension benefits.

The compensation judge awarded 55 percent partial permanent disability.*fn1 The judge noted, however, that had it not been for the statutory restriction contained in N.J.S.A. 34:15-36, he "would have [had] no hesitancy in declaring [petitioner] eligible for total disability payments under the odd lot doctrine. . . ."

N.J.S.A. 34:15-36 reads in pertinent part as follows:

"[d]isability 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.

Factors other than physical and neuropsychiatric impairments may be considered in the determination of permanent total disability, where such physical and neuropsychiatric impairments constitute at least 75% or higher of total disability.

All parties agree that this section precludes consideration of such factors as age, education, intelligence, training, communication skills and other personal and cultural deficits unless the physical and neuropsychiatric impairments suffered by the injured worker constitute 75 percent of his or her total disability. The clear intent of the Legislature was to limit application of the odd lot doctrine.

In New Jersey, the odd lot doctrine had its genesis in Kalson v. Star Elec. Motor Co., 15 N.J. Super. 565, 83 A.2d 656 (Cty.Ct.1951), aff'd, 21 N.J. Super. 15, 90 A.2d 514 (App.Div.1952). The doctrine "imposes upon the employer responsibility for a worker whose unemployability on a regular ...


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