On appeal from judgment of Division of Workers' Compensation.
Before Judges Brody and Stern.
The opinion of the court was delivered by STERN, J.A.D.
This is an appeal by an employer contending that "as a matter of law" a workers' compensation award was made in violation of N.J.S.A. 34:15-36 because petitioner's injury was "relatively minor in nature."
Petitioner fell while removing cardboard from a baling machine and was awarded temporary disability benefits for the time he was out of work. The only issue remaining for trial was whether petitioner was entitled to an award for permanent partial disability within the meaning of N.J.S.A. 34:15-36. The Judge of compensation found that petitioner suffered such an injury and awarded him "5 percent of partial total disability."
We agree with the employer that N.J.S.A. 34:15-36 was designed to "eliminate awards for minor partial disabilities." See Perez v. Pantasote, Inc., 95 N.J. 105, 114, 469 A.2d 22 (1984). That statute requires "a permanent impairment . . . based upon demonstrable objective medical evidence [of an injury or disease] which restricts the function of the body or of its members or organs." However, given our scope of review, Close v. Kordulak Bros., 44 N.J. 589, 599, 210 A.2d 753 (1965), we conclude that there is sufficient credible evidence in the record to support the determination of the trial Judge and that we must affirm the finding of 5% permanent partial disability. We cannot conclude that a 5% award is "so minor that the injury was not compensable" as a matter of law. Perez v. Pantasote, Inc., supra, 95 N.J. at 115. The Legislature has not provided a percentage of disability which is non-compensable.
Petitioner was employed by respondent as a grocery stock clerk. While pulling crushed cardboard out of a bale machine on June 29, 1991 he fell "flat [on his] back" and was rendered "unconscious" for a short time. He was taken to St. Joseph's Hospital where a CAT scan and x-rays proved negative, and he was discharged directly from the emergency room without admission to the hospital.
On July 2, 1991 petitioner was examined at respondent's clinic by Dr. Armijos who found no objective signs of injury. Dr. Armijos, however, referred petitioner to Dr. John Ambrose, an orthopedic surgeon who, following an examination on July 11, 1991, reported:
He did not spontaneously report any symptoms in the arms or legs. Physical exam revealed a 28-year-old man whose posture and attitude reflected mainly his attempt to appear to be in some kind of distress. I would describe his behavior during the examination as transparently theatrical. He basically pretended to be unable to understand commands and to be unable to carry out anything that was asked of him. He would neither bend forward or backward at the waist, would not rise up on his toes and would not dorsiflex his feet. Reflexes in the lower extremities were brisk and symmetrical. When pinprick testing was carried out, he seemed to be in a dilemma as to how he should answer. He did not answer spontaneously, even though he was directed to respond by stating whether or not pinprick was "sharp" and whether it felt the same on both sides. He seemed to be hesitating and trying hard to figure out what response would be the most advantageous.
We checked his X-ray reports at St. Joseph's Hospital and found out that he had a negative CT scan of the brain, and negative cervical spine. His lumbosacral X-rays revealed basically scoliosis and transitional vertebrae but no evidence of trauma.
I could find no evidence of an actual injury because this patient was obstructive and transparently exaggerating his complaints, if not fabricating them altogether. Giving him the fullest benefit of the doubt, I am calling his condition a "lumbosacral sprain" and I am giving him prescriptions for physical therapy and for a mild muscle relaxant-pain reliever. I am not convinced, however, that he has any recognizable orthopedic injury at all, especially because of his overall demeanor during the examination. He is supposed to be reevaluated here in two weeks.
Petitioner went to the physical therapy as prescribed by Dr. Ambrose "a couple of times." The physical therapy consisted of "heat treatment and some exercises."
On July 25, 1991 petitioner returned to Dr. Ambrose for further evaluation. As a result of the second examination, Dr. Ambrose concluded:
He is essentially continuing what appears to be a transparent charade of pretending to be in too much pain to talk or think, or even hold his eyes open during the examination. He winces and makes intense facial grimacing when being questioned. He cannot bring himself to state whether a pinprick is sharp or not when he is touched on the lower extremities. He allows straight leg raising, the one thing which is likely to cause pain if he has any kind of genuine problem, but he doesn't allow anything else in the way of low back testing. He does not bend forward or backward on command. He walks slowly but in a non-descript manner, certainly he does not seem to have ...