On appeal from the Division of Workers' Compensation.
Before Judges Skillman and Kestin.
The opinion of the court was delivered by KESTIN, J.A.D.
Petitioner's duties as an employee in respondent's deli department included lifting and moving heavy boxes of food. While performing such a task, petitioner suffered a left inguinal hernia requiring surgical repair. Her recovery was unremarkable and she was back at work less than three months later. About four-and-one-half months after her return to work, petitioner, while performing a similar task, suffered a right inguinal hernia. Three-and-one-half months after surgical repair of the second hernia, she was released from her surgeon's care. Petitioner did not return to her employment with respondent, however. She filed three claim petitions instead. One sought permanent disability for the first hernia; another sought permanent disability for the second hernia; and the third, as amended, embodied a claim for permanent disability based on occupational disease occasioned by repeated hernias. The claims were consolidated for the purposes of the workers' compensation hearing.
The evidence in three hearing sessions came from the testimony of petitioner herself and a physician for each party. Dr. Goodman, a specialist in internal medicine, testified for petitioner; Dr. Lohman, a specialist in orthopedic surgery, testified for respondent. Neither physician had treated petitioner.
It is clear from the record that petitioner had no complaints after the first hernia was repaired. She returned to work and resumed her duties. There was no evidence that after her recovery from surgery, petitioner experienced significant pain, discomfort, or any sense of physical limitation*fn* as a result of that injury or its aftereffects. Therefore, the Division was correct to conclude that no permanent impairment had been established in respect of the first hernia and the dismissal of that petition is affirmed.
With regard to the second hernia, petitioner testified that while lifting heavy items, she experienced a sharp pain which was later diagnosed as a second hernia, on the right side. This hernia was repaired surgically but petitioner continued to experience pain, throbbing, swelling, and other discomforts upon prolonged sitting, exertion or fatigue, and in poor weather. Acting on her surgeon's advice to seek employment that did not require heavy lifting, petitioner did not return to her job with respondent. She made plans to attend a state retraining program, but the program was eliminated for lack of funds. She became employed in other work, first selling souvenirs in a zoo and then as a part-time waitress in a pizza restaurant. The longest period petitioner had gone without pain since experiencing the second hernia was three or four days. The clear import of petitioner's testimony was that the pain and discomfort she had regularly felt since the second hernia occurred limited her working ability, her earning capacity, and her pursuit of everyday tasks.
Dr. Goodman opined in a conclusory fashion that petitioner "was suffering from bilateral indirect inguinal hernia with surgery for which she has a permanent internal medical disability of 25 percent. . . ." The focus of Dr. Goodman's testimony was on petitioner's hernias and upon her complaints of pain and discomfort. He testified that the objective indicia of her condition were the external scars and the surgical and hospital records of petitioner's surgeries. He knew from his experience that internal scar tissue was present. Dr. Goodman testified that the hernias were caused by the work effort, and that petitioner's complaints of pain and discomfort were "residuals of these hernias with the surgery."
Dr. Lohman, in an equally conclusory fashion, testified that he found no demonstrable medical evidence of a permanent disability, only a well repaired and well healed bilateral hernia. The external scars, in his opinion, constituted no significant disfigurement.
The workers' compensation Judge summarized the medical evidence as follows:
Dr. Goodman found that the hernias were related to her specific accidents. He found that the pain that the Petitioner complained about was in keeping with the repaired hernia. He testified that since the hernias had been operated on they were no longer existing but because of the physiology of bilateral hernias, there would be scar tissue remaining, although he admitted that he could not see the scar tissue but it was because of this that he found the permanent disability.
Dr. Lohman testified on behalf of the Respondent and Dr. Lohman testified that there was no demonstrable objective medical evidence of any disability restricting the function of the Petitioner's body. That the only objective findings he could find were scars that did not in any way restrict the function of the Petitioner's body.
The Judge went on to deny petitioner's claim, holding that her condition was not a permanent disability within the intendment of N.J.S.A. 34:15-36 as interpreted by Perez v. Pantasote, Inc., 95 N.J. 105, 469 A.2d 22 (1984). The Judge concluded that there had been no adequate showing of "demonstrable objective medical evidence of permanent impairment which restricts the function of the body or any of its members or organs," which he articulated as the basic criteria to be satisfied. Dr. Goodman was depicted as testifying that petitioner's scars were the only objective evidence he could find of limitations on her ability to work or otherwise function as a human being.
We regard the workers' compensation Judge to have erred in applying the statutory criteria found in N.J.S.A. 34:15-36. Accordingly, as to the remaining petitions, we ...