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Porter v. Elizabeth Bd. of Educ.

April 11, 1995

DONALD PORTER, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
ELIZABETH BOARD OF EDUCATION, RESPONDENT-APPELLEE/CROSS-APPELLANT.



On appeal from Judgment of the Division Of Workers' Compensation.

Approved for Publication April 11, 1995.

Before Judges Shebell and Kleiner. The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

SHEBELL, P.J.A.D.

Petitioner, Donald Porter, appeals from a judgment of the Division of Workers' Compensation, dated December 13, 1993, that denied petitioner any award for permanent disability arising out of an injury suffered while he was working for respondent, Elizabeth Board of Education. Respondent cross appeals arguing that petitioner's January 15, 1992 injury was not a compensable accident and that the "Judge erred in awarding the petitioner temporary disability over the summer months."

I

We first direct our attention to petitioner's assertion that the Judge erred in his Conclusion "that the Petitioner has failed to establish his burden on the issue of permanent disability, and, therefore, . . . he has no permanent disability pursuant to N.J.S.A. 34:15-36." We agree that the Judge erred, both factually and legally, in this determination.

In the recent case of Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 650 A.2d 1025 (App. Div. 1994), we again cited the primary purpose of the 1980 amendment to N.J.S.A. 34:15-36: "to eliminate awards for minor partial disabilities, to increase awards for the more seriously disabled, and to contain the overall cost of workers' compensation." Perez v. Monmouth Cable Vision, supra, 278 N.J. Super. at 282-83 (citing Perez v. Pantasote, 95 N.J. 105, 114, 469 A.2d 22 (1984)). Here, however, the Judge erred by interpreting too strictly the statutory definition of permanent partial disability and the Perez v. Pantasote court's instruction regarding the application of that section.

Under N.J.S.A. 34:15-36 permanent partial disability is defined as:

a permanent impairment caused by a compensable accident or compensable occupational disease based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee's working ability. Subject to the above provisions, nothing in this definition shall be construed to preclude benefits to a worker who returns to work following a compensable accident even if there be no reduction in earning. Injuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant permanent disfigurement, and occupational disease of a minor nature such as mild dermatitis and mild bronchitis shall not constitute permanent disability within the meaning of this definition.

[N.J.S.A. 34:15-36 (emphasis added).]

The Supreme Court summarized the employee's burden as follows:

The employee must first prove by demonstrable objective medical evidence a disability that restricts the function of his body or its members or organ. Second, he must establish either that he suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not simply the result of a ...


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