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Colon v. Coordinated Transport

July 3, 1995


On certification to the Superior Court, Appellate Division.

The opinion of the Court was delivered by Coleman, J. Chief Justice Wilentz and Justices Handler, Pollock, O'hern, Garibaldi and Stein join in Justice Coleman's opinion.

The opinion of the court was delivered by: Coleman

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).


Argued February 14, 1995 -- Decided July 3, 1995

COLEMAN, J. writing for a unanimous Court.

The issue on appeal is whether diminution in range-of-motion alone is sufficient to satisfy the "demonstrable objective medical evidence" standard required under the Workers' Compensation Act (Act) to establish partial-permanent physical disability. The Court also decides whether a minimum percentage of disability should be established as a threshold for determining when a disability is too minor to justify a workers' compensation award.

Frederick Colon filed a claim for workers' compensation benefits for injuries he sustained to his left shoulder and lower back in a motor vehicle accident in June 1990. At the time of the accident, Colon, the petitioner, was employed as a tractor-trailer driver for Coordinated Transport, Inc., the respondent. The sole issue before the Judge of Compensation was whether Colon had sustained a "disability permanent in quality and partial in character" to either his left shoulder and/or his lumbar spine as a result of the accident.

The Judge of Compensation found that Colon sustained a five-percent partial-permanent disability to his left shoulder. He found no residual permanent disability to Colon's lumbar spine. The Judge based his decision on his finding that Colon's testimony was credible, and on his Conclusion that the reports of medical experts for Colon and Consolidated Transport contained "objective evidence of the disability." That description of the statutory requirement was incomplete and the Judge failed to articulate what "objective evidence of the disability" he found in the medical reports.

Colon's expert, Dr. Fleischman, examined Colon on October 16, 1991. Dr. Fleischman concluded that Colon still had symptomatology and objective findings referable to his left shoulder. Dr. Fleischman expressed the opinion that, at the time of the examination, Colon was suffering a disability that was twenty percent of partial total based on residuals of left shoulder strain and sprain.

Coordinated Transport's expert, Dr. Costino, examined Colon on September 17, 1991. Dr. Costino concluded that Colon sustained a strain/sprain of the left shoulder as a result of the motor vehicle accident. Dr. Costino noted that his examination revealed complete mobility in all four extremities and he found no evidence of significant orthopedic or neurological deficit. Dr. Costino expressed the opinion that the case represented zero percent of total partial-permanent disability.

Based on the Judge of Compensation's five percent partial-permanent disability award, Coordinated Transport appealed to the Appellate Division, which affirmed the Judge's decision. The Appellate Division concluded that, although the findings of the Judge were imprecisely articulated, there was no basis to disturb those findings given the limited scope of appellate review. In addition, the Appellate Division established a bright-line rule of less than two and one-half percent of partial-permanent disability as a threshold for determining when a disability is to be considered minor under the Act. The Appellate Division also rejected the use in workers' compensation cases of the "objective medical evidence" of disability standard articulated in Oswin v. Shaw for the verbal threshold in automobile accident cases.

The Supreme Count granted Coordinated Transport's petition for certification.

HELD: Range-of-motion test results are generally subjective and will not, standing alone, satisfy the statutory requirement in a workers' compensation case of "demonstrable objective medical evidence" to support an award of partial-permanent disability. In addition, absent legislative intent, it is inappropriate for the Court to create a numerical threshold to measure "minor injuries."

1. N.J.S.A. 34:15-36 defines the elements of proof of a claim for partial-permanent disability. A petitioner seeking to prove partial-permanent disability must satisfy a two-prong test. First, the petitioner must make a satisfactory showing of demonstrable objective medical evidence of a functional restriction of the body, its members or organs. This showing may not rest on petitioner's subjective complaints alone. Second, the petitioner must establish either that he or she has suffered a lessening to a material degree of his or her working ability or that his or her disability otherwise is significant and not simply the result of a minor injury. The petitioner has the burden of proving both prongs of the test. (pp. 9-10)

2. There must be a showing of physical manifestations that are observable independently of the petitioner's subjective statement of complaints. A doctor is permitted to consider a petitioner's subjective complaints, but must also present either clinical or laboratory findings of observable, measurable, physical manifestations of injury to satisfy the "demonstrable objective medical evidence" standard. Any diminution in range-of-motion in this case may be considered only as any other subjective complaint. (pp. 10-11)

3. In Oswin, this Court held that to satisfy the "objective medical evidence" standard for verbal threshold requirements in automobile tort liability cases, range-of-motion tests are ordinarily insufficient. Oswin involved an entirely different statute and, therefore, it is unwise to tack on to workers' compensation law this Court's interpretation of statutory requirements governing automobile insurance law. (pp. 11-12)

4. Because neither the Judge of Compensation nor the Appellate Division specified what the "demonstrable objective medical evidence" was, the decision is rejected. (pp. 12-13)

5. Because the Act does not expressly include a numerical threshold, it is reasonable to impute to the Legislature the intent not to allow a numerical threshold for defining compensability. Moreover, a numerical threshold may be counterproductive to the aims of the statutory definition of partial-permanent disability. (pp. 13-15)

Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Judge of Compensation to make detailed factual findings based on the present record and redetermine the extent, if any, of disability to the left shoulder consistent with this opinion.


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