On appeal from Division of Workers' Compensation.
Approved for Publication December 11, 1995. As Corrected February 5, 1996.
Before Judges King, Landau and Kleiner. The opinion of the court was delivered by Landau, J.A.D.
The opinion of the court was delivered by: Landau
The opinion of the court was delivered by LANDAU, J.A.D.
Petitioner-appellee Vito Ventre was injured in an industrial accident while employed by respondent-appellant CPC International/C.F. Mueller Co. (CPC) and instituted a proceeding in the Division of Workers' Compensation. Jurisdiction and occurrence of the accident arising out of and in the course of his employment was stipulated, subject to determination of the nature and extent of any permanent disability.
Ventre was injured when a piece of plexiglass he was cutting "caught" on the table saw, forcibly striking him on the chin, upper neck and wrist. He was hospitalized for two days, receiving stitches in his chin and a wrist cast. Ventre suffered a mandibular fracture for which no treatment was rendered. He also lost two teeth. He was out of work for eighteen months, returning to carpenter duties with the same employer.
Pursuant to practice in the Division, the matter proceeded on medical reports filed by the parties' respective experts. Cross-examination of the experts was waived. The parties agreed that the sole issue for determination was the nature and extent of any permanent disability.
The Judge of compensation credited Ventre's complaints in "all of the areas of which he complains," finding impaired function in "all of the same areas," a lessening to a material degree of his working ability and his ability to engage in the activities of daily living, and that "his disabilities are multiple and encompass orthopedic, otological and cosmetic problems."
The Judge agreed with the assessment made by Ventre's orthopedic expert that Ventre exhibited a twenty-five percent disability in his right hand, but not for reasons articulated by the expert who, he found, "missed the boat." The Judge concluded that "as a result of the combination of the ununited carpal naricular fracture and the laceration of his wrist ... a permanent orthopedic disability of 25 percent of the right hand" had been caused by the accident.
Fifteen percent of partial total was attributed to "the fracture of the mandible," upon this finding:
I am satisfied that as a result of this blow the petitioner suffered a fracture of the mid portion of the mandible which was sufficient for the purpose would not only affect his jaw but his temporomandibular joints as well as his binaural ear canals.
Ten percent of partial total, otological in nature, was awarded "for residual effects of the TMJ syndrome, the bilateral [ear] canal fracture and the tinnitus which accompanies the injury."
Another ten percent of total was attributed to a cosmetically disfiguring chin and lip scar.
The Judge found a twenty-five percent binaural hearing loss, not solely related to the accident, and apportioned twelve percent of that loss as "chargeable to the effects of the trauma which Dr. Freifeld has concluded resulted in a fracture of the ear canals and Dr. West has concluded resulted from a cochlear injury." The apportionment assertedly was made under authority of Baijnath v. Eagle Plywood & Door Mfrs., 261 N.J. Super. 309, 618 A.2d 902 (App. Div. 1993), which ...