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Perez v. Capitol Ornamental

March 11, 1996


On appeal from the Decision of the Division of Workers' Compensation.

Approved for Publication March 11, 1996.

Before Judges Keefe, Wefing and A.a. Rodriguez. The opinion of the court was delivered by Keefe, J.A.D.

The opinion of the court was delivered by: Keefe

The opinion of the court was delivered by KEEFE, J.A.D.

Petitioner Francisco Perez appeals from a final judgment entered in the Workers' Compensation court after a plenary trial awarding him 32% permanent partial disability and dismissing his claim for Second Injury Fund benefits. On appeal, petitioner contends that the Workers' Compensation Judge erred in fixing his disability within "a range of similar injuries" and without considering the extent to which the injury impacted on petitioner's ability to work in view of his limited education and training. Petitioner also contends that the objective medical evidence, considered withthe impact the injury had on his ability to work, required the Judge to find that he was totally and permanently disabled.

We affirm the Workers' Compensation Judge's determination that petitioner's permanent partial disability is less than the 75% estimated by petitioner's expert. Accordingly, we reject petitioner's contention that the evidence requires a determination that he is totally and permanently disabled. However, we conclude that the Judge failed to consider the impact that petitioner's significant orthopedic injury had on his ability to secure work in view of petitioner's limited educational and intellectual resources. Thus, we remand the matter for reconsideration in accord with this opinion.

Petitioner was born in Puerto Rico in 1954. He has a sixth grade education, no special education or training beyond that, and is unable to read, write, or understand English. From the age of eighteen, he travelled back and forth between the United States and Puerto Rico working as a farm laborer in Puerto Rico and in landscaping and construction in the United States.

On April 17, 1989, petitioner was employed by respondent Capitol Ornamental, Concrete Specialties, Inc. (Capitol), as a mold maker. His job was to make fiberglass molds so that cement figures could be cast from the molds he made. Petitioner worked in that capacity on and off for approximately ten years. In addition to doing what he described as heavy work, petitioner also played baseball and jogged.

On the above date, petitioner injured his back while working on the job at Capitol. After the accident, petitioner had several diagnostic tests performed and underwent a laminectomy in August 1989. He then received physical therapy from September 1989 to April 1990. Thereafter, he underwent a second MRI and myelogram because of continuing back problems. Further surgery was discussed but rejected because it was believed that the surgery would not improve his condition. He was paid temporary disability benefits until June 1, 1992.

Petitioner applied to the Division of Vocational Rehabilitation for job training. As a result, the Division sent him to the Mental Health Clinic associated with Perth Amboy Hospital where he received psychiatric treatment.

When the trial began in September 1993, petitioner testified that he had not worked since the day of the accident because of continuous pain in his low back radiating into the calf of his left leg. He said that he could neither sit nor stand for any length of time.

Dr. Floyd Krengel testified on behalf of petitioner, having last examined him one year prior to his testimony. He diagnosed petitioner's condition as: lumbo sacral sprain, bilateral lumbar paravertebral myositis, bilateral sacroiliac sprain, disc herniation at L5-S1, lumbar laminectomy and discectomy, residual surgical scarring, recurrent L5-S1 herniation, and left sciatic reference. Objectively, Dr. Krengel found marked flattening of the lumbar lordotic curve; limited side bending; difficulty performing heel to toe stands; bilateral spasm in the paravertebral muscles of the lumbar spine; positive Patrick and Lasegue signs on the left; and decreased sensitivity to the distribution of the L5-Sl nerves on the left side. Dr. Krengel opined that petitioner's orthopedic disability was 75% partial total and was causally related to the accident of April 17, 1989. He also opined that petitioner was totally disabled due to his orthopedic disability, lack of education, and the type of work petitioner was capable of performing.

Dr. Paul Kiell testified on behalf of the petitioner in the field of neurology and psychiatry, having examined petitioner on one occasion a year prior to his testimony. As a result of the examination, Dr. Kiell concluded that petitioner's neurologic disability was 60% of partial total. He further found that petitioner had a psychiatric disability of 17.5% of partial total because of an adjustment disorder. Dr. Kiell concluded that petitioner was totally disabled and "essentially unemployable due to his considerable orthopedic disability, his lack of training, and his illiteracy in English."

On January 20, 1994, Dr. Nelson Manowitz, an orthopedist, testified on behalf of the respondent. Dr. Manowitz examined petitioner on four occasions between November 1990 and April 1992. Therefore, he had not seen the petitioner for more than one and one-half years. On Dr. Manowitz's last examination, he found that petitioner had intermittent left sided spasm with some reversal of the lordotic curve, as well as flexion, extension and lateral bending on both sides still approximately 15% less than normal. Petitioner exhibited no positive Patrick or Lasegue signs but continued to have a positive Goldthwait test on the left side. In his opinion, petitioner's continuing problems were due to scar tissue formation and not a recurrent disc. He felt that additional surgery was not indicated because it would probably produce more scar tissue and would likely worsen petitioner's symptomatology. In his opinion, petitioner's disability was 12.5% of partial total. Notwithstanding his assessment of disability, Dr. Manowitz admitted that petitioner could not lift anything heavier than fifteen pounds and would not be able to return to his former occupation. He testified that petitioner could only perform ...

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