On appeal from Division of Workers' Compensation, Department of Labor, Claim Petition No. 1994-000029.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Sabatino.
Mega Construction Corporation (Mega) appeals from a judgment of the Division of Workers' Compensation which awarded benefits to petitioner, Jesus Ruvalcaba, for a total permanent disability, and awarded a counsel fee to petitioner's attorney in the amount of $36,000, of which respondent was required to pay $21,600 (sixty percent).
On appeal, respondent presents the following arguments:
THE TRIAL COURT ERRED BY DETERMINING PETITIONER TO BE TOTALLY AND PERMANENTLY DISABLED DESPITE THE ABSENCE OF ANY OBJECTIVE MEDICAL EVIDENCE SUPPORTING SUCH A CONCLUSION.
A. PETITIONER'S SUBJECTIVE COMPLAINTS OF PAIN REMAINED THE SAME OVER THE YEARS, A RED FLAG THAT THE TRIAL COURT IGNORED.
B. PETITIONER['S] EXPERTS' TESTIMONY AND THE TRIAL COURT'S DECISION WERE NOT BASED ON ANY OBJECTIVE MEDICAL EVIDENCE.
C. ALL WITNESSES AGREED PETITIONER WAS CAPABLE OF WORKING IN AT LEAST SOME CAPACITY, AND THE TRIAL COURT INEXPLICABLY REJECTED SUCH TESTIMONY.
D. PETITIONER'S CLAIM FAILS TO SATISFY THE "ODD-LOT DOCTRINE."
THE TRIAL COURT'S AWARD OF PERMANENT-TOTAL BENEFITS AND CONTINUATION OF BENEFITS UNDER N.J.S.A. 34:15-12(b) IS CONTRARY TO THE EXPRESS REQUIREMENTS OF THE WORKERS' COMPENSATION ACT AND THE DECISION LAW INTERPRETING N.J.S.A. 34:15-12(b).
THE TRIAL COURT'S AWARD OF COUNSEL FEES EXCEEDS THE STATUTORY LIMIT OF 20% FOR THE BENEFITS ACTUALLY AWARDED, IS BASED ON SPECULATION AND EXCEEDS THE ADMINISTRATIVE CAP ON FEES WITHOUT THE BENEFIT OF AN APPROPRIATE AFFIDAVIT OF SERVICES AND CONSTITUTES AN ABUSE OF THE TRIAL COURT'S DISCRETION.
After considering these contentions in light of the record, the applicable law, and the arguments of counsel, we affirm the compensation judge's determination that petitioner is one-hundred percent disabled because that determination is fully supported by substantial credible evidence. However, given the absence of findings regarding the reasonableness of the counsel fee award, we remand that issue to the judge of compensation for reconsideration.
Petitioner was born on August 12, 1944, in Galeana, Mexico. He possesses no formal education, and spent his childhood assisting his father as a farmer. In 1971, petitioner left Mexico for the United States, where he worked in Chicago, Illinois planting "grass and little trees" on the freeways and around the city. In between trips back and forth to Mexico, petitioner was subsequently employed in a cardboard factory and with Nationwide Beef, before finding employment as a "drywall finisher" in Houston, Texas in 1977. From Houston, petitioner moved to Dallas, and then to San Antonio, before relocating to New Jersey in 1986.
In New Jersey petitioner "worked for other companies first," but he ultimately found employment with Mega, performing the same drywall finishing duties he learned in Houston. On October 11, 1993, Mega "sent [petitioner] to tape a house" but failed to provide him with the scaffolding necessary to reach the sixteen foot high ceiling. Petitioner improvised by constructing a makeshift platform out of planks. On the first day, this structure worked without incident. When petitioner arrived at the worksite the next day, "the sweepers or cleaners had taken everything down and thrown it out into the dumpster," so he retrieved more planks and once ...