July 28, 2008
JOYCE R. RAMBOUGH, RESPONDENT,
C.V. HILL REFRIGERATION, APPELLANT.
On appeal from Department of Labor and Workforce Development, Division of Workers' Compensation, Case No. 1992-6224.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued July 8, 2008
Before Judges C.S. Fisher and Grall.
C.V. Hill Refrigeration (C.V. Hill) appeals from a judgment of the Division of Workers' Compensation finding petitioner Joyce R. Rambough permanently and totally disabled. Based on our review of the record and consideration of the proofs as a whole, including credibility findings to which we defer, we conclude that the Judge of Compensation's factual findings are supported by sufficient credible evidence. See Kovach v. Gen. Motors Corp., New Departure Hyatt Bearings Div., 151 N.J. Super. 546, 551 (App. Div. 1978). Nonetheless, because the judge relied on the "odd-lot" doctrine without notice to respondent, we are constrained to remand in order to permit C.V. Hill to defeat the application of that doctrine by establishing Rambough's employability.
We limit our discussion of the facts to those pertinent to our decision to remand. The question presented by Rambough's petition for additional benefits was whether her incapacity resulting from her work-related injury, previously determined compensable, had increased. N.J.S.A. 34:15-27. She testified about her continually diminishing abilities and presented medical evidence ascribing eighty-five percent of total partial disability to her left hand and eighty-percent of total partial disability to her right hand. She also presented testimony from an expert in psychiatry and neurology, Dr. Gooriah, who found a neuropsychiatric disability of forty-five percent and a neurological disability of forty-five percent.
Over C.V. Hills' objection, the judge permitted Dr. Gooriah to offer an opinion that Rambough is "totally and permanently incapacitated [as a] physiological industrial unit." In admitting the testimony, the judge explained:
The opinion is on the record for what it's worth. We know that [Dr. Gooriah] is here to testify as an expert in psychiatry and neurology. For what it's worth that's his opinion. But the court will bear in mind that he's an expert for a limited purpose in these proceedings.
In his final decision, the judge stated the following reasons for his conclusion that Rambough's disability had increased to the point of total:
After observing the petitioner's hands and after reviewing the records submitted, the testimony of the petitioner, [and] the testimony of the examining doctors, I find the petitioner has essentially lost the use of two major body parts; that is, she lost the effective use of both hands. When this is considered in connection with the petitioner's age and educational background, I find the petitioner to be totally disabled within the meaning of the Workers'
Compensation Statute . . . .
The judge's determination clearly invoked the "odd-lot" doctrine, which Rambough implicitly acknowledges she had not raised. Pursuant to N.J.S.A. 34:15-36, a disability is "permanent in quality and total in character" if it is "a physical or neuropsychiatric total permanent impairment caused by a compensable accident or compensable occupational disease, where no fundamental or marked improvement in such condition can be reasonably expected." If "such physical and neuropsychiatric impairments constitute at least 75% [seventy-five percent] or higher of total disability," "[f]actors other than physical and neuropsychiatric impairments may be considered in the determination of permanent total disability." Ibid. This statutory limitation on consideration of factors other than physical or neuropsychiatric impairments -- factors such as "age, education, intelligence, training, communication skills and other personal and cultural deficits" -- was intended to limit application of the "odd-lot" doctrine. Darmetko v. Electron Techn., 243 N.J. Super. 536, 539 (App. Div. 1990), appeal dismissed, 126 N.J. 316 (1991) . "Under the ["odd-lot"] doctrine, the worker is viewed in the [context] of the competitive market place, where his inability to sell his labor may be traceable to his [personal] background superimposed upon his physical disability." Id. at 540; see Barbato v. Alsan Masonry, 64 N.J. 514, 526-28 (1974) (explaining the origins and application of the doctrine); see also Germain v. Cool-Rite Corp., 70 N.J. 1, 9 (1976); Oglesby v. American Dredging Co., 64 N.J. 538, 547-48 (1974); Zanchi v. S & K Const. Co., 63 N.J. 331, 332 (1973). When the doctrine is applicable based on the evidence presented by the employee, the burden of proof shifts to the employer, who must "show that work within the capacity of such an employee is, in fact, within reach." Barbato, supra, 64 N.J. at 529.
Notice is required before issuance of a judgment of total permanent disability based on the "odd-lot" doctrine. Kovach, supra, 151 N.J. Super. at 552-53; see Germain, supra, 70 N.J. at 10. Notice is important because the employer must be permitted to meet the claim. Ibid.
In this case, there was no prior notice. To the extent that Dr. Gooriah's testimony suggested a claim based on the doctrine, the judge's comments on admission of the evidence are reasonably understood as stating his intention to disregard it.
Relying on Barbato, Rambough contends that the judge's decision does not indicate reliance on the "odd-lot" doctrine. She argues that total disability may be "found if the worker exposure [sic] is rendered unemployable in a reasonably stable job market after a work related accident and this notwithstanding that factors personal to the individual will play a contributory role in such employability." The difficulty with this argument is that it is based on a passage in Barbato discussing application of the "odd-lot" doctrine. Barbato, supra, 64 N.J. at 526-27.
Because C.V. Hill did not have proper notice, we vacate the judgment awarding compensation for total permanent disability on the basis of the "odd-lot" doctrine. We remand for the limited purpose of affording C.V. Hill the opportunity to present proofs to resist application of the doctrine, giving Rambough an opportunity to present rebuttal evidence, and allowing the judge to make new findings on the applicability of the doctrine based on the entire record. See Kovach, supra, 151 N.J. Super. at 553-54 (entering a similar order of remand in a similar case).
The additional arguments raised by C.V. Hill on appeal lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
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