May 5, 2011
JOYCE R. RAMBOUGH, PETITIONER-RESPONDENT,
C.V. HILL REFRIGERATION, RESPONDENT-APPELLANT.
On appeal from the Division of Workers' Compensation, Department of Labor, Claim Petition No. 1992-6224.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 11, 2011
Before Judges Lisa, Sabatino and Ostrer.
This workers' compensation case returns to us after remand proceedings resulting from our prior opinion. See Rambough v. C.V. Hill Refrigeration, No. A-4598-06 (App. Div. July 28, 2008). Prior to the previous appeal, the judge had found petitioner, Joyce R. Rambough, permanently and totally disabled.
The remand proceedings were conducted by a different judge, due to the intervening retirement of the judge who originally heard the case. After considering additional testimony in the remand proceedings, and after reviewing the record of the prior proceedings, the second judge again found petitioner permanently and totally disabled and reinstated the award of total permanent disability that we had vacated in our prior decision. The judge also awarded petitioner's counsel an additional fee to be paid by C.V. Hill, as well as an $800 witness fee.
C.V. Hill appeals. It argues that the judge (1) failed to identify with specificity the evidence upon which she relied,
(2) improperly relied upon her observations of petitioner's hands during an in-chambers conference, and (3) improperly found that petitioner sustained a 100% loss of the use of both of her hands. C.V. Hill further argues that it met its burden under the odd-lot doctrine by presenting evidence of jobs available that petitioner could perform. Finally, C.V. Hill argues that the award of an attorney's fee of more than twenty percent to petitioner's attorney and a non-medical witness fee in excess of the statutorily permitted amount of $400 were improper.
We agree with C.V. Hill regarding the witness fee, and we accordingly order that the final judgment be modified to reduce the allowance to $400. We reject C.V. Hill's remaining arguments, and in all other respects we affirm.
Petitioner, who is now sixty-one years old, was employed by C.V. Hill as a punch press operator from 1986 until 1995. She has not worked in any employment since that time. Her prior employment included other jobs as a machine operator, and she had also been briefly employed as a nurse's aide and a school lunchroom attendant in the mid-1970s. Petitioner did not graduate from high school.
In her initial workers' compensation proceeding, petitioner's disability was adjudicated at thirty-three percent partial total disability. In a subsequent modification proceeding, it was increased to forty percent. Petitioner then brought the modification petition that is the subject of this appeal. The judgment resulting from that proceeding, entered on March 26, 2007, recited as its basis: "100% Disability due to bilateral carpal tunnel syndrome requiring multiple surgeries with multiple trigger fingers developing in both hands with a depressive reaction."
In our prior opinion, we held that, based on our review of the record, the factual findings of the judge were supported by sufficient credible evidence. Rambough, supra, (slip op. at 1-2). Those factual findings included that petitioner had "lost the effective use of both hands," and, "[w]hen this is considered in connection with the petitioner's age and educational background," she is "totally disabled." Id. (slip op. at 3).
We concluded that the initial judge "clearly invoked" the odd-lot doctrine. Ibid. Under that doctrine, if work-related physical and neuropsychiatric impairments result in at least seventy-five percent of total disability, factors other than physical and neuropsychiatric impairments that are personal to the claimant, including educational background, prior work history, and the like, may be considered in the determination of permanent total disability. N.J.S.A. 34:15-36; Lewicki v. N.J. Art Foundry, 88 N.J. 75, 81 (1981); Oglesby v. Am. Dredging Co., 64 N.J. 538, 548 (1974). The odd-lot doctrine holds "that the petitioner, while not totally disabled, nevertheless might be unemployable because of 'handicaps personal to the worker over and above the limitations on work capacity directly produced by his [or her] accidental injury.'" Lewicki, supra, 88 N.J. at 81 (quoting Germain v. Cool-Right Corp., 70 N.J. 1, 9 (1976)). The odd-lot doctrine views workers in the context of the competitive market place, where their inability to sell their labor may be traceable to their personal background, superimposed upon their physical disability. Darmetko v. Electron Tech., 243 N.J. Super. 536, 539 (App. Div. 1990), appeal dismissed, 126 N.J. 316 (1991).
Under the odd-lot doctrine, once a claimant makes a prima facie case of unemployability, the burden shifts to the employer to prove otherwise. In this case, the initial judge found that, because of a combination of petitioner's physical and neuropsychiatric impairments and her personal factors worthy of consideration under the odd-lot doctrine, she was not employable, and was thus permanently and totally disabled.
As we previously stated, we concluded in the prior appeal that those findings were supported by the record. However, because C.V. Hill was not on notice that the odd-lot doctrine might be applied, it was wrongfully deprived of the opportunity to meet its burden-shifting obligation and attempt to rebut petitioner's showing of unemployability. We noted in our prior opinion that "[n]notice is required before issuance of a judgment of total permanent disability based on the 'odd-lot' doctrine," and that "[n]notice is important because the employer must be permitted to meet the claim." Rambough, supra, (slip op. at 5) (citing Kovach v. Gen. Motors Corp., New Departure Hyatt Bearings Div., 151 N.J. Super. 546, 552-53 (App. Div. 1978)); Germain, supra, 70 N.J. at 10.
Because there was no prior notice in this case, we vacate[d] the judgment awarding compensation for total permanent disability on the basis of the "odd-lot" doctrine. We remand[ed] 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.
Id. (slip op. at 5-6).
In accordance with our instructions, C.V. Hill presented at the remand hearing the testimony of an employability expert, Donna Kolsky. She testified that petitioner possessed transferable employment skills. She administered several tests to petitioner, gauging aptitude in such areas as visual speed, accuracy and fluency, on which petitioner performed well, and verbal comprehension and numerical ability, on which petitioner did not perform well. However, Kolsky did not test petitioner's use of her hands or her manual dexterity.
Kolsky opined that petitioner was physically and intellectually capable of returning to work, and that some of her skills would be transferable, while some necessary skills, such as operating a computer, would have to be newly trained. Kolsky identified several jobs that petitioner would be capable of performing, such as a school lunchroom attendant, department store fitting room attendant, diner cashier, and food services worker. According to Kolsky, although these jobs might require repetitive hand movements, petitioner could function in these capacities because the required hand movements would be gross, not fine, movements.
When questioned why she did not perform dexterity tests, Kolsky said she did not believe there was a need for testing petitioner's use of her hands. She felt that the type of work petitioner would be performing would not require speed and accuracy in the use of her hands, and therefore dexterity testing was not necessary.
Also as authorized by our remand directive, petitioner presented rebuttal evidence, namely, her employability expert, Edmond Provder. He explained that petitioner could perform numerous activities that did not require the use of her hands, such as sitting, standing, climbing stairs, and walking. She could carry approximately five pounds with one hand and two to three pounds with the other. She could also make fists with the exception of her right, middle finger, which did not move. Provder also described certain movements that petitioner was not capable of performing or which were painful for her to perform.
In Provder's view, petitioner could not perform the type of work she had previously done. Further, because she was an unskilled worker, she had few, if any, transferable skills. Provder did take into account petitioner's dexterity issues. He performed standardized dexterity tests, which he described in his testimony. Petitioner did not perform well in those tests. Provder said that because of the limitations caused by petitioner's debilitated hands she would be incapable of performing the jobs identified by Kolsky. He opined that she was unemployable.
In connection with one of the court proceedings during the remand, the judge, while in chambers and not on the record, viewed petitioner's hands and observed petitioner's movement of her hands. Both counsel were present. The judge memorialized her observations on the record. Neither counsel objected to this procedure.
On May 18, 2010, the judge issued a written decision. She found that Kolsky's testimony was "devoid of any probative value" because "even though this matter revolved around petitioner's ability to use her hands, no manual dexterity or other testing was done with the hands. For an employment expert to be of value to the [c]court there must be some connection between the body part involved and the objective findings." Accordingly, the judge found that Kolsky's testimony "[did] not merit any consideration by this court."
This finding was all that was necessary to conclude the remand proceeding within the narrow scope that we directed. The employer was given its opportunity to meet its burden-shifting obligation to rebut the finding that we had held was supported by the record evidence before the first judge, namely, that petitioner was permanently totally disabled under the odd-lot doctrine. The employer failed to meet its burden because the judge rejected in its entirety the testimony of the employer's employability expert.
The judge then went on to comment on Provder's testimony and the fact that "[h]e opined that petitioner's lack of dexterity, diminution of grip strength, and impaired bimanual coordination was such that she would not be able to find employment and was totally disabled as an industrial unit." Implicitly, the judge found Provder's testimony persuasive. This evidence, although relevant and further supportive of the court's ultimate disposition, was unnecessary in light of our prior opinion and C.V. Hill's failure to successfully rebut petitioner's proof that she was not employable. Provder's testimony merely served to bolster petitioner's proofs.
The judge then made the key finding in her written decision: "I therefore find that respondent has not borne its burden to prove that petitioner is employable." This was the only necessary finding within the scope of our limited remand.
The judge nevertheless offered an alternative basis for finding petitioner totally permanently disabled. Based upon her review of the record of the prior proceedings, and her observation of petitioner's hands, she found that total permanent disability was also established under N.J.S.A. 34:15-12c(20), based on the loss of use of both hands. In our view, this alternative finding was beyond the scope of our remand and was superfluous. We therefore do not comment further upon it and decline to address C.V. Hill's arguments pertaining to it. In this regard, our determination in our prior opinion that the first judge "clearly invoked" the odd-lot doctrine, and our remand for the "limited purpose" to enable new findings "on the applicability of the doctrine" was the law of the case. In re Denial of Reg'l Contribution Agreement, 418 N.J. Super. 94, 101 (App. Div. 2011) (stating that remand instructions are the law of the case).
Our review of a workers' compensation judge's factual findings is limited to whether those findings could reasonably have been reached on sufficient credible evidence in the record, considering the proofs as a whole, and giving due regard to the opportunity of the judge who heard the witnesses to evaluate their credibility, and considering the expertise of a workers' compensation judge when expertise is a pertinent factor. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). The assessment of opinions rendered by employability experts is certainly within the realm of the expertise of judges of workers' compensation. We accordingly defer to the judge's findings regarding the relative worth of the testimony of the two employability experts in the remand proceeding. Those findings are well supported by the record, and we have no occasion to interfere with them. Accordingly, the result of the remand proceeding is that petitioner is totally and permanently disabled under the odd-lot doctrine.
In the first proceeding, the judge awarded petitioner's attorney a counsel fee for the full twenty percent of the amount of the judgment, as allowed by N.J.S.A. 34:15-64a.*fn1 The amount of the award was $17,435, of which C.V. Hill was ordered to pay $11,265. The portion awarded against petitioner ($6,170) was designated as "waived."
At the conclusion of the remand proceeding, the judge made an additional award of $7500 to petitioner's attorney, to be paid entirely by C.V. Hill. In her written decision, the judge stated that, notwithstanding the earlier award to petitioner's counsel, this award was warranted because "it was through the attorney's efforts at the remand hearing that petitioner retained her disability award as well as the right to any future medical benefits." Quoting an unpublished opinion of this court, the judge noted that confirmation of a prior judgment which requires continuation of benefits, cash and medical treatment is tantamount to a money judgment in favor of the petitioner.
The statutory provision authorizing an award of counsel fees in compensation proceedings authorizes "a reasonable attorney fee, not exceeding 20% of the judgment." N.J.S.A. 34:15-64a. Our review of the award of counsel fees is narrowly circumscribed, and we will not interfere unless an award is manifestly excessive and thus constitutes a mistaken exercise of discretion. Gromack v. Johns-Manville Prods. Corp., 147 N.J. Super. 131, 137 (App. Div. 1977). The reasonableness of a fee in these cases should be evaluated in light of the nature and extent of the services and the responsibility involved, which, in turn, requires consideration of the need for the services, the matter in issue, the difficulty of the issues involved, the extent and nature of the matters contested, the degree of the attorney's expertise, and the value of his or her services to the petitioner. Id. at 135.
The judge in this case essentially found that but for the services rendered by petitioner's counsel in the remand proceedings, the favorable judgment, which had been vacated, would not have been reinstated. Therefore, those services resulted in what was tantamount to a new judgment entitling petitioner to long-term benefits valued at $77,187. In other words, had petitioner not acted in the aftermath of our prior decision, her award would have reverted to its prior level before the latest petition to modify, which is the subject of this appeal. That level was forty percent partial total disability, which had a value of $49,200. Because of the services rendered in the remand proceedings, the modified award of 100% total disability was reinstated, with a total value of $126,387, which, reduced by the $49,200 previously awarded, resulted in a net additional amount due to petitioner of $77,187.
Considering the relevant factors in determining the reasonableness of the award and our deferential standard of review, we find no mistaken exercise of discretion in awarding the additional counsel fee. We also are unpersuaded by C.V. Hill's argument that the additional award impermissibly exceeds the twenty percent statutory limitation. Our prior opinion vacated the judgment previously entered. The judge took into consideration the fact and amount of the earlier counsel fee award in determining an appropriate award for services rendered in the remand proceedings. We agree with the judge's rationale that the result of the remand proceeding is tantamount to a new money judgment in petitioner's favor.
Finally, the judge awarded an $800 witness fee for the report and testimony provided by Provder. C.V. Hill correctly argues that the statutory limit under N.J.S.A. 34:15-64a for such a fee is $400. We accordingly direct that the judgment be modified to reduce this fee award to $400.
Affirmed as modified.