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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...