Review of Workers Compensation Statute and Proof of Permanency

Submitted by New Jersey Workman’s Compensation Lawyer, Jeffrey Hark

This case represents a recent review of New Jersey’s Workers Compensation Statute and petitioner’s evidentiary burden regarding proof of ‘permanent’ injury.  The following is the court’s discussion of NJSA 34:15-36.  The statute that defines the elements of proof necessary to sustain a compensable injury is N.J.S.A. 34:15-36. The relevant portion of that section states:

Disability permanent in quality and partial in character’ means a permanent impairment caused by a compensable accident…based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee’s working ability.

Demonstrable, Objective Evidence of a Permanent Injury

In Perez v. Pantasote, Inc., 95 N.J. 105 (1984), the Supreme Court indicated that the statute’s primary goal was to eliminate awards for minor partial disabilities.  The Court indicated in Perez that the petitioner must make a satisfactory showing of demonstrable objective evidence of a functional restriction of the body or its member organs.  This showing may not rest upon the petitioner’s subjective complaints alone.  Second, the petitioner must then establish that he either has suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not simply the result of a minor injury.  The petitioner bears the burden of proof on both prongs of this test.  The petitioner has to satisfy this hurdle by introducing medical evidence from a doctor who has examined the petitioner, and all of his medical records.  Any doctor who has not thoroughly performed both of these tasks is exposing himself to a lack of credibility finding.  In this matter Dr. Meeter, respondent’s doctor, did not fully examine all of petitioner’s scars across his body and in fact deferred to petitioner’s doctor. The court picked up on this clear omission and gave greater weight to petitioner’s doctor when making findings of fact and conclusions regarding the complete nature and extent of Mr. Pitts’ permanent injury arising out of the work related burns.

The court then turned to Coates v. Warren Hotel, 18 N.J. Misc. 363, 366, 13 A.2d 787, 789 (C.P. 1940), and reiterated:  The purpose of the Workmen’s Compensation Act is to provide compensation for personal injuries out of and in the course of employment, and after setting forth schedules of compensation for temporary and permanent disability, it provides in all lesser and other cases involving permanent loss’ proportionate compensation shall be made.  Therefore, in the ascertainment of the amount of compensatory disability suffered by an injured employee, allowance for disfigurement in addition to the strictly functional loss ensuing from the injury is within both the letter and spirit of the Statute.

Non-Disabling Disfigurement

It has also been held that a non-disabling disfigurement of a part of the body which is visible while the worker is engaged in the ordinary pursuits of life is compensable. Everhart v. Newark Cleaning & Dyeing Co., 120 N.J.L. 474, 476 (Sup. Ct. 1938); Dent v. Butterworth-Judson Corp., 97 N.J.L. 322 (E. & A. 1922).   In James L. Wright v. Purepac Corp.82 N.J. Super. 100; 196 A.2d 695; 1963 The Appellate  Court held  they” can perceive no distinction between a normally visible, non-disabling disfigurement and one which is normally concealed, non-disabling, but of such nature and extent that it would be revealed by the customary, pre-employment physical examination.  Both types possess the inherent capacity to impair future earning capacity.  Where a disfigurement of an injured employee results from or accompanies injury arising out of and in the course of employment it is compensable when the disfigurement is of such a nature and extent that it may reasonably be presumed to impair or interfere with the future earning capacity or employ-ability of the employee”.

The proofs in this case include the testimony of Petitioner, Dr. Ralph Cataldo, Petitioner’s orthopedic forensic medical examiner, Dr. Francis Meeteer, Respondent’s orthopedic forensic expert, and 3 lay witnesses plus 57 evidential exhibits including voluminous treating and forensic medical records. I have carefully read every page of these records and compared them to the offered testimony. I reviewed the records repeatedly, especially the medical findings and opinions expressed during treatment. I considered the written summations of the parties.  Finally, I have looked at Mr. Pitts as a whole person and arrived at my estimate of disability after considering how his various disabilities have affected his working ability and his ordinary life pursuits.

I find, based upon the petitioner’s credible and candid testimony, that he currently experiences a great deal of pain in his left trapezius, shoulder and left upper and lower back. I also find as credible petitioner’s testimony that he is unable to use certain soaps powders and lotions because of his scaring. That he is unable to be in the sun or hot weather that he has difficulty playing basketball, baseball and volleyball as well as difficulty with weight training, exercising, bicycling, bowling and fishing. Petitioner further testified and I find credible that as a result of his injuries he has difficulty lifting groceries, doing laundry, mowing the lawn, raking leaves, shoveling snow and taking out the trash.

The court clearly took the appropriate steps to connect the law to the facts and when it examined the medical records in full while comparing them to the expert testimony and the testimony of the petitioner.  As stated previously in my blogs any appellate review shall provide the trial court with great deference when examining the trial court’s exercise of its own judgment regarding examination of the credibility of the witnesses and the weight of all the evidence.

Leave A Comment...

*