NEXT CHERILUS v. LION EXTRUDING CORPORATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1919-04T31919-04T3

NEXT CHERILUS,

Petitioner, Respondent,

v.

LION EXTRUDING CORPORATION,

Respondent-Appellant.

__________________________________

 

Argued February 7, 2006 - Decided February 28, 2006

Before Judges Lefelt and Seltzer.

On appeal from Judgment of the

Division of Workers' Compensation,

Docket No. 2000-25299.

Francis T. Giuliano argued the cause

for appellant.

Michael I. Murphy, Jr., argued the

cause for respondent (Freeman & Bass

attorneys; Mr. Murphy on the brief).

PER CURIAM

The Workers' Compensation Court awarded petitioner, Next Cherilus, five-percent permanent partial disability benefits for injuries petitioner allegedly sustained when assaulted by his employer while being fired on June 13, 2000. Although respondent employer contested the assault in the compensation court, it does not argue on appeal for reversal on that basis. Instead, respondent challenges the legality of the permanent partial award.

Respondent argues that Worker's Compensation Judge Oakerson's decision was defective because it failed to address whether petitioner's injury caused a material lessening of his working ability or a substantial impairment of the ability to carry on the ordinary pursuits of life. In addition, respondent argues that even assuming the judge found that petitioner had proven functional limitation by demonstrable objective medical evidence, the finding violated Allen v. Ebon Servs. Int'l, Inc., 237 N.J. Super. 132 (App. Div. 1989).

To qualify for permanent partial disability, petitioner must suffer "a permanent impairment caused by a compensable accident . . . based upon demonstrable objective medical evidence, which restricts the function of the body or of its member or organs[.]" N.J.S.A. 34:15-36. In evaluating whether petitioner qualifies for such an award, "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." Ibid. "[N]othing in [the statutory definition of permanent partial disability, however,] shall be construed to preclude benefits to a worker who returns to work following a compensable accident even if there be no reduction in earnings." Ibid. To be excluded from a permanent partial award are "[i]njuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant permanent disfigurement[.]" Ibid.

Respondent complains that the judge failed to address whether petitioner's injury materially lessened his working ability. It is true that the judge's decision failed to analyze this aspect of a potential disability. But even if a worker's earning ability has not been impaired, compensation may still be awarded if the injury has the capacity to interfere substantially with other aspects of the worker's life. Perez v. Pantasote, Inc., 95 N.J. 105, 117 (1984).

The judge found "sufficient evidence of functional loss based on the examination of Dr. Ahmad, as well as the emergency room records which indicated that [petitioner] did have pains and rib contusion." There is adequate support in the record for this finding.

After being terminated by respondent, petitioner obtained new employment and does not have difficulty doing his job. However, he explained that this was so "because what I'm doing is not heavy." As Dr. Ahmad explained, petitioner "would have difficulty in lifting heavy weights." The doctor's examination disclosed fifteen degrees of lost flexion in the knee; ten degrees of lost flexion and five degrees of lost extension, with spasm, in the cervical spine; twenty degrees of lost flexion and ten degrees of restricted extension in the low back, with lumbosacral spasm; and difficulty bending and squatting down.

The doctor's findings, as accepted by the workers' compensation court, together with that portion of petitioner's testimony we have quoted, are sufficient to justify a permanent partial disability award, even if petitioner's earning capacity has not been impaired. N.J.S.A. 34:15-36; Perez, supra, 95 N.J. at 118; Close v. Kordulak Bros., 44 N.J. 589, 599-600 (1965).

Respondent also argues that the judge's decision contains no analysis of why Dr. Ahmad's conclusions were accepted instead of Dr. Gross's, which were derived from an examination almost two years after Dr. Ahmad's. Thus, respondent claims the judge's decision, which inexplicably rejected the later examination, violates Allen, supra, 237 N.J. Super. 132.

Judge Oakerson, decided "[a]s to the partial permanent aspect, the true disability lies somewhere between the varying estimates of the experts." (Emphasis added). We interpret this finding as both a credibility assessment as well as an exercise of the judge's expertise, both of which we must respect. See Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244, 277 (2003); De Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 90 (App. Div.) aff'd o.b., 62 N.J. 581 (1973).

In addition, the second examination by Dr. Ahmad occurred well after the twenty-six week waiting period mandated by the Legislature for determining permanent disability. N.J.S.A. 34:15-16. In Allen, petitioner was injured on December 6, 1985. 237 N.J. Super. at 133. The examining doctor found petitioner to be permanently partially disabled on February 13, 1986, which was little more than two months after the accident. Ibid. Here, petitioner's final examination was not conducted until nineteen months after the assault. This case is not Allen.

 
Affirmed.

(continued)

(continued)

5

A-1919-04T3

February 28, 2006