FLORALBA AVENDANO v. TARGET CORPORATION

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1609-18T2

FLORALBA AVENDANO,

          Petitioner-Appellant,

v.

TARGET CORPORATION,1

          Respondent-Respondent.


                   Submitted December 3, 2019 – Decided December 17, 2019

                   Before Judges Gilson and Rose.

                   On appeal from the New Jersey Department of Labor
                   and Workforce Development, Division of Workers'
                   Compensation, Claim Petition No. 2006-15760.

                   John E. Biggiani, Rothenberg, Rubenstein, Berliner &
                   Shinrod, LLC, and The Blanco Law Firm, LLC,
                   attorneys for appellant (Richard B. Rubenstein and
                   Pablo N. Blanco, of counsel and on the brief; John E.
                   Biggiani, on the brief).




1
     Improperly pled as Target Stores.
            Worthington & Worthington LLC, attorneys for
            respondent   Target     Corporation (Francis W.
            Worthington, on the brief).

PER CURIAM

      Floralba Avendano appeals a Division of Workers' Compensation order,

dismissing her claim of total disability under the odd-lot doctrine. We affirm.

      While employed for Target Corporation in 2006, Avendano, then fifty -

one years old, injured her lower back while unloading merchandise in the

company's North Bergen store.         Avendano initially settled her workers'

compensation claim for 55% of partial total disability, with a credit to Target of

15% for prior functional loss. Following "significant" surgery and treatment,

petitioner's claim was reopened and her award was modified by agreement to

75% of partial total disability, with a credit to the employer of 55% for the prior

award.

      Six months later – in the absence of "any additional authorized treatment"

– Avendano sought a modification of her second settlement award, claiming she

was totally disabled pursuant to the odd-lot doctrine.        For the first time,

Avendano claimed she was "unemployable given her medical disabilities and

injuries, limited English, limited job skills and her age." Unable to settle her

claim, the matter was tried before the workers' compensation judge. During the


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three-day trial, Avendano testified on her own behalf and presented the

testimony of her vocational expert; Target presented the competing testimony

of its vocational expert.

      Utilizing a Spanish-English interpreter, Avendano stated she does not

speak or understand English, and it is "very difficult" for her to read and write

the language. Although she enrolled in a community college to learn English,

Avendano claimed she did not complete the course. But on cross-examination,

Avendano acknowledged she disclosed to evaluating doctors that she had

"attained a [l]evel [two] proficiency" in her English as a Second Language class;

was evaluated by Target's doctor without utilizing an interpreter; and passed the

citizenship test – which she had taken in English – nine years prior. Avendano

also testified she had received an accounting degree at an unspecified university

in Colombia before immigrating to the United States.

      In assessing Avendano's credibility, the judge cited the discrepancies in

her testimony, and noted her observations of Avendano during questioning about

her present medical condition. In particular, Avendano answered "a number of

questions about whether [her] complaints had worsened since [her prior

settlement] . . . before the court interpreter had finished his translation." The




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judge thus concluded Avendano was "not a credible witness" having been

"decept[ive] on the issue of her fluency in English."

        The judge also determined Avendano's expert was not a credible witness.

In evaluating his testimony, the judge cited the expert's need to reference his

report to refresh his recollection "immediately upon the start of his testimony";

failure to consider the reports of Target's medical experts, relying instead upon

the reports completed by Avendano's experts; and failure to review the transcript

of Avendano's trial testimony. 2 Noting the expert "was a bit perfunctory in his

testimony and often seemed to be testifying by rote[,]" the judge found

"untenable" his refusal to change his opinion upon learning at trial that

Avendano had attained an intermediate proficiency level in English. The judge

therefore rejected the expert's conclusion that Avendano "was unemployable and

not a candidate for rehabilitative services due to her age and her lack of English

communication skills." In sum, the judge found the expert "was not a credible

witness in that he was unprepared, did not read petitioner's transcript, did not

read [Target]'s expert's report [sic], needed to refer to his report immediately

upon the start of his testimony and to refresh his recollection."




2
    Avendano testified two months prior to her expert.
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      Conversely, the judge credited the testimony of Target's expert, finding

he was "very articulate" and he "was not impugned on cross-examination."

Unlike Avendano's expert, Target's expert conceded facts that were favorable to

Avendano, thereby bolstering his credibility. The judge concluded Target's

expert was "worthy of th[e] [c]ourt's reliance on his testimony as he had better

credentials, he was better prepared, he was more thorough, and more cogent,

and his testimony showed . . . [Avendano] could be employed with assistance

and rehabilitative counseling."

      The judge issued an oral decision dismissing Avendano's application,

thereby leaving undisturbed the second settlement award. Citing the testimony

adduced at trial, medical evidence, and relevant case law, the judge concluded

Avendano's "university degree in accounting in her native country, with further

schooling in the United States involving English as a Second Language, d [id]

not fit the textbook definition of an [o]dd-[l]ot petitioner." 3

      On appeal, Avendano raises the following points for our consideration:

             I. THE JUDGE OF COMPENSATION ERRED IN
             CONCLUDING THAT A FINDING OF NO


3
   Avendano's ensuing motion for reconsideration was denied by another
compensation judge. Avendano has not appealed that order and, as such it is not
subject to this appeal. See R. 2:5-1(e)(3)(i); 1266 Apartment Corp. v. New
Horizon Deli, Inc.,  368 N.J. Super. 456, 459 (App. Div. 2004).
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            TOTALITY UNDER THE ODD-LOT DOCTRINE
            REQUIRED A DISMISSAL.

            II. THE COURT SHOULD HAVE HELD A
            PLENARY TRIAL AS TO THE EXTENT AND
            NATURE OF DISABILITY, REGARDLESS OF THE
            ODD-LOT DETERMINATION[.]

We reject these contentions and affirm.

      Our scope of a review in a workers' compensation case is narrow. Sager

v. O.A. Peterson Constr. Co.,  182 N.J. 156, 163-64 (2004). We have long

recognized workers' compensation judges are considered experts "with respect

to weighing the testimony of competing medical experts and appraising the

validity of compensation claims." Ramos v. M & F Fashions, Inc.,  154 N.J. 583,

598 (1998). Our review of such cases therefore is limited to "whether the

findings made could reasonably have been reached on sufficient credible

evidence present in the record, considering the proofs as a whole, with due

regard to the opportunity of the one who heard the witnesses to judge of their

credibility." Lindquist v. City of Jersey City Fire Dep't,  175 N.J. 244, 262

(2003) (citation omitted).

      Pursuant to the odd-lot doctrine, permanent "total disability may be based

on factors other than purely medical ones." Lister v. J.B. Eurell Co.,  234 N.J.

Super. 64, 75 (App. Div. 1989). The odd-lot doctrine imposes responsibility on


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an employer for "a worker whose unemployability on a regular basis in a

reasonably stable job market results not only from the direct medical

consequences of a work-connected accident but also from the combination of

those [ramifications], in themselves less than totally disabling, with the worker's

personal handicaps." Darmetko v. Electron Tech.,  243 N.J. Super. 536, 540

(App. Div. 1990) (alteration in original) (citation omitted). "Under the doctrine,

the worker is viewed in the [context] of the competitive marketplace, . . . where

his inability to sell his labor may be traceable to his [personal] background

superimposed upon his physical disability." Ibid. (citation omitted).

      Codifying the odd-lot doctrine,  N.J.S.A. 34:15-36 states, in pertinent part:

                  Factors other than physical and neuropsychiatric
            impairments may be considered in the determination of
            permanent total disability, where such physical and
            neuropsychiatric impairments constitute at least 75% or
            higher of total disability.

      In determining whether a petitioner is totally disabled under the odd -lot

doctrine a judge of compensation may therefore consider the petitioner's

education, training, age, background, and substantial "unlikelihood of finding

employment, absent a charitable employer." Lister,  234 N.J. Super. at 75.

Relevant here, inability to understand the English language can provide the basis




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for application of the odd-lot doctrine. 7 Larson's Workers' Compensation Law,

§§ 83.04 & 83.05 (2019).

      Based on our review of the record and the applicable legal principles, we

conclude Avendano's contentions are without sufficient merit to warrant further

discussion in our written opinion. R. 2:11-3(e)(1)(E). Pursuant to our limited

standard of review, Sager,  182 N.J. at 163-64, we affirm, substantially for the

reasons expressed in the judge's well-reasoned decision, which "is supported by

sufficient credible evidence on the record as a whole." R. 2:11-3(e)(1)(D). We

only add the following brief remarks.

      The judge properly evaluated the experts' credibility and made fact-

finding determinations that are entitled to our "substantial deference."      See

Ramos,  154 N.J. at 594. The judge's credibility determination of Avendano's

testimony likewise is unassailable.     Because the judge of compensation is

considered to have "expertise with respect to weighing the testimony of

competing medical experts and appraising the validity of [the petitioner's]

compensation claim[,]" id. at 598, we discern no reason to disturb her findings.

      We also reject Avendano's contention that the judge impermissibly

precluded her from presenting medical testimony regarding her claimed increase

in permanent partial disability in an alleged second-phase of the trial.


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Avendano's contention on appeal that the matter was "bifurcated" is

unsupported. Instead, the record reveals the parties agreed that the issue at trial

was limited to Avendano's claim of total disability under the odd-lot doctrine. 4

      Also, at the conclusion of testimony, the judge stated, "[t]his is an

appropriate time to close the record." Avendano did not object nor inform the

court that additional testimony would be required if she determined petitioner

was not totally disabled under the odd-lot doctrine. The judge rendered her

decision during the next court proceeding, without any similar objection or

advisement from Avendano's counsel. The record simply is devoid of any

indication that Avendano intended to bifurcate the trial or present any evidence

other than her claim for total disability under the odd-lot doctrine.

      Affirmed.




4
  At the start of trial, Avendano's counsel referenced "the issue of Medicare and
perhaps Medicare conditional payment," stating "[p]etitioner is a Medicare
recipient for a number of years." No testimony was adduced concerning that
issue, and it is not raised on appeal. An issue not briefed is deemed waived. See
Gormley v. Wood-El,  218 N.J. 72, 95 n.8 (2014).
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