FINAL DECISION

JOSE ARCE, Petitioner
v.
M.P. PRESS, INC, Respondent

For the Petitioner:

MANUEL J. GARCIA, ESQS.
By: ADOLFO LOPEZ, ESQ.

For the Respondent:
BRAFF, HARRIS, SUKONECK, ESQS.
By: JEFFREY MARSHALL & GLEN SAVARESE, ESQ.

Before:
LAWRENCE G. MONCHER, J.W.C.

On July 3, 1990, Mr. Arce was working at his usual job as a printing press operator. He was 28 years old, and had been employed by respondent for 12 years. He was cleaning the machine, when suddenly, his right arm, up to the elbow, was pulled into an inch and a half gap between steel rollers. His right hand and forearm were crushed.

Mr. Arce underwent lengthy hospitalization, multiple operations, skin grafts, consultations and physical therapy. There is nothing more that the physicians have to offer him. He has never worked again. He has been receiving Social Security Disability benefits effective January 21, 1991.

It would be helpful at this point to review the medical history. Following the accident, Mr. Arce was admitted through the emergency room to St. Mary’s hospital where he remained until discharge on August 27, 1990. The primary diagnosis was

"crush injury of right hand, forearm, and lower end of right arm. Necrosis of skin and subcutaneous tissues of dorsolateral aspect of right arm. Paresis of flexor and extensor muscle groups of right forearm secondary to crush injury of right forearm and hand.

The record goes on to describe the mechanics of the occurrence and physical damage to petitioner in detail. His right upper extremity was caught in a printing press and crushed. The contusions and abrasions destroyed the viability of the skin over his hand and forearm. The hand and forearm were swollen, the distal half of the arm from the elbow to the palm, especially on the dorsal side of the palm. Miraculously there were no fracture. The x-rays of the upper extremity were all negative. There was extensive damage to the skin, muscles and ligaments. The physicians reported that the swelling in the right arm tended to go down whenever the hand was elevated over his head.

The next day, July 4, 1990, Mr. Arce underwent his first surgical procedure. The record describes the decompression and fasciotomy of the right arm and hand. Areas of skin and subcutaneous tissue were found to be stripped up in an avulsive fashion from its origins to the deeper tissues via a sheering action. In plain language, areas of skin and underlying tissue were undermined by the action of the rollers. During this initial surgical procedure, the common digital nerve to the web between the second and third finger was severed and then reattached. The fluid which had collected under the skin of the right arms and hand was drained off. The wounds were then closed loosely with gauze dressing and dying skin draped over the exposed muscle of his forearm. The surgeons could not apply normal tension on the suture lines or on the wounds. Fluid continued to drain from his arm.

By July 13, 1990, areas of the skin and underlying tissue had become necrotic. Mr. Arce was then subjected to another surgical procedure under general anesthesia. A split thickness skin graft was taken from his right thigh. The skin graft was applied to exposed muscle tissue of the right arm. Wounds of the wrist and palm were observed to be healing so the skin sutures were removed from the palm and wrist. During the interim, dressings were carefully changed and the healing skin grafts monitored. On July 21, 1990, for the first time, Mr. Arce was permitted out of bed. His physicians decided that the wound sites were healing too slowly, so a second skin graft procedure was performed on August 7, 1990.

The condition of his arm was closely monitored while he received physical therapy which attempted to restore some function to his finger joints and forearm. On August 27, Mr. Arce was discharged to the Kessler Institute for inpatient therapy. He only remained there a short time. The trial record is silent on just what was done for him at Kessler and the reason for the cessation of that treatment.

Mr. Arce’s 4th finger remained in a fixed contracted position. On April 11, 1991, at Overlook Hospital, Dr. Jeffrey Miller performed a release of the contracture of the 4th statutory finger and metacarpal phalangeal joint. Subsequently, the pin which had been inserted to hold the finger open was removed. Six months of physical therapy to his right hand did little to improve his situation.

Thereafter, Mr. Arce was referred to Dr. Roger W. Beasley, M.D. who examined the petitioner on several occasions, including September 9, 1992 and March 17, 1993. Dr. Beasley’s reports note significant restrictions in movement and use of the fingers of the right hand, gross scarring, muscle tightness, shortening of the small finger, weakness of grasp, and adhesions of the long extensor tendons at the wrist and ring finger. He also observed sensitivity over nerves in his hand, possible nerve pathology causing sensitivity in his forearm. One problem which mitigated against further treatment was the large time gap before the patient had been referred to Dr. Beasley. While no further treatment was undertaken by Dr. Beasley, the doctor did recommend that additional efforts should be taken in the nature of vocational adjustments. There has been no treatment or evaluations for treatment, physical therapy or rehabilitation efforts since that time.

I observed Mr. Arce’s right upper extremity. It is grossly deformed and almost useless. His forearm is a collection of red keloid scars which have a spider web appearance. Portions of underlying muscle tissue of the forearm is no longer there. He has extensive adhesions beneath the skin grafts. The destruction of underlying soft tissues including nerves is obvious. One does not have to be a physician to understand that he had a tremendous amount of permanent damage to his right arm. The damage to his forearm causes substantial restriction in bending the arm at the elbow. There is damage at the carpal tunnel and severe restriction in flexion and restriction of the fingers. There is ankylosis of the fingers. They have a goose neck like appearance. He has numbness and pain in his arms and fingers. He cannot perform ordinary tasks such as; cutting meat, holding a fork, combing his hair, or grasping any object in his right hand. He can sign his name, but it is a shaky, uneven signature and even that simple act causes pain because of the necessary movements of damaged skin, muscles and ligaments as well as impaired nerve function. This right-handed man has lost the ability to perform any task with his right hand which requires dexterity. He no takes Naprosyn twice a day for pain. He also takes the tranquilizer, Xanax, twice a day.

Mr. Arce’s right hand has lot its cunning. He has received no training or therapy which would instruct him on how to have his left hand take over functions which had been performed by his dominant right hand. He is incapable of using his right hand for anything except steadying or holding something against his body. Respondent’s authorized treating physicians released him to return to work on limited duty which would not require the use of his right hand. The respondent had no such employment available. No assistance was given or offered to help him learn how to perform physical functions which would allow alternative employment.

When petitioner walked to the witness stand, I observed on the record that he held his right arm still at his side and moved his left arm as he walked. I described the grotesque appearance of his right hand and the donor graft site on his thigh. He complains of persistent pain especially when someone touches his arm or when he moves his arm at the elbow. He also has discomfort at the situs of the skin donor site on his right thigh. The donor site was clearly disfigured to the eyes of any disinterested observer. I reject the contrary opinion of Dr. Canario. I observed the donor site and described what I saw on the record.

Mr. Arce now suffers from a significant post traumatic depressive anxiety impairment. He has an inhibition to using his right arm. He has sleep disturbance and poor eating habits with accompanying nausea. He is frustrated with his condition. His right arm is covered whenever he is out in public, he is embarrassed at the sight of it. His arm and hand are not pleasant to look at. He has recurrent nightmares of the occurrence of the accident. He is irritable, tense and not a nice person to be around. His daily activity is extremely limited. He does not work or go out much in the company of people. He spends his time taking walks, watching television and with his mother. He offers complaints that for years now he has been physically unable to lift or hold his young daughter.

The parties did not present outpatient records from St. Mary’s Hospital in Hoboken where petitioner testified to be undergoing psychiatric therapy. Petitioner’s counsel represented that he could not obtain the records and respondent’s efforts to obtain them were not explained. However, there was no dispute to the fact that he has been undergoing psychiatric treatment and taking Xanax twice a day. Perhaps the best validation of the fact of his depressive anxiety state is that the forensic psychiatric experts for both parties made such findings. The respondent’s expert offered his opinion of psychiatric impairment without detailing findings to support it. Mr. Arce’s depressed mood was obvious to me in the manner of his answers to questions and behavior on the witness stand. There is no dispute among the experts that this is a consequence of this accident. No other source of psychiatric impairment was suggested by the record.

Petitioner testified here through a Spanish interpreter. He did admit to understanding some English but claimed his understanding was not very good. Dr. Crain is proficient in Spanish and did not require an interpreter. Dr. Josephs claimed petitioner could speak and understand English fairly well. From his responses in court, I believe petitioner does understand and speak some English, but not as well as Spanish. He was born in Puerto Rico but was raised in a Spanish culture in Hudson County where he attended school.

The issue here is the extent of permanent disability. No forensic expert pronounces petitioner’s disability as a numerical value of 100%. Still, petitioner’s evidence points to total permanent disability. His experts opine serious permanent partial disability numerical evaluations which exceed 75% in total which I find to be reasonably close to accurate. More importantly, they explain that petitioner’s significant permanent physical and psychiatric impairments secondary to his injury give rise to a situation where it is unlikely that he will be capable of returning to employment. Some might argue that the absence of a specific forensic medical opinion pronouncing the magic number 100% prevents the award of total permanent disability benefits. That is not the law nor the common sense way to evaluate evidence. See Lightner v. Cohn., 76 N.J. Super. 461 (App. Div. 1962) which made it clear that a Judge of Compensation is not bound to the numerical evaluations of the forensic witnesses. Lightner held that a compensation judge may find total permanent disability if the facts warrant it.

The respondent’s proofs here are that Mr. Arce’s disability from this injury is substantially less that total but yet there is a recommendation for retraining after acknowledging unemployment ever since the accident. They had examinations by an orthopedic surgeon and by a physician board certified in neurology and psychiatry. At the conclusion of proofs, respondent moved to join the Second Injury Fund and filed a verified petition pleading as an alternative affirmative defense, that if petitioner’s total disability is total, then it was the result of a combination of this injury with Mr. Arce’s illiteracy and low I.Q. Respondent cites as the sole support of its Second Injury Fund claim that petitioner is mentally retarded and urges that the illiteracy and low I.Q. testing results are a manifestation of retardation. See N.J.S.A. 34:15-95. It relies on a short excerpt from the Social Security Administrative Law Judge decision recommending the award of benefits which in turn quotes from a report of a Social Security examiner. It offers no proofs of prior psychological or psychiatric disability or prior diagnosis of mental retardation. It’s own psychiatric examiner offered no proof of such impairment, he reported in any of the treating records or expert reports or testimony. While he may have a lower I.Q. than most, without more, I cannot find that he was retarded. We do not know whether his illiteracy is a consequence of a mental deficiency so profound as to be disabling or a consequence of a failed school system.

If petitioner’s permanent partial disability is less than 100% but at least 75%, on a medical basis, then it must be determined whether the disability together with matters personal to him, cause the total disability. N.J.S.A. 34:15-36. Prior to the amendment of the above cited definition of total disability as a part of the 1979 Workers’ Compensation Reform Act, this was called an "odd lot" claim and could be established by a minimal quantity of compensable disability made worse by limited education, limited job skills and poor communication skills. See Crooms v. Central Steel Drum Co., 156 N.J. Super. 471 (App. Div. 1978); Barbato v. Alsan Masonry & Concrete, 64 N.J. 514 (1974); Germain v. Cool-Rite Corp., 70 N.J. 1 (1976). Now the statute requires a finding of at least 75% compensable disability. See Darmetko v. Electron Technology, 243 N.J. Super. 536 (App. Div. 1990) appeal dismissed 126 N.J. 316 (1991).

Notice and an opportunity to meet these proofs is required. See Germain v. Cool-Rite Corp., supra. Here, this cases was pending over a long period of time. Respondent would not or could not employ petitioner after this injury. Petitioner was a long term employee of respondent, for more than 12 years. Respondent controlled the lengthy medical treatment as well as a referral to the Kessler Institute. The factors involved were known to respondent, particularly petitioner’s illiteracy as well as his failure to ever return to any employment. It had knowledge of his poor English language skills when he testified here with an interpreter and told of his illiteracy. It had notice of the potential of an award of total permanent disability, its own physicians recommended retraining. It did nothing to help this man or to obtain an evaluation of a psychologist or pursue proofs of prior mental retardation or any prior disability. This failure to act was in the face of all these potential alarm bells that a finding of total permanent disability was likely.

As discussed below, petitioner is totally disabled by reason of the consequences of this accident. The award of Social Security Disability and the decision of the Administrative Law Judge does not play any part in my conclusion of total disability. Nonetheless, I do point to that decision to understand why the tiny excerpt relied on by respondent is not a reliable basis for a decision in its favor on the issue for which it is presented.

Initially, the case came before me as a motion for medical treatment. After a conference, the respondent was urged and agreed to obtain a consultation with Dr. Roger W. Beasley, a renowned hand surgeon at NYU. After examinations and imaging analysis, he advised that further surgery would offer no hope of further physical improvement. The motion was then withdrawn. The parties obtained updated examinations and the case was placed on the trial list. The trial commenced before me in Jersey City, but was delayed because petitioner went to Puerto Rico for a while. He now lives with his parents in Hudson County. Petitioner and his wife have separated and divorced. Additional updated examinations were obtained and the trial under our partial trial was continued as I was transferred to different venues. After the completion of the presentation of all evidence, a Second Injury Fund application was filed by respondent. Pursuant to N.J.A.C. 12:235-7.2 et seq., a conference with the Deputy Attorney General representing the Second Injury Fund was held. The record to that point was provided to the Deputy Attorney General. The Deputy Attorney General objected to joinder of the Second Injury Fund because she argued that the respondent had not made out a prima facie case for the Fund liability under N.J.S.A. 34:15-95. An amicable resolution could not be reached, so under the bifurcated trial rule, a decision must be entered on the record made to date. See N.J.A.C. 12:235-7.2 et seq.

The witnesses were the petitioner and four forensic witnesses. Petitioner’s initial orthopedic examiner Dr. Steinway, no longer examined as a forensic witness in workers’ compensation cases, and was not available to conduct an updated examination. All of the expert witnesses are well respected and qualified by education, training, and experience to offer the testimony and opinions in this cases. Petitioner presented Peter M. Crain, M.D., who is board certified in psychiatry and neurology. Petitioner also presented Mark Friedman, M.D. who is board certified in physical medicine and rehabilitative medicine. Respondent presented Arthur T. Canario, M.D., a board certified orthopedic surgeon. Respondent also presented Allen Josephs, M.D., who is board certified in neurology and psychiatry. Dr. Crain examined petitioner on three occasions, Dr. Friedman on one occasion, Dr. Canario on two occasions, and Dr. Josephs on two occasions. All of the forensic witnesses had access to the same body of treating records and examination reports.

The documentary evidence included reports of Dr. Robert W. Beasley of Hand Surgery Associates, a St. Mary’s Hospital (Hoboken); a June 7, 1991 report from Drs. Miller and Massengil, who were surgeons who had treated petitioner; Dr. Canario’s Spanish language history sheet; Dr. Crain’s C.V.; and the October 29, 1993 Decision of the Social Security Administration awarding petitioner disability benefits. After both parties rested, respondent moved to join the Second Injury Fund as a party and to reopen the record. With consent of the petitioner, a consent order amending the record was entered stating that:

Dr. Perdomo, a psychologist, performing a consultive evaluation in August of 1993 in conjunction with his Social Security proceeding, determine that intelligence testing conducted in the claimant’s native Spanish language revealed a markedly reduced verbal I.Q. of 68, a performance I.Q. of 69, and a full scale I.Q. of 67. The claimant reported to the doctor that he is illiterate and was educated in special education classes in school. He reported that while he attended school until age 16, he never learned to read or write.

Dr. Perdomo, as reported in the same source department relied upon by respondent, stated that while the petitioner:

has significant weakness in short term memory and while the results of intelligence testing placed the claimant in a moderate mental retardation and mental deficiency category... his true intellectual ability was more in line with a borderline range as it appeared that his physical impairment, depression and cultural factors may be depressing his intelligence scores.

There being no further proofs by any party, it is time to determine this case.

The burden of proof here, as in all Workers Compensation cases, is on the petitioner, who must produce the evidence and persuade the trier of fact by a preponderance of the credible evidence of the existence of each element of the claim. See Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984). The same evidential standard applies to the elements of the case on which respondent has the burden of proof. See Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995).

Petitioner has the burden to prove... causal relation [and disability] by a preponderance of the evidence. All that is required is that the claimed conclusion from the offered facts must be a probable or a more probable hypothesis... The test is probability rather than a certainty... However, the evidence must be such as to lead a reasonably cautious mind to the given conclusion. ‘The standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth. It need not have the attribute of certainty, but it must be well founded in reason and logic, mere guess or conjecture is not a substitute for legal proof.’ [Citations Omitted.] Laffey v. City of Jersey City, 289 N.J. Super. 292, 303 (App. Div. 1996).

Once the worker has met this burden of proof, the burden of proof on alternative factual propositions and legal conclusions which will exonerate or mitigate the employers liability shifts to the employer. Cf. Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 109 (App. Div. 1995) and N.J.S.A. 34:15-12(d). This allocation of the burden of proof to establish prior loss of function to the employer is pertinent when the employer seeks to reduce a worker’s recovery in a permanent partial disability case or when it seeks to transfer liability in a permanent total disability to the Second Injury Fund. See Fiore, supra; Katz v. Township of Howell, 68 N.J. 125, 132 (1975). The obvious intent of this reduction of an employer’s liability is to encourage the employment of the handicapped. See Abdullah v. S.B. Thomas, Inc., 190 N.J. Super. 26, 29-30 (App. Div. 1983); Fiore, supra, 140 N.J. at 478-79; Lewicki v. Jew Jersey Art Foundry, 88 N.J. 75 (1981); Gulick, 280 N.J. Super. At 111-15 (App. Div. 1995). The employer not only must prove a lessening of prior function, it also has the burden of showing there is a causal nexus between the prior impairment and the eventual residual compensable permanent partial disability to cause total permanent disability. See Katz, supra. If the last injury causes total permanent disability in and of itself, no matter what the prior disability, the respondent, not the Fund is liable for the full measure of total permanent disability benefits. N.J.S.A. 34:15-95 (a).

Petitioner is admittedly disabled as a result of the compensable injury, the question is how much. The measure is calculated using the 1990 disability rate chart. If his overall permanent disability following the last compensable injury was less than total, disability would be calculated at a percentage of 600 weeks pursuant to the sliding scale disability schedule capped at no more than 70% of his wage. N.J.S.A. 34:15-12(c). If petitioner is permanently and totally disabled as a result of this accident, his compensation award shall be what is essentially a life-time disability pension payable at 70% of his wage for 450 weeks and continuing thereafter for the remainder of his life under the terms of N.J.S.A. 34:15-12(b). If petitioner is permanently disabled as a result of prior permanent partial disability and compensable partial disability, a portion of the award would be paid by the respondent for a finite period of time at total permanent disability rates, with the balance of total disability benefits paid by the Second Injury Fund for the remainder of the petitioner’s life. See N.J.S.A. 34:15-95. Total permanent disability benefits, whether payable by respondent or by the Fund, are subject to possible adjustment until age 62 on account of family Social Security benefits. See N.J.S.A. 34:15-95.5

Second Injury Fund benefits are intended to encourage the employment of the handicapped. The Fund is not, "an insurance scheme or ... pension fund." Ruffin v. Albright, 121 N.J.L. 424 (Sup. Ct. 1938); Shulman v. Male, 70 N.J. Super. 234, 240 (App. Div. 1961). There must be a causal nexus between the compensable disability and the prior impairment to reach total. The basic definition of eligibility for Second Injury Fund benefits require that the total disability be a result of adding compensable disability of less than total to prior permanent partial disability. Shulman, supra. The absence of either element in reaching total clearly precludes Second Injury Fund involvement.

The Workers’ Compensation statute contains these pertinent definitions of permanent disability.

Disability permanent in quality and partial in character [is[... permanent impairment caused by a compensable accident or compensable occupational disease... based on demonstrable objective medical evidence, which restricts the function of the body or 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. ... Injuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant disfigurement, and occupational diseases of a minor nature such as mild dermatitis and mild bronchitis shall not constitute permanent disability within the meaning of this definition.

Disability permanent in quality and total in character [is] ... physical or neuropsychiatric total permanent impairment caused by a compensable accident or occupational disease, where no fundamental or marked improvement in such condition can reasonably be expected.

Factors other than physical and neuropsychiatric impairments may be considered in the determination of permanent total disability, when such physical and neuropsychiatric impairments constitute at least 75% or higher of total disability. N.J.S.A. 34:15-36.

The 1979 Workers’ Compensation Reform Act added these disability definitions as another part of the legislative plan to install a pattern of cost containment for permanent disability awards as a balance for significantly increased disability benefits for seriously injured workers. L. 1979 c. 283; Fiore, supra., 140 N.J. at 468; Perez, supra., 95 N.J. at 110-18; Saunderlin v. E.I. Dupont Co., 102 N.J. 402, 406-10 (1986); Darmetko, supra., 243 N.J. Super. At 541. The clear implication of this legislative policy is that the new stringent standards for proof of permanent partial disability should be incorporated into the definition of permanent total disability. Otherwise, the definition of permanent total disability lacks meaning and substance.

Respondent claims that petitioner’s illiteracy and low I.Q. are preexisting disabilities for the purposes of Second Injury Fund consideration. There is no reported case in New Jersey where personal characteristics which were formerly cited as "odd-lot" criteria such as lack of education, illiteracy, or limited work skills have been cited as prior disability for Second Injury Fund purposes. See Lewicki, 88 N.J. at 75; Padilla v. Concord Plastics, 221 N.J. Super. 301 (App. Div. 1987) aff’d o.b., 113 N.J. 508 (1988). There is an argument that "odd lot" cases, by their very nature cannot be Fund cases. Cf. Padilla, supra. But that is not the basis of this decision.

The argument and plea which respondent makes here was specifically rejected by the court in Morello v. Baldanza Bakery, Inc., 105 N.J. Super. 575 (App. Div. 1969). Educational attainment, intellectual capacity, English language capabilities and vocational skills merely point to the place in the job market where a worker looks for work. In Morello, petitioner was partially illiterate in his native Italian and could not read, write, speak or understand English. Like the petitioner in this case, Morello sustained a serious injury to one arm which he claimed deprived him of all practical use of his dominant right arm. Both Mr. Morello and Mr. Arce had significant psychiatric impairment. Both had an employment record in productive jobs. In Morello and in this case as well, there is no evidence of any pre-accident limitation of work skills or special accommodations by the employer. In Morello, petitioner’s I.Q. tested between 64 and 90 which the trial court found to be below normal. Both the County Court at 102 N.J. Super. 542 and Judge Kilkenny writing for the Appellate Division at 105 N.J. Super 580 found that:

We cannot discern any legislative intent to make the Two Percent Fund liable for payment when part of an employee’s total disability, as interpreted under the Workmen’s Compensation Act, when the preexisting factor was solely the poor literacy or low intelligence quotient of the injured worker.

There may be appropriate circumstances where low I.Q. and/or illiteracy might be shown to be a consequences of a physical injury, psychiatric problem, or mental retardation. The Morello court made the point that there was an absence of such proofs. In this, as in Morello, all that can be said is that the petitioner has a borderline I.Q. Neither one received a good education. Both were functional illiterates. Still, like the petitioners in Morello and Padilla, Mr. Arce had a respectful employment record. He worked for respondent for 12 years operating its printing press. He was married with one child. Unfortunately his marriage ended after this injury and its devastating impact on his being. Before his injury, Mr. Arce was functioning in his own residence supporting his family until this calamity befell him. There was no evidence which would show that his employment duties for respondent were routine and simple, the type typically held by retarded persons. The respondent presented no such evidence. He certainly displayed none of the physical appearance characteristics which are commonly associated with some types of retardation, such as those frequently seen in Downs Syndrome.

The two psychiatrists who examined Mr. Arce on a total 5 occasions offered no opinion that he was retarded or that his inability to read and write was a consequence of any prior mental or physical impairment. Such proofs certainly would have been relevant. It might have been to the advantage of the respondent to have its psychiatric expert witness, Dr. Joseph address this subject in his examinations, and Katz, supra. which points out that the respondent is the party who benefits from establishing Fund liability. Here, respondent chose not to gather evidence other that the simple conclusions it presented late in the trial. It knew from the very beginning of this matter that petitioner was illiterate. One could infer that this may not have been pursued because it might enhance respondent’s liability in a permanent partial disability claim or expose it to a claim of total disability under the "odd lot" doctrine. See Padilla, supra.; Perez v. Capital Ornamental Iron Works, 278 N.J. Super. 275 (App. Div. 1994), certif. Den 140 N.J. 277 (1995). It can be inferred that there was no basis to conclude this man was mentally retarded. Without doubt, he has never had the ability to work as a teacher, lawyer or salesman; but, certainly, he could perform labor and factory work as ha and millions of citizens of this country have.

The respondent and its insurer did not follow the obvious path of teaching this man to cope by using his left hand in place of his dominant now practically useless right hand. The necessity of such a course was suggested by the June 7, 1991 report of one of the surgeon’s Dr. Jeffrey Miller. The need for such rehabilitative medical attention was stated in no uncertain terms by Dr. Beasley in his final report. It chose to ignore the obvious sign posts. Following this devastating accident, it took no steps to be sure that this man had no psychiatric sequelae to this mangling of his right hand.

Respondent knew Mr. Arce could not return to his old job, it took no meaningful steps to ameliorate the impact of this injury beyond physical attention to his right hand. It now finds itself in a situation not unlike the employer who refuses to make available light duty to the worker who is temporarily limited to light duty. See Hartbatuk v. S. Furniture Sys. Insulation, 211 N.J. Super 614 (App. Div. 1986). The Workers’ Compensation Law’s medical treatment provision imposes an absolute responsibility on the respondent to ameliorate the effects of a compensable injury. See N.J.S.A. 34:15-15. Training petitioner to use his left hand would have lessened the impact of the physical and psychiatric impairment. I cannot deal with would haves, but only with the fact situation which remains.

There are consequences of writing off workers who cannot return to their former vocation. The legislature said the loss of earning power is and important measurement of permanent disability when it enacted N.J.S.A. 34:15-36 stating that:

included in the criteria which shall be considered whether there has been a lessening to a material degree of an employee’s working ability.

At this point in time, further medical treatment or training to use the left hand to accomplish work tasks would be futile. Mr. Arce’s injuries are permanent. There will be no further improvement in his orthopedic, cosmetic, and neurological impairments. On the psychiatric issues, he has settled into a life of depression as a disabled person unable to attend to many of his personal needs with a poor outlook on his status and feelings of self worth.

Now the question is just how much permanent disability is present and how does it add up. There is no way to reconcile to conclusions and opinions of the orthopedic examiners. Dr. Canario claims the orthopedic disability is minimal and asserts petitioner can use his right hand for many tasks including using a knife and fork. He opines that petitioner should be limited to lifting objects of no more than 5 to 10 pounds. On the other hand, Dr. Friedman opines that this man can do no more than use his right hand as an assistive aide and to hold objects against his body. While petitioner can oppose his right thumb and index finger, his dexterity and ability to perform tasks which require control, is almost nonexistent as witnessed by the almost illegible signature.

Respondent claimed that examination of Dr. Canario’s Spanish language history sheet supports the doctor’s conclusions. The document was signed by petitioner, but it furnishes no support for respondent’s claim that petitioner has little impairment. It is obvious that except for the signature, the form was completed by someone else. I compared the signature to other handwriting samples including the claim petitioner and a sample given by petitioner during the trial. The signature matches his scratchy disorganized handwriting, while the other marks are legible, straight and smooth. The marks had to be made by a different person. Petitioner’s attorney subsequently informed respondent’s attorney and me that he had been told the form was completed by petitioner’s mother. This merely confirmed my earlier assessment that the writing was not made by petitioner. At this point, even if he were taught how to write, it would be futile to think of employment in any sphere which required written communication because this man lacks the physical capacity to initiate any written or graphic communication.

I find Dr. Friedman’s findings of tightened musculature, decreased sensation, marked disfigurement, marked coldness of the right hand, scarring, loss of ability to perform fine motor tasks to be more reliable because they are more consistent with my observations of petitioner’s damaged anatomy. Dr. Friedman’s examination was more thorough in that he tested more practical skills requiring use of the hand than the respondent’s expert. Dr. Canario’s minimal disability evaluations and conclusions of what this man was capable of just do not match up with the physical condition of this man and will be accorded less weight. Further, Dr. Canario’s recommendation of retraining after so many years of disability and unemployment is not consistent with his disability opinion of 27.5% of the right arm. Dr. Friedman’s collection of 85% loss of the right arm is too conservative. This man has lost all practical use of his right arm. Dr. Friedman’s opinion of a 10% disability to the anterior of the right thigh, the skin graft donor site, is consistent with my observations detailed on the record.

Dr. Joseph’s opinion was that the petitioner’s neurological damage had lessened from 1992 to 1996 improving from a 10 % neurological disability of the right arm to 7½% disability. He attributed much of the loss of function in the right arm to orthopedic impairment. He testified to a mild depressive anxiety state, secondary to the injury which justified the continuing use of a tranquilizer, Xanax. Dr. Joseph opined a psychiatric disability of 5% after both of his examinations. He opined that he believed petitioner was employable if he could find work which did not require use of his right arm.

Dr. Crain examined Mr. Arce on three occasions from 1992 to 1995. He testified to multiple nerve damage to the right wrist and arm. He found extensive sensory nerve damage as well as damage to nerves at the carpal tunnel and in the hand. His disability evaluation of neurological impairment remained consistent at 33_% of the arm. Considering all the physical damage to his arm, including the severing of a nerve during surgery and damage to tissues from this crush injury, his disability estimate coupled with the findings of Dr. Friedman justify the conclusion that petitioner’s right arm is for all practical purposes useless.

At the time of his 1992 examination, Dr. Crain found no psychiatric impairment. By 1995, Mr. Arce’s mental health had deteriorated. Dr. Crain detailed the dramatic changes in Mr. Arce’s emotional state. Dr. Crain described the psychiatric impairment and stated the reasons for it were petitioner’s disfigured right hand and the deprivations it imposed. He testified to how petitioner experienced a serious diminution in his self esteem, becomes irritable, tense, anxious, and depressed. This has caused him to become reliant on Xanax.

Mr. Arce now presents global sensory complaints. This is not a consequence of anatomical nerve damage. Rather, it is a form of reaction to this overpowering injury. Dr. Crain opined petitioner had a psychiatric disability at 35% of permanent partial disability for a pain disorder associated with psychological factors arising from the chronic orthopedic and neurological damage to his arm. Dr. Crain explained petitioner’s global sensory complaints are traceable to his emotional upset and frustration. This is a reaction to his physical condition and the limitations and impact it has had on him. He explained the basis for his conclusions and gave reasons rooted in the medical history and physical condition of the petitioner. I found Dr. Crain’s explanation to be accurate and more persuasive. I believe he was able to penetrate further into petitioner’s psychiatric status because he was able to conduct that examination in Spanish, the language which petitioner uses for conversation. I find that the psychiatric impairment is more likely at the numerical value opined by Dr. Crain at 35% permanent partial disability rather that the 7½% opined by Dr. Joseph’s. I agree with the conclusion that it is unlikely that psychological treatment or any type of rehabilitation would be successful. Petitioner has lived as a disabled person dependent on others for too long.

Considering this man’s inability to return to work by reason of permanent disability which cost him the use of his right arm, a 35% psychiatric permanent partial disability and a 10% disability of the right leg for the cosmetic effect and irritation arising from the skin graft, and for all the reasons set forth above, I conclude that Mr. Arce is totally permanently disabled as a direct consequence of the compensable injury. Therefore, the Second Injury Fund application shall be dismissed with prejudice. See N.J.S.A. 34:15-95(a)

Petitioner’s wage was $340 per week giving rise to a total disability benefit of $238 per week. There was no dispute as to the adequacy of the 60 and 6/7 weeks of temporary total disability payments previously made by respondent. Greater sums of temporary total stipulated at the beginning of the trial and in respondent’s application for Fund benefits is in error. No request was made at trial for additional medical treatment expenses.

Respondent, after request of petitioner, shall provide for all reasonable medical care and medication prescriptions required to alleviate the consequence of this injury. N.J.S.A. 34:14-15. In the event of emergency, advance request may be dispensed with, but notice of the need for the treatment must be given as soon as reasonably possible.

THE AWARD

Temporary total disability equals 60 & 6/7 weeks at $238 per week, a total of $14,484 paid.

Permanent total disability equals 450 weeks at $238 per week and continuing thereafter pursuant to the terms of N.J.S.A. 34:15-12(b). The monetary value of the initial 450 weeks is $107,100. Petitioner was awarded Social Security disability benefits effective January 1, 1991 at the rate of $516.40 per week. He also receives Social Security auxiliary benefits for his daughter who was born on May 19, 1992 at the rate of $257.60, based on a family maximum under federal regulations. His 80% A.C.E. (Average Current Earnings) of $728 per month as reported by the Social Security Administration New York Regional Office is less than his weekly compensation benefit rate, so as to comply with the requirement of N.J.S.A. 34:15-95.5 that his benefits be reduced no lower than the amount of the reduction which would be taken by the Social Security Administration if it were entitled to an offset, the 80% A.C.E. is ignored and the Social Security benefits shall be deducted from the compensation weekly rate. Cf. 42 U.S.C.A. 424(a). Thus, so long as his daughter receives benefits, the offset is calculated at ($774 x 12)/52 or $178.61 per week. When the auxiliary benefit terminates which is calculated to be May 1, 2010, the offset will be ($516.40 x 12)/52 = $119.17 per week until petitioner’s 62nd birthday on April 9, 2024. From petitioner’s 62nd birthday forward, he will be entitled to receive the full rate of $228 per week.

Therefore:

A.) From September 1, 1991 until May 28, 1992, 38 2/7 weeks, petitioner accrued total permanent disability benefits at $238 per week to accrue sufficient moneys to pay costs of this case.

B.) From May 29, 1992 until such time as his daughter’s auxiliary Social Security benefits shall terminate, petitioner shall receive $59.39 per week in compensation benefits.

C.) From May 1, 2010 or such earlier date as his daughter’s Social Security benefits terminate, petitioner shall receive $118.83 per week.

D.) On April 9, 2024, when petitioner is 62 years of age, the weekly compensation rate shall be restored to $238.

ALLOWANCES

Mark Friedman, M.D., for his examination, report and testimony is allowed $450, part of which has been paid by petitioner’s attorney, leaving a balance of $275, payable $225 by respondent and $50 by petitioner.

Peter M. Crain, M.D., for his examination, report and testimony is allowed $450, payable $225 by respondent and $225 by petitioner.

Delgado Interpreting Service is allowed $200, payable $100 by respondent and $100 by petitioner.

Manuel J. Garcia, Esq. Is allowed an attorney fee of $21,000, payable $13,000 by respondent and $8,000 by petitioner.

Reimbursements to petitioner’s attorney for litigation expenses, payable by petitioner:

Advance to Mark Friedman, M.D. $175

Medical records $86

William C. O’Brien trial transcripts $280

Report of Employment expert not called at trial $200

Net expanses payable by petitioner $741

Respondent shall pay stenographic fees to:

North Jersey Reporting $600

William C. O’Brien Associates $300

Dated: February 29, 2000

________________________

Lawrence G. Moncher, J.W.C.