APPEARANCES:  

For the Petitioner:     DAVID A. SEMANCHIK, Esquire

For the Respondent: HOWARD W. CRUSEY, Jr., Esquires

by: RALPH BAROSKA, Esquire

  

For the Second Injury Fund: DAVID SAMSON, Esquire, Attorney General

by: LOIS J. GREGORY, Esquire, Deputy Attorney General

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

                Mrs. Florke is a 43 year old totally disabled former certified home health aide.  On September 22, 1993, she was at work at a patient’s home when she fell to the ground injuring her cervical and lumbar spine.  She sustained a herniated disc at L4-L5 and has undergone a laminectomy, followed by a fusion from L4 to S1, implantation of a bone simulator, and a third procedure of removal of the simulator. Unfortunately she has been left with substantial physical impairment including constant back pain, left leg radicular symptoms which interfere with her gait, and head aches.  Her symptoms from this injury require a combination of anti-depressant, anti-inflammatory, and strong pain medication.  Further treatment has not been attempted because it is doubtful that she would be benefitted by further surgery. 

                Mrs. Florke’s impairment has been further enhanced by her physical size. She is 5 foot, five inches tall and weighs in excess of 350 pounds. She has gained approximately 50 pounds since her last surgery. She has always been a large woman, but weighed only 225 pounds before this accident. There is no doubt that her post surgery symptoms have been enhanced by the her increased weight and treatment options have been curtailed because of her obesity.  The respondent has paid adequate temporary disability and provided necessary and reasonable treatment by capable competent physicians. No one could have done more.

                The respondent has been paying disability benefits on account of the anticipated award of total disability. Respondent has agreed that petitioner is totally permanently disabled, the only issue is whether her obesity is a prior disability justifying a transfer of liability for the full measure of total permanent disability to the Second Injury Fund. N.J.S.A. 34:15-95. The Second Injury Fund statute provides in pertinent part that liability for the full measure of total disability is lifted from the employer and imposed on the Second Injury Fund when ever total permanent disability is a consequence of combining permanent partial disability in a compensable injury when an individual is previously permanently partially disabled from some other cause. N.J.S.A. 34:15-95.

                Our case law recognizes that obesity can be a handicap and disabling. See Viscik v. Fowler Equipment Company, Inc.,    N.J.  , 2002 N.J. LEXIS 360 (3/28/2002), an instance where the plaintiff’s morbid obesity was a handicap for purposes of the New Jersey Law Against Discrimination. A similar result would appertain for purposes of the New Jersey Workers Compensation Law and particularly the Second Injury Fund statute.  N.J.S.A. 34:15-95.  If there was prior physical impairment or loss of function as a consequence of petitioner’s obesity, it would qualify as prior disability. There were no health issues because of  her being over weight. She had no limitation on her ability to perform in the workplace. There was no limit on her employment opportunity arising from her weight. 

                Here there has been a gross weight gain following the injury and inactivity caused by the injury. Prior loss of function can be aggravated by the employment injury and need not be static or fixed, but it must be disabling prior to the compensable exposure.  Cf. Fiore v. Consolidated Freightways, 140 N.J. 452 , 478 (1995).   Lewicki v. N.J. Art Foundry, 88 N.J. 75, 85 (1981). The burden of establishing the existence of such prior disability is imposed on the respondent who seeks to reduce its total liability. 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.   Fiore v. Consolidated Freightways, 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 v. Consolidated Freightways, supra., 140 N.J. @ 478-479:  Lewicki v. N.J. Art Foundry, supra.;  Gulick v. H.M. Enoch, Inc.,, 280  N.J. Super.,   96, 111-115 (App. Div. 1995).   

                This can be a difficult and at times almost impossible burden to achieve. Here there has been full cooperation by the petitioner in respondent’s search for evidence of prior loss of function. Here all the record reflects is that Mrs. Florke was a large person before the accident.  But she suffered no physical or health impairment from her weight before the accident. She was heavier than the desired weight for a person her height. Unlike, the plaintiff in Viscik, she had no health problems which impaired her ability to attend to employment or life activities. Her weight was not shown to interfere with her initial treatment options. Unfortunately while inactive due to this injury, she gained approximately 125 pounds.

                I have carefully considered the testimony of petitioner and Dr. Brustein as well as the treating medical records and recent consultation report of Dr. Glastein. While it is clear that her current weight is a significant contribution to her total disability and limitation of treatment options, none of this problem can be said to be disabling before the last compensable injury. For the foregoing reasons, judgement will be entered awarding petitioner total permanent disability benefits after credit for Social Security Disability benefits and payment s made to date. N.J.S.A. 34:15-95.5.