BEFORE: 

                                                HONORABLE ANDREW M. SMITH, JR.
                                                Judge of Compensation

 APPEARANCES:

                                                CHRISTOPHER SUPSIE
                                                Attorney for the Petitioner

                                                MARK LAWHEAD
                                                Attorney for the Respondent

                                                LOIS GREGORY, DAG
                                                For Second Injury Fund

Petitioner is a 41 year-old male who did heavy work as an auto mechanic, repairing brakes, installing mufflers, working underneath engines, etc.  While at work on June 5, 1996, he picked up a heavy tire to return it to a truck upon which he was working.  He felt a sudden sharp pain in his lower back.

By the next morning, his back was so bad that he couldn’t get out of bed.  Later that day, Freehold orthopedist Dr. Manuel Ranzon examined him and diagnosed his problem as a herniated lumbro-sacral disk.  An MRI a week later confirmed this diagnosis. 

Dr. Ranzon treated him conservatively at first, and then administered some epidural injections.  His condition improved and he returned to work on December 3, 1996.  The improvement did not last.  His back soon began to worsen and by March 3, 1997 he could not continue to work and was under intensive medical treatment.  He had three surgeries in 1997 and 1998 to alleviate herniated nuclei propulsi and to fuse and stabilize his spinal column.  The petitioner was not released from active medical treatment until June 16, 1999.

The evidence clearly shows that the petitioner has a severe orthopedic disability.  Respondent has been voluntarily paying the petitioner 30% of permanent partial disability since his medical treatment ended in 1999.

The following issues are presented:

1.  Is Petitioner’s permanent disability total or partial in character?

2.  Does he have any prior functional loss which would entitle Respondent to a credit under N.J.S.A. 34:15-12d, or if petitioner is totally disabled, to Second Injury Fund participation under N.J.S.A. 34:15-95?

3.  If Petitioner’s disability is less than total in character, but his functional illiteracy combines with that disability to render him totally and permanently disabled, is Petitioner entitled to total disability under the “odd lot” doctrine or does his illiteracy constitute a pre-existing physical or mental impairment for which the Second Injury Fund would be liable?

All the doctors who treated and evaluated the Petitioner agree that the nature of his back pathology would prohibit his return to any kind of strenuous work.  His back is fragile after all the surgeries and all of the hardware installed there.  Petitioner cannot lift very much.  Petitioner can not do much twisting, turning, or bending.  He has a lot of pain which increases when the weather changes.  His activities are severely restricted.

I am not satisfied that the orthopedic, neurological, and psychiatric sequelae of his injury are enough to render petitioner totally disabled.  Petitioner’s orthopedic expert Dr. Sidney Tobias, a board certified surgeon with considerable experience evaluating orthopedic injuries, did not find petitioner totally disabled from a medical perspective.  Neither did Dr. Dengrove, his examining psychiatrist/neurologist.

Respondent’s expert Dr. Arico testified about the Petitioner’s orthopedic status.  Dr. Eisenberg of Essex Neurological Associates testified for the Respondent as to the petitioner’s neurological status. These experts ascribed a lower percentage of permanent partial disability to Petitioner Linke’s condition.  While they seem to think that his surgeries contributed more to his back problem than his original injury, they do not deny the seriousness of his present condition.

Having heard all the testimony and applying my own expertise, I find that the Petitioner would have a permanent partial disability of 80% of total, except for an additional problem in addition to his medical conditions which renders him totally disabled as an occupational unit.  Petitioner testified that he left school before finishing the ninth grade.  He can recognize letters and simple words, but for all practical purposes, he is unable to read and write.  Janice Sarapin, a certified learning consultant testified that she tested him and found that his verbal skills are those of a third grader and his mathematical skills are those of a fifth grader.  Petitioner stated that he had a great deal of difficulty with any more than simple verbal and mathematical tasks.

Petitioner testified about a prior heart problem and also about a prior back problem 15 years previous.  Respondent claims that they are pre-existing disabilities for which Respondent is entitled to receive a credit under N.J.S.A. 34:15-12d.  Respondent failed to provide any evidence to demonstrate that either problem caused the petitioner prior functional loss.  Dr. Arico, who testified for respondent, stated that he thought that Mr. Linke had pre-existing functional loss in his back, but that he was unable to estimate a percentage of permanent partial disability attributable to that functional loss.

In order to receive credit for prior disability, the Respondent must satisfy the requirements of N.J.S.A. 34:15-12d which provides:

If previous loss of function to the body, head, a member or an organ is established by competent evidence (emphasis added), and subsequently an injury or occupational disease arising out of and in the course of employment occurs to that part of the body, head, member, or organ . . . the employer . . shall not be liable for any such loss and credit shall be given the employer or the employer’s insurance carrier for the previous loss of function.”

In the absence of any expert testimony assessing the extent of any prior functional loss, I find that Respondent is not entitled to any credit under N.J.S.A. 34:15-12d.

A more interesting question raised in this case is whether his functional illiteracy constitutes a prior physical or psychiatric impairment for which the Second Injury Fund would be responsible or whether it is a factor “other than physical or neuropsychiatric impairment” for which the Respondent alone would be responsible under the “odd lot” doctrine.

N.J.S.A. 34:15-36 incorporates the following language into the definition of “total permanent disability”:

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.

N.J.S.A. 34:15-95 provides in relevant part:

[P]ayments in accordance with the provisions of paragraph (b) of R. S. 34:15-12 shall be made to persons totally disabled, as a result of experiencing a subsequent permanent injury under conditions entitling such persons to compensation therefor, when such persons had previously been permanently and partially disabled from some other cause.

If the petitioner’s learning deficiency is in fact the product of physical or neuro-psychiatric illness, disease or condition, then it is a pre-existing medical disability for which the Fund must pay.  If it is something else, something that is really non-medical in nature, and permanent partial disability is at least 75% of partial total, then Respondent alone is liable under the “odd lot” doctrine.

Larson on Workers’ Compensation, Section 3.04 comments as follows on the “odd lot” doctrine:

A considerable number of odd-lot cases involve claimants whose adaptability to the new situation created by the physical injury was constricted by a lack of mental capacity or education.  This is a sensible result, since it is a matter of common observation that man whose stock in trade has been the capacity to perform physical movements and whose ability to make those movements has been impaired by injury is under a severe disadvantage in acquiring a dependable new means of livelihood by comparison let us say to a book salesman who can continue to make commissions after having sustained a serious injury.

The cases cited in this section of Larson indicate that such conditions as diminished mental capacity or poor educational background usually fall into the category of “odd lot” rather than being considered as pre-existing illnesses or medical conditions.

New Jersey cases law holds that persons who are partially disabled as a result of physical factors such as an injury or illness may be awarded total disability if the partial disability combines with other factors such as age, difficulty with speaking or reading the English language, illiteracy or poor educational background and renders them unemployable.  Respondent argues that the 1979 amendments to Workers’ Compensation Act effectively eliminated “odd lot” in New Jersey.  This argument is not persuasive because the legislature could have expressly eliminated the “odd lot” doctrine and it chose not to, instead of imposing a 75% threshold.

The experts who testified did not satisfy me that they could pinpoint any sort of pathology as the source of the petitioner’s illiteracy.  No objective test such as an MRI or a CT scan of his brain demonstrated any problem to his brain or central nervous system.  Dr. Dengrove testified that he could not find any neurological explanation for the illiteracy.  Dr. Eisenberg did not persuade me that he had found any neurological explanation for the illiteracy.  Dr. Eisenberg stated in a medical report (R-3EV), prepared shortly after he examined the petitioner, that he “manifested no cognitive impairments” during his exam. 

On the witness stand, the Dr. Eisenberg tried to sidestep this statement by explaining that Ms. Sarapin’s test findings were evidence that a problem somewhere in Petitioner’s brain or nervous system had caused his functional illiteracy.  I find this testimony hard to accept.  Dr. Eisenberg did not perform any sort of test to ascertain the petitioner’s cognitive status or perform clinical tests to identify a medical condition which may have been at the root of a cognitive deficiency.  I am satisfied that the petitioner could just as easily be functionally illiterate because he never applied himself in school or because his educational needs were never properly addressed while he was growing up.  I am not satisfied that Respondent has met its burden of proving that the petitioner’s functional illiteracy resulted from some sort of neurological pathology.

Ms. Sarapin did say that she thought the petitioner’s functional illiteracy was caused by “a chemical problem in the brain.”  Ms. Sarapin did not expound on this theory and even if she had, I don’t think she was qualified to render an opinion in the are of neurology.

In Crooms v. Central Steel Drum, 156 N.J. Super. 471 (App. Div. 1978), cert. denied. 77 N.J. 493 (1978), the Appellate Division considered a case factually analogous to the instant case.  The court stated:

Suffice it to say that enlightened social policy imposes upon the employer responsibility 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 consequences, in themselves less than totally disabling, with the worker's personal handicaps.  In our judgment this petitioner, by the clear weight of the evidence, presents a classic and poignant illustration of what the odd-lot doctrine is all about.

Petitioner was born in Florida in 1932.  He went to what he described as a segregated school until he was nine.  Whether because of his intellectual limitations (I.Q. testing performed for purposes of this hearing placed him at the borderline between mentally deficient and dull normal) or because of the quality of pre-war rural Florida segregated grade school education, or because of both, he has remained a functional illiterate, incapable of meaningful oral or written communication and lacking even rudimentary arithmetic skills.

Id. at 473.

In Crooms, supra, the court held that the circumstances of the Petitioner’s learning disability placed him within the “odd lot” category and was not a prior injury or disease which would have made him eligible for Second Injury Fund benefits.

In the case at bar, the proofs establish that the petitioner has met the statutory 75% of partial total threshold for “odd lot” and that he has a learning disability not unlike that which the Petitioner in Crooms had.  I conclude, therefore, that he has a personal handicap which falls within the parameters of “odd lot.”  Respondent is therefore liable for the entire award and the Second Injury Fund is dismissed.

I find Petitioner totally and permanently disabled as of June 7, 1999.  I award him 450 weeks of disability payments at $480 per week ($216,000).  Respondent will receive credit for the portion of its voluntary offer of 30% of partial total  ($28,188) that has been paid to date, and also for Social Security offsets which may be shown by his Notice of Award.

I will allow a fee of $450 for each of petitioner’s expert witnesses, payable half by each party.  Counsel fee of $22,000 is payable $8,800 by petitioner and $13,200 by Respondent.  Stenographic fee of $900 is payable by respondent to John Trainor Agency.

Petitioner’s attorney will please submit a form of order of judgment and dismissal of the Second Injury Fund.