*1 BARBATO, PETITIONER-APPELLANT, LOUIS v. ALSAN CONCRETE, INC., MASONRY & RESPONDENT-RESPON- DENT.
Argued April 1, 20, 1973 1974. November Decided *3 J. Jr. cause Farley, argued Charles for petitioner- Mr. & Farley Farley, attorneys; Mr. Charles (Messrs. appellant Jr., on brief). Farley, J. J. for George Kenny argued
Mr. the cause respondent-re- Connell, & Hughes, McElroy, (Messrs. Foley spondent Geiser, Mr. J. attorneys; George Kenny, of counsel and on
the brief). of the Court was delivered in an judgment opinion by
Pashman, J. Petitioner suffered a work-related myocar dial infarction February shortly thereafter filed a disability. workmen’s claim for compensation total Compensation compen workmen’s acknowledged sation but hearing only total was awarded partial 1/3% by the compensation judge. County An to the Morris appeal Court a de novo review followed. After careful considera tion, were made findings similar to the entered judgment in the Division of Workmen’s sub Compensation. Petitioner Division sequently appealed which affirmed Appellate County Court in an curiam hold unreported per opinion, Bros., the basis of Close ing on v. Kordulak 44 N. J. 589 (1965), findings was not un really emploj'-able were We supported by the record. adequately 63 N. granted certification. J. 550 We reverse. (1973). Barbato, Louis accident, 60 years old at the time of the lived all .his life in Madison, New Jersey. manually While unit, jacking up scaffolding pains he felt his chest. break, After lunch he resumed work but the course during afternoon, petitioner’s pains point increased work, where he left his home, drove himself summoned his doctor and in turn taken hospital to the where he stayed month one under treatment for myocardial infarction.
has been under the medical Kent, attention of Dr. Donald *4 general practitioner who is petitioner’s family doctor. He stated the trial that he had been since treating petitioner 1948. In he treated for a petitioner and coronary, since for blood high pressure and diabetes. tes- Petitioner tified that after his heart attack, to attempted had find less but rigorous employment, unsuccessful, he being had eventually returned to work aas laborer. pres- Since the attack, ent heart Dr. Kent prescribed medications, various and esidrix, pressure blood petitioner’s and digitalis orinase for his diabetes. monthly him on a basis. doc- regular
Petitioner visited The moderately cardiac was condition petitioner’s tor stated that has digitalis certainly that a patient severe. indicated monitored, must be watched, blood to be pressure this Dr. Kent summarized that regulated. the blood sugar of for the duration remain petitioner condition would with not the firm could life. He of opinion work as to his laborer. return tes- Goodman, expert, medical Dr. Rowland petitioner’s 5, 1970, and August Barbato on tified that he had examined diagnosed which reviewed the record hospital infarction to arterio- myocardial due condition as “acute a nar- disease.” This meant there sclerotic heart caus- produced murmur, aortic valve which rowing to more the blood vigorously push the heart beat ing presence There was possible narrowed vessels. through the showed diabetes; the electrocardiogram disease kidney myo- wall a healed anterior ventricular beats premature seg- ST elevation of the and persistent cardial infarction evaluation, on his own 3. Based through leads Y-2 ment ar- from an suffering be Dr. Goodman found heart, aortic enlarged with an heart disease teriosclerotic infarc- myocardial the acute and severe residuals of stenosis tion. based
Dr. added that on petitioner’s Goodman subjective discomfiture, him conges- of his complaints sleeeping indicated and was not tive heart failure was the heart pump- he felt had made Accordingly, patient ing adequately. total, that his recovery, disability was poor 100% be On a result would never able to return to employment. Dr. Goodman’s cross-examination, however, diagnosis hos- disproven. heart failure was somewhat congestive normally record did not indicate the symptoms pital cardiac failure. congestive associated *5 Dr. Sanford a internal Lewis, specialist in medicine and diseases, 1970, cardiac examined November petitioner on behalf of respondent. laboratory Dr. Lewis took normal cardiac examination of well as as an electrocar- petitioner His was that aorta diogram. diagnosis had widened, which in a resulted mild increase to the ven- left tricular cardiac analy- He Dr. Goodman’s segment. disputed — sis of while down. orthopnea difficulty breathing lying He said it that was normal for a to ex- patient post-cardiac — some perience breath, shortness of and occasional dyspnea pains by chest much Never- exerting oneself too too soon. theless, petitioner day, did walk 1.5 miles a in Dr. Lewis’ evaluation, based on Asso- criteria American Heart ciation’s skill of indicated, disability evaluation, this estimation, that petitioner had suffered cardiac only 20% He disability. said, furthermore, that there was no signi- ficant such en- complication arrhythmia, as cardiac gross congestive failure, heart formation. largement, aneurysm or Dr. Lewis believed that of the heart injured portion muscle scar tissue in- replaced by fibrous which heals the case, firmity. In this no developed since swellings nor was any symptom heart of heart failure while evidenced was in he petitioner hospital, found there was no need for e., i. that there no digitalis, rhythm problem Nor, heart. in his analysis, did he ascertain fluid in which would lungs, orthopnea. result -In Dr. Lewis’ opinion, petitioner only suffered from arteriosclerotic heart disease with in- hypertensive myocardial previous farction. Dr. Lewis conceded that would it be im- extremely probable petitioner could resume as a con- laborer, struction but believed petitioner capable quite some sort performing gainful employment. He suggested work clerk, could at an guard, sales or assembly bench in a factory. peti- certain that quite tioner could pass pre-employment physical.
Dr. Goodman took the other extreme and indicated he doubted whether could do any of work. type *6 petitioner a Dr. Kent position, middle
Taking suggested work, defi- but work, paper do desk and pencil some might un- fact, tried, Kent labor. In Dr. hard, not nitely physical his some petitioner employment to to successfully, get change Kent which Dr. due before 1970 to diabetes petitioner’s time in his however, that warned, 1968. Dr. Kent diagnosed He of breath. often short estimation, became petitioner quite in any his ability stay gain- would inhibit thought this ful employment. 5th beyond the grade,
Petitioner’s education did not go of landscaping, his consisted background and less more and all or factory work, general laboring involving His no skills. general manual labor. heavy possessed limited, and although intellectual was somewhat capacity difficulty reading could read he had definite English, some Madison, collected He owned his own home writing. and a a from a labor month Social $25 $180 month pension, him, adult with each Security, and had two children living whom of the household. Since of contributed to the support work, secure a effort to recovery, petitioner made no partial Dr. told him he could for, trial, as he at Kent testified work testified that not and should remain idle. Petitioner the walls and ceiling and at one daily point painted he walks x a inter- stop' of 14 room. He testified he had a wall an rest, but could for hour at mittently paint 15 or a rest. time, and the for 20 minutes without ceiling this, he of rest. days After two bed doing required E. Nawoj, Carl of Industrial Rela- professor assistant aof College tions at Rider and owner service part personnel had interviewed of his request who Barbato agency for counsel, Because he found that petitioner. peti- testified tioner lacked command English language, required out his had filling employment application, help evaluation problem heart, Nawoj’s with his it physical if it be not for extremely unlikely, impossible, would employment. Considering to secure new high his unemployment, petitioner’s age, background rate con- expertise, Nawoj, upon drawing work potential, for Barbato on permanent was no place cluded that there Nawoj’s pro- anywhere. job company for type particular — work sedentary no would be that there fessional judgment — are that employers reality for was based someone reluctant to employ insurance-minded and are age. history, background difficulty conceptualizing had compensation The judge steadily could paint how a with a person 100% testi- the medical all an hour. He reasoned that light testimonial of petitioner’s and from his impression mony brid- unnecessary behavior, there was candor, demeanor and of total feeling which did not inspire and belligerency ling dis- finding minimized Dr. Goodman’s candor. He 100% *7 found He subjective complaints. based on as not ability heart fail- of any congestive were no symptoms that there was disability that, medically petitioner’s nor ure, speaking, total. disability by which defines doctrine
As to the “odd-lot” ones, the compensation other than medical purely factors work, for looked had not out that petitioner judge pointed em- the aid of so, nor sought to do attempted had not was discounted because Nawoj’s testimony ployment agency. area, whereas the Trenton was restricted to his expertise may job opportunities in Madison where resided care- judge The compensation existed. realistically have A. v. Michael Sca- of Rodriguez case fully distinguished Inc., tuorchio, 1958), Div. certif. (App. 42 N. J. 341 Super. age, language, N. J. 140 as to (1957) petitioner’s den. noted and education. conditions, motivation neurological of home, had other sources own owned his that days remaining content to his spend and seemed quite income “odd-lot” doc- idleness; not apply therefore he did in Ap- See and other cases. Rodriguez forth in trine set infra. of the compensation the determination crucial to parently un- asserted of age relation petitioner’s was the judge “When is the most age said: The Judge employability. to obtain significant inability employment, factor in one’s then that individual not entitled to total bene- . fits under the Workmen’s . The Compensation Act that was “in- continued act not Judge compensation tended be or retirement older but no pension plan for longer employed compensation workers.” con- judge The totally cluded to be finding petitioner partial 1/3% disabled. County Court deferred to the Judge considerably the latter’s assessment the wit Compensation Judge ness’ credibility and failure to support objec existence otherwise tively symptoms con indicating heart gestive failure. He agreed substantially the find that the infarction was ings, medically speaking, reasonably was healed a fair quantum measuring 1/3% petitioner’s disability. He further concluded that petitioner did not come within the “odd-lot” and that category unemployable. not reasoned that Having behind purpose compensation impose industry workmen’s caring its disabled responsibility employees where the accident caused the v. Western Electric disability, citing King .,Co 122 N. J. L. 442 (Sup. Ct. he found that no 1939), was present causal between the relationship injury and the inability to secure nor employment, the evidence es tablished degree obvious physical impairment coupled with the factors of such it age training places the prima claimant the “odd-lot” category. facie
I has Petitioner raised two issues. The first is whether there was substantial evidence in the which record would the denial of total justify disability award based solely second, medical factors. The the were courts below error to by failing properly apply the “odd-lot” doctrine and consider factors other hence than medical? Petitioner has trial, his de novo maintained that at the County Court did review the not properly findings compensation judge. Bros., County we “The v. Kordulak said: supra, Close In a new mind to the bring has heavy obligation Court the deter- independent reach own its conscientiously ease and a weighing This includes duty 44 N. J. at 598. mination.” reasoned conclusions of its statement the evidence record before on the de is based even trial novo though Bus Trans- v. Hudson MacDonald Division of Compensation. Div. Inc., 103 (App. N. J. Super. portation, and par- is concerned credibility Where, however, witness’ made, have been judge compensation ticular findings by J. v. Pura-Tex 53 N. Congleton Super. Stone Corp., consider, should County Div. Court (App. 1958), credibility of that by, not bound the evaluation although ex- who saw witness’ compensation judge finding his his demeanor. heard tone observed of voice pression, Inc., supra, MacDonald Hudson Bus Transportation, did care- J. compensation judge N. at 106. We note that the lack of to the witness’ his observations as fully particularize certain for and, further, rejecting reasons credibility as well as testimony, and other expert medical Dr. diag- Goodman’s rejected petitioner. Specifically, con- reasons that medical nosis of 100% objective rather than from subjective clusion derived more behavior post-injury medical symptoms cardiac totally recuperative. did not manifest disabled the compensation who Court County Judge, agreed satisfied. was judge’s findings, apparently quite of our review of workmen’s compensation The scope had, recently where de novo trial was factual findings Press, 64 White v. Atlantic N. J. 128 City (1973). stated fact-finder said we to the give great weight We there was reached on sufficient credible evidence. whose decision nor that alleged, compensation judge error is plain No in such a We see no reason finding. unreasonable of objec measured terms findings. Solely these disturb dis criteria, did not suffer tive medical 100% ability.
II has merit. In We think second contention doc failing petitioner benefit “odd-lot” give trine, in error. record compensation judge was an of non- compels award basis upon total medical law here recognized by factors and elsewhere. Co.,
In & E J. Zanchi v. S Const. 124 N. Super. (Cty. aff’d on N. 1971) Ct. below 63 J. 331 (1973), opinion the facts A my those the instant case. paralleled closely ocardial infarction felled a year old construction laborer. Zanchi, Barbato, claimed total both unemployability medical other He still a doctor seeing reasons. every two weeks at the of trial months after the (16 time attack). Though born, por American Zanchi lived good tion of his life in and reads little Italy. speaks very English. is, Wood “he all Judge pur said: intents poses, functionally training illiterate. His educational and his meager, record only highly indicates strenuous labor of the unskilled 124 N. J. Super. variety.” at 413. Wood which was confronted with Judge this issue we answered in the affirmative: evi “on the basis of other dence and own its common whether circum knowledge, stances unrelated to the accident question, coupled the disability from the accident, rendered arising unemployable.” (Zanchi, supra, at The courts below minimized too greatly these “other and fac circumstances tors” in deciding petitioner’s for total ben non-qualification efits. found They petitioner employable despite regard “due for his overall age, physical condition, and mar the labor analysis ket.” Our criteria these determines conclusively indeed within unemployable the “odd- lot” doctrine. The odd-lot doctrine was first expounded in Cor Cardiff Hall,
poration v. 1 K. B. 1009 In that (1911). case, English unable employee to resume occupation as a driver because of injury work-connected success, applied, without *10 for various of work. forms The light prevailing Spencerian found in philosophy expression the judicial pronouncement that the employer does not guarantee the state the labor of market nor that a workman is entitled to for compensation unemployment due to the fluctuations of the trade. This view was predicated the that if the has theory employee full it is capacity, his own to fend in responsibility the labor market. employer The his discharged is of responsibility once he for compensates the either in employee’s injury, in specie or kind. Nevertheless, Lord Moulton noted Judge that not in all cases is of look- injured capable the employee for out himself in ing other obtaining employment: showing There are in cases which the onus that suitable work upon employer can in fact be obtained does fall the who claims that incapacity partial. only the the workman is If the accident has injured incapable becoming left the workman so he is that an ordinary average capacity workman of in well known branch of — capacities the labor market if in other words the for work left only special not, speak, him him fit for uses and do so to make his powers of labour merchantable article in some of the well known market, upon lines of labour the I think it is incumbent em- the ployer special employment to shew that such in can fact be obtained might undignified phrase, him. I If be allowed to use such an I say should if leaves the accident workman’s labour in the the position market, employer of an “odd-lot” in the labour must shew that customer can will be found who it . . .” take Cardiff Corporation Hall, supra, at 1020-1021. The whether point was the accident had inquiry produced in workman some for work over incapacity beyond his which physical disability, personal himself, prevented his such obtaining employment, the employer’s obliga tion extended to medical compensation beyond the immediate injury. Most courts this country, however, were then rather slow this novel approach. This adopting jurisdic tion, fact, enacted our only Workmen’s Act Compensation in the of the year decision, L. c. 1911, 95, and in Cardiff years, the formative application laws con strictly See, g., strued. e. Electrical Co. v. Splitdorf 90 N. J. L. King, & A. N. J. 524 (E. aff’d 92 1917), Ct. L. (Sup. his Justice, Cardozo, profound manifested
Mr. then Judge, he so worker when for hobbled and helpless concern reality: this expressed eloquently coupled plaintiff] or He [the unskilled common laborer. light. request labor must be with notice that put imposing quickly applicant for more is aside such conditions competitors. patience suitor has with the Business little versatile “nondescript man, for ease favor. He is the “odd lot” Work, it, likely gets labor if to he casual and inter- market”. reasonably Rebuff, might suffered, mittent . if be ascribed . . opportunities narrow await and halt. sick Co., 522, N. E. 634, Jordan v. Decorative 230 N. Y. *11 635-636 (1921).
Justice Francis the (then Judge Francis) recognized effect of the unstable market in total fostering Co., Kalson v. Star Elec. Motor 15 N. J. 565 Ct. Super. (Cty. N. J. Div. A 66-year aff’d 21 15 1951), Super. 1952). (App. old worker a knee compensable injury necessitating suffered cane, with a and and he his around crutch subse getting for additional Evidence was petitioned compensation. quently with sale elicited that the would interfere the leg appearance ability of whatever labor offered to an petitioner employer, if a could a pre-employment indeed such pass to whom he Hot unless was physical. person applying inclination, a had charitable would Francis, job. be earlier decision given Judge citing by Co., Everhart & Heher in v. Newark Cleaning Dyeing Justice J. 1938), 120 N. L. 474 Ct. (Sup. said claim that “[T]he and their injuries ant’s must be viewed as consequences all and whole. He is to intents . . purposes unemployable . and His infirmities deficiencies physical consequent upon the render labor unsaleable industrial accident market him.” accessible to became Compensable disability defined under the Act as the “loss from ensuing personal injury detracts from the former efficiency which of the workman’s ordinary or its members of life in body pursuits rela- N. J. (15 tion to the field of to which he suited.” service Thus, manual 573). heavy at to one accustomed to Super, labor, where intermittent or seden disability was found only Co. v. Klocha Printing work tarji- Jersey City was available. v. 8 N. J. Cleland Verona nsky, Div. Super. 1950); (App. Co.,
Radio 130 N. J. L. 588 Ct. (Sup. The “odd-lot” which viewed doctrine worker in market perspective competitive place given judicial solidification Goldmann Judge Rodriguez Michael A. Scatuorchio, Inc., N. J. Super. 1956), Div. (App. certif. den. 23 N. J. 140 (1957). 43-year- Rodriguez who, old and garbage refuse collector while a can emptying into the back of his garbage employer’s truck equipped a power rotator, driven and slipped, his hand in caught mechanism, the grinding arm necessitating amputation of his joint. six inches below shoulder Rodriguez, native of Puerto Rico with limited knowledge of the English language,- out dropped school never at the third going beyond grade. Prior collector, he garbage becoming worked farmer, a migrant blacksmith and well carpenter’s helper, as as other industrial pursuits. was married and four had children, was and well hard-working adjusted. As a result of accident arm consequential surgery, of an fitting artificial arm of which could make Rodriguez use, but limited self-conscious, became highly nervous had ill-adapted formerly what been normal activities. It became difficult for needs; him to care for his own he became *12 introverted, socially lost confidence, and behaved restless, generally and unhappy depressed manner. He could no maintain his longer either or equilibrium, psychologically medically. other Rodriguez sought employment, applying at 40 over different factories all sorts, but at each approach, he encountered and frustration rejection. All this because of a work-related accident.
Had Rodriguez’ disability been measured solely medical terms, recovery would have been limited to the of the nonuse Rodriguez arm. The court recognized that the psychoneuro- each of in, Rodriguez’ compounding that set logical disability and more significant rejections, social and compensation reinstated the Goldmann Judge consequential. in finding “odd-lot” rule court’s judgment applied entire picture took into consideration disability. total He of one unit, consisting unit working Rodriguez upon generally superimposed on life mental outlook whose virtually unemployable. him disability, rendering his physical of non-manual work education, and lack With a limited all and purposes, to intents found himself skills, Rodriguez workers, who found them- It was for this class helpless. doctrine market, the labor that in an “odd-lot” of selves work, traceable di- to inability get It was the was designed. which was tantamount injury, rectly compensable to the Larson, Law Workmen’s work. inability perform the worker’s pre- Aware of 57.61 (1972). Compensation, § court Rodriguez employment, new obtaining dicament establishes prima that once petitioner announced facie e., “odd-lot,” he unit, i. be- he is no longer employable commented Rodriguez disability. total comes entitled to attitude and work post-accident favorably upon petitioner’s awas evidence of any the absence indicating that was taken not Cognizance malingerer. his own up totally by himself one expected pick superman, bootstraps. of the odd-lot viability doctrine this State Cohn, Lightner evidenced in N. J. Super.
was further 38 N. J. certif. den. Peti Div.), (App. (1962). work-related of three injury amputation required tioner’s thumb, and the resulted in the phalanx fingers of a shoulder and in development pathology subsequent impairment. experienced nervous neurological creased headaches, and encountered ness, diffi sleepless nights, great It was seeking employment. culty upon peti advanced faced with these kind of was often comments: “When tioner and turn around my They look at hand they laugh. I go, N. J. ‘Man, are you crazy.’” Super, at say, (76
529 & Eyeing Newark Cleaning v. relied on Everhart Lightner Co., Kalson v. Elec J. L. Star 1938); 120 N. 474 Ct. (Sup. 565 Ct. 15 N. J. Super. (Cty. Motor Company, supra, tric N. J. (15 Super. authorities therein cited and the 1951), Scatuorchio, Inc. Michael A. supra. v. Rodriguez 573), and permanent total in Lightner recognized court n work-connected some may notwithstanding exist disability employ or intermittent physical capacity light residual ac medical conclusions ment; further, only divergent the uncertainty application an inexactness centuate Lewis ex humanistic Judge problems. of medical science not bound the con that the is judiciary the view pressed medical as the experts, or all of the clusory opinions be reduced to mathematical cannot quantum considered in look factors must be Other admeasurement. ex capacity, whole man: intellectual at the ing debilities, education, general background, physical perience, to communicate inhibitions, ability age psychological em contends that Hence, where the employer English. disabled, is incumbent upon it is less than ployee 100% of such an work within capacity to show employer As as the fact, long employee within reach. is, in employee with voluntarily leecher who or social not a malingerer burden shifts to market, foregoing from the draws Quiles v. N. J. J. See also 468). N. Super. employer. (76 Co., N. J. 91 (1962).1 Metals 37 decide, “The court itself must on the
Zanchi held that: knowledge, own common and its evidence basis of other unrelated to accident in question, whether circumstances ren- accident, from the disability arising with the coupled injured 1932, 1 Pennsylvania, early that where the as declared condition, specially physical perform fitted services can worker employer fact work is in to show that such burden shifts to compensated proof, reach, must the claimant be and absent his within Foods, Inc., disability. Pa. Billante See as for total Stouffer’s (Pa. 284, A. 2d Cmwlth. Cmwlth. *14 dered petitioner unemployable,” (emphasis added) (124 J.N. determination, such Super, the em- Upon must then come forward to that work ployer prove is within reach of the employee. a combined fact ques
Hence total is law and tion. While we reiterate we are not the fact disputing that do issue findings, application legal we take with the by criteria to the facts the below. sitting tribunals The the “odd-lot” doctrine compensation judge recognized it facts from the Rodriguez distinguished as set forth but had looked for herein. out not pointed that He further work nor the aid of employment agencies. sought irrelevant the made Professor dismissed as observations a job no Hawoj person there was permanent-type like This attests to place. in the market existing a “odd-lot” doctrine. While misunderstanding with the Rodriguez Lighiner strong disapproval and noted from the voluntarily who and withdraws employee malingers doctrine is market, labor feature of “odd-lot” pivotal that the mental status of the aged, ill-prepared its recognition when for the is affected injured employee significantly re- life finds unable to first time in his such himself person — laborer, work as manual usually accustomed turn his — of the “odd-lot” situations majority as is ease uncertainty an his financial imponderable faces life. of his work affairs and the remainder when remain long has since we can day passed an whose alternative such employee remaining indifferent to arrival of security and await his social by idly in life is to sit check, knowing worthless and feeling unavailing, or pension longer meaningfully employ no contribute can difficulty cases, Kalson and other we recognized ment. In from a employee, recuperating work-connected aged aid absent the of friends or employment, to find injury, fact that We cannot employer.” ignore simple “charitable vic will not old heart attack year hire most employers and more and ver- alternative attractive younger when tim n we Nor can approve available. are satile competitors to people attendant hiring practices concept pragmatic Profes Trenton, where different in are status than in acknowledged, Madison expertise Nawoj’s sor day age, In modern resides. this where petitioner are opportunities and employment methods of tend may course, Of opportunities alike. part for the most But areas. rather than suburban in urban to be greater deem it sufficient crucial. We altogether it not main, in the a larger Trenton area with that the notice” “judicial to take likely would most output industrial and greater population than opportunities and diversified employment offer more community. non-industrial, residential Madison, relatively *15 to, no reason not accurate, appears as and there If we accept as the im uncontroverted, to which went findings, Nawoj’s find of petitioner’s if not outright impossibility, probability, an unlikelihood Trenton, greater then is even job in it ing Madison.2 would find work in petitioner that Company, 5, v. In Petrone Coal 427 Pa. A. 2d 233 891 2 Cf. Moffat eloquent (Sup. 1967), ques opinion Ct. Justice Musmanno in an : tioned person capable light performing How the is does fact that a of guarantee light work that work is available. Suppose capable performing that work claimant is is shoveling Florida, suppose that of and or he snow he lives is capable picking finding and cotton he lives in Maine? If the perform “capacity light anything, work” is to mean there must light (233 893). be A. some evidence that work exists. 2d at Army Exchange Neuman, Supp. In Air Service and Farce F. 278 (W. 1967), D. La. it was stated: quite Perhaps Deputy it would not be correct what state implied, Commissioner burden is on the defendants practical get. matter demonstrate as claimant can a suitable job earning living. and is therefore disabled from not her But as a practical not matter is far from such the true burden defendants Deputy should have borne before the Commissioner. If the claim- proof had burden ant to establish her position commensurate with her now lessened abilities was im- — plausible, proving negative she would have the burden of fact rarely, imposes. something ever, law if Should seek she em- ployment day negative for a to establish the fact that she cannot and Meaningful thoughtful reflection supports the conclu- sion that the determination of whether work in fact available to the Madison area or immediate its environs and the notification of that fact were the respon- sibility the employer.
Nor should undue any reliance be placed supposed lack of motivation in not actively seeking employ ment, a point alluded to We compensation judge. agree with view expressed in a recent decision, Oregon Deaton v. Fund, State Accident Insurance 509 P. 2d (Or. : App. 1973) apparent physical . condition, . . [W]hen it from a claimant’s plus factors, all the other relevant that he is unable to work at gainful employment, immaterial, suitable and motivation is because it appears unlikely that with the best of even motivation could ob- employment. (509
tain and such P. retain 2d at To burden on impose contrary petitioner would be to ren- der useless the salient features of the “odd-lot” doctrine. arm, had lost had lost
Rodriguez Lightner three fingers thumb, in Polulich v. phalanx Co., J. Tool Die & G. Schmidt 46 N. J. Stamping Super. Id. 1957), fingers. Ct. had lost four 150. (Cty. Disabili ties of these were petitioners apparent. But stated Kalson, Zanchi, re-affirmed in supra, recently a person a myocardial suffered infarction having is equally scarred are internal A even his wounds ones. though petitioner of *16 as the latter has of category scanty chance a pre passing as former. physical does the employment employer takes finds Belth v. him, as & employee Anthony the Ferrante Son, Inc., N. J. 38 (1966), all of the latter’s un- days? Clearly, only find it? Two A A week? month? mean- way position parties ingful to such a situation would be to — require party prove positive of interest to fact to re- employer quire prove employed. her to she could be This her em- ployer failed to do. Safeway Stores, Inc., Brown v. See also 82 N. M. P. 2d (App. revealed in a conditions and thor- derlying quiescent diseases more enough, medical examination. it is ough Interestingly of an uncertainty for to hire employer 60-year-old ap- with an heart than plicant condition to hire underlying man of 43 with a family support, one-armed industrious and whose The for- motivation cannot be found wanting. time; mer’s condition well latter may re-appear may first, should, time, have some but in due difficulty at adjust and not be attacks nor fear strenu- prone recurring ous work. victim as Hence to discount the heart attack source of his em- to himself as a unit and to anxiety working ployer, is to ignore hiring the realities and acumen of the businessman. We are not so naive. in Rodriguez
That Polulich petitioners little spoke is not a factor English enough those cases distinguish from instant one. To suppose barrier language was the which significant element those failed petitioners to receive and which led to their post-accident psychoneurological traumas is to misstate the obvious. claimants, Neither of those nor petitioner herein, completed an elementary even school education. It was at the suggested in the compensation hearing instant case that work: of desk or other elevator capable light op- physically or such work. We have seen the conse- erator, some guard the other their non-ob- befalling petitioners upon quences e: where made over 40 any jobs: g., Eodriguez ap- taining and Polulich 100. it is rational and very Since plications human act when are re- likely accordingly they beings shunted, how can we here suppose jected with his experience? Certainly, will not the same undergo condition, he for any education and present unqualified at the we jobs compensation hearing. Are suggested time Barbato too to wait until such behavorial undergoes we find a disability neurosis before petitioner deserving review judicial award? Our takes into account the scope of eases and real life factual have situations that plethora this Court over the Their years. before value passed speaks *17 534 such lesson that One functional import.
in their terms of. nature, human can compre- of observers we, as and Judges and applying finding before calamity not to await hend is of Our sense social remedies. precautionary suitable and damage wait until further that we do not demands justice done. has been of conclusion, the description
In a person fitting selling his services who has no reasonable prospects herein substan- material becomes earning capacity and who no has unit of Our society. as a self-sustaining tially helpless laws were workmen’s compensation remedial and beneficent and wel- society obviate of the charge expressly designed remand such a In we reverse and light, fare this person. an award in accord- division enter to the compensation with this opinion. ance join in this Judge opinion.
Justice Jacobs Collestek Coneokd, P. D., (concur- J. A. Temporarily Assigned I I of the fully opinion concur Point Court’s ring). conclusion of arrived at in Point II. compensability under doc- compensability odd-lot principle in Zanchi v. & K trine was embraced this Court S firmly by Co., Const. N. J. 331 63 (1973), adopting findings well-reasoned Wood for opinion conclusions Judge Court, in 124 N. J. County the Union 405 reported Super. Division (1971). The had theretofore held Appellate long Scatuorchio, Inc., v. Michael A. 42 Rodriquez the same view. N. J. 341 N. Super. Div. certif. den. 23 J. (App. 1956), Cohn, Lightner 76 N. J. 461 .(1957); Super. (App. 1962), Quiles Div. 38 N. J. 611 certif. den. and see (1962); Co., Larson, v. N. J. ; Metals 37 N. J. (1962) 57.51, Workmen’s 82 et Compensation (1970) p. seq. § Thus, issue here is not the present viability justification odd-lot doctrine but the in- rejection its in this case applicable by Judge and the Compensation county court, and for the determination the Appellate Division that tribunals finding by those that petitioner *18 substantial by was supported unemployable” really “is not in evidence credible record.. tribunals by for disallowance the reasons
A review of the odd- under of total claim below of on two broad was barred that he suggests doctrine lot and attendant condition Petitioner’s physical (1) grounds. a of conclusion did not equate circumstances personal employ not seeking laid on his stress was unemployability; at was primarily this ment; If he (2) unemployable not does in such case compensation age, to tributable retire a or pension “intended to be was not attach as the act (com employed but workers” longer ment for older no plan also undergirded Both aré conclusions decision). pensation did petitioner impression compensation judge’s factor, As to the last a of total candor”. feeling “inspire not operative as to material findings of specific absence a credibility of as to facts, impression a trial generalized Congleton See use court. slight appellate is of to witness 282, 53 N. J. 286-287 Pura-Tex Corp., Super. v. Stone 1958). Div. (App. “reasonably
On the in a stable unemployability issue Larson, see op. market” such [job] person petitioner, tit., a 60 two coro- 57.51, we have victim of p. year old § work-connected, attacks, one, moderate se- nary the last to the verity, recovery, according with worse-than-average not the sixth grade treating physician. completed had and had His is “low normal”. difficulity intelligence reading. involved always heavy His work has experience past The manual labor. He had no trade. treat- training had labor but said physician proscribed heavy petitioner ing could “desk work”. do evidence to find and
Direct do petitioner’s capacity on a work suitable his condition abilities continuous basis was not because had not tried to presented petitioner find work nor there was work available respondent prove for such But there was indirect evidence in person. no work testimony petitioner’s expert that there was for one him in market; like the existing job and also in the proof that after had his petitioner first heart attack seven he years tried but previously not find light work, no could heavy labor, but which only at that time was able to man- rule if age. settled is that pertinent prima fits the odd-lot the burden category proof facie the issue of of work for availability person passes such Co., & Zanchi v. K employer. S Const. N. J. supra (124 Cohn, Lightner at Super, 411); N. J. supra (76 Super. True, here home, $200 owned had a month in *19 social security benefits and children adult to contributing the home He thus had support. less motivation to seek work than others less fortunate. This seemed to weigh heavily the judgment However, the compensation these judge. if, facts are irrelevant in a it, case for the calling employer has not offered proof that work is available for workman. The criteria for the odd-lot doctrine are not sub- objective, jective. Fund, See Deaton v. State Accident Insurance P. 1215, 2d 1218 (Or. App. 1973).
Petitioner’s situation clearly met the criteria for prima application of the odd-lot doctrine. His case is hardly facie distinguishable factually from that of the Zanchi, supra, where we held the doctrine under controlling the facts (In below, fairness to the Zanchi tribunals de was cided after the Appellate herein). Division decision Each case involves laborer of 60 with a substantial about cardiac disability and limited education Zanchi skills. held case, and a odd-lot denial of disability was reversed 100% notwithstanding petitioner had not made affirmative efforts to secure employment, not having undertaken employer show employment was available for him. The Zanchi precedent calls for here, the same conclusion as the gen do eral views held elsewhere on the subject burden of proof Larson, cil., 57.61, in this area. See op. 88.13 et p. seq.; § Neuman, Air Army Force Exchange Service v. 278 F. 865, Stores, D. Supp. La. Brown (W. 1967); v. Safeway Inc., 82 N. M. 483 P. 2d 305 (App.
There no tenable for is basis the views of the compensation and county courts that because is the petitioner’s primary age cause of his unemployability, compensation act is not vehicle for his relief. One may pass whether question age was a more significant contributor to petitioner’s assumed than unemployability his employment-connected heart condi tion. bemay latter, It noted that were not for it he would still be presumably at working heavy labor. But controlling is the importance principle employer that the takes the em ployee him, Son, Belth finds v. Ferrante & Anthony Inc., 47 N. J. 38 him and here he took (1966), his then If age. the work-connected on the whole injury, operating person, total produces odd-lot disability (meaning, area, unemployability) employer responsible whole result, Ibid., notwithstanding also contributory the end in result are the other disadvantages, cluding age. The cases are in which the odd-lot doc legion trine was applied significant fac notwithstanding age tor the picture of Eor unemployability. present purposes Cohn, it Zanchi suffices cite both Lightner supra, men in their 60’s. involving both of the lower tribunals denying determinations total *20 in this case on this insupportable record being fact,
either law or they are reversed the court. properly Justice joins this opinion. Hall J. I would affirm the judgment Sullivan, (dissenting). Division sub- ground on the there is Appellate stantial credible evidence the record to present support that, facts, on the finding County Court the “odd- apply lot” doctrine did not to petitioner. in this dissent. joins
Justice Clifford J., concur in result. and Judge, Hall, Conford, n — n Chief Justice Acting reversal and remandment
For P ashman Judges Jacobs, Justices Confokd Hall and Collester—5. Clifford—2.
For Sullivan affirmance—Justices PETITIONER-APPELLANT, OGLESBY, AMERICAN QUINCY COMPANY, RESPONDENT-RESPONDENT. DREDGING April Argued September 25, 1973 1974. Decided