Lightner v. Cohn

• Decision Date: 18 October 1962
• Docket Number: No. A--590,A--590
• Citation: 184 A.2d 878,76 N.J.Super. 461
• Parties: Ralph LIGHTNER, Petitioner-Respondent, v. Samuel F. COHN, Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 461

76 N.J.Super. 461

184 A.2d 878

Ralph LIGHTNER, Petitioner-Respondent, v. Samuel F. COHN, Respondent-Appellant.

No. A--590.

Superior Court of New Jersey Appellate Division.

Argued Sept. 24, 1962.

Decided Oct. 18, 1962.

William M. Cox, Newton, for appellant (Dolan & Dolan, Newton, attorneys; Lewis P. Dolan, Jr., Newton, of counsel).

Leslie S. Kohn, Newark, for respondent.

Before Judges PRICE, SULLIVAN and LEWIS.

The opinion of the court was delivered by

LEWIS, J.A.D.

Ralph Lightner, the victim of a compensable accident which occurred on March 10, 1954, suffered an injury to his right hand resulting in the amputation of the first three fingers and the distal phalanx of the thumb. During that year the Division of Workmen's Compensation awarded him 100% Hand disability plus 5% Of total permanent disability for derivative neurosis. There is no dispute as to the findings and determination of the Division at that time.

In 1960, pursuant to N.J.S.A. 34:15--27, Lightner filed a formal petition for review and modification of the prior award, alleging a subsequently developed accidentconnected shoulder pathology and increased neurological impairment. At the hearing on this application he testified that his incapacitating condition had worsened since 1954 in that he currently experienced a burning sensation in his hand which traveled through the arm and 'around in my shoulders'; he endured resultant pain all the time--'Nights especially'; it was only possible for him to lie on his left side or on his stomach; his right hand continued to shake and tremble; he was subjected constantly to dizzy feelings and headaches; and he was 'all nervous and such.'

Petitioner maintained that he had unsuccessfully tried to find work, saying, 'When I go, they look at my hand and turn around and laugh. They say, 'Man, you are crazy. " Specifically, however his efforts to seek employment were somewhat limited. He applied at a razor blade factory, a box manufacturing company and, on one occasion, he made inquiry of a friend, a street cleaner, as to the possibility of obtaining a job with the city as a 'sweeper.'

The expert medical evidence reveals divergent opinions and accentuates an area of inexactness and uncertainty in the application of medical science to humanistic problems. There were six physicians produced as witnesses, and their testimony may be epitomized thusly:

--Dr. Vincent J. Riggs (for petitioner), a neurologist and psychiatrist, examined Lightner prior to the first hearing in 1954 at which time he estimated, in addition to a 100% Disabled hand, permanent disability of 15% Of total based upon posttraumatic neurosis. On re-examination in 1960 he found that the neuropsychiatric disability had increased to 25%. Under cross-examination respecting the employability of the patient, he stated:

'Well, I have worked for large companies, examining patients for preemployment, and I wouldn't accept him. * * * If I were working for Westinghouse, which I did once, and this man came in, I would turn him down.'

However, he refused on redirect to express an opinion as to whether petitioner could successfully find work in the competitive labor market, contending that such an inquiry was 'away from the psychiatric into the administrative field.'

--Dr. Sidney Keats (for petitioner), an orthopedist, likewise checked petitioner prior to both hearings and found a restriction of motions in the right arm and some flattening of the shoulder girdle, neither of which conditions had been present at the first examination. He was of the opinion that orthopedically there was an additional disability of 7 1/2% Of total and he opined, 'I believe that this petitionr would find great difficulty in obtaining employment.'

--Dr. Phillip Wilner (for petitioner), an orthopedist, whose single examination was on October 13, 1959, testified that petitioner, following hand surgery, was suffering from atrophic changes of the right shoulder-girdle musculature due to secondary adhesive capsulitis. This, in his opinion, was caused by the disuse of the injured hand and the arm, and constituted 12 1/2% Of total disability.

-- Dr. Samuel K. Pollock (for petitioner), a neuropsychiatrist, made a diagnosis on October 5, 1959 expressed as 'traumatic anxiety hysterical reaction with depression.' He reported a permanent neurological disability of 25% Of partial total but stated that petitioner 'probably would be unable to compete in the labor market at all,' adding 'in my opinion, he is 100 percent disabled.'

--Dr. S. Wolfe Emmer (for respondent), a specialist in industrial medicine and surgery, treated petitioner for approximately four months in 1954 and last examined him on May 13, 1960. His proffered evidence was that petitioner had 100% Total disability of the hand but no disability in the arm or shoulder resulting from the accident in question; there was a 'wonderful probability' that this man could be rehabilitated; and that he was not 100% Disabled. He admitted, however, that an examination of the shoulder had not been made.

--Dr. Howard Medinets (for respondent), a physician and neurosurgeon, examined petitioner in 1954 and 1960, and as to his last findings testified: 'The only thing which this man had in addition to 100 per cent of the hand, is some mild anxiety which represents two and one-half per cent and which really doesn't keep him from working,' and that he could conceive of petitioner's getting 'some job.'

Respondent's assertion that Dr. Pollock was not competent to testify respecting an increase in petitioner's disability because he had not seen petitioner at the time of the original injury lacks merit. The proofs before us evidence a requisite comparison within the principles enunciated in Yeomans v. Jersey City, 27 N.J. 496, 143 A.2d 174 (1958). Similarly meritless is the ratiocination that an award of 100% Disablement is Ipso facto excessive where a majority of the medical witnesses estimated that petitioner's incapacity was not in excess of 25% Of total. The judiciary is not bound by the conclusional opinions of any one or more, or all of the medical experts. The Quantum of an employee's disability is not determinable according to any precise formula mathematical rule or scientific admeasurement. Medical testimony is not conclusive. Everhart v. Newark Cleaning & Dyeing Co., 120 N.J.L. 474, 476, 200 A. 759 (Sup.Ct.1938). The question in a case involving disfigurement is one 'peculiarly for the experienced judgment of the determinator of the facts, who is of necessity guided largely by his own observation * * *.' Ibid. Numerous cases have illustrated instances where work-connected disability, total and permanent in character, as contemplated by the Workmen's Compensation Act may exist notwithstanding some residual physical capacity for light or intermittent employment. See Kalson v. Star Electric Motor Company, 15 N.J.Super. 565, 83 A.2d 656 (Cty.Ct.1951), affirmed 21 N.J.Super. 15, 90 A.2d 514 (App.Div.1952), and the authorities therein cited (15 N.J.Super., at page 573, 83 A.2d, at page 600); cf. Simon v. R.H.H. Steel Laundry, Inc., 25 N.J.Super. 50, 95 A.2d 446 (Cty.Ct.1953), affirmed 26 N.J.Super. 598, 98 A.2d 604 (App.Div.1953).

The factual and legal issues presented in Rodriguez v. Michael A. Scatuorchio, Inc., 42 N.J.Super. 341, 352, 126 A.2d 378, 383 (App.Div.1956), certif. denied 23 N.J. 140, 128 A.2d 309 (1957), are significantly parallel with and applicable to the case presently under review. There, the claimant was a non-English speaking Puerto Rican, of limited intelligence, who had lost an arm in the course of his employment as a garbage collector. In writing the opinion for this court Judge Goldmann commented:

'Considered in the light of the liberal construction which the Workmen's Compensation Act should receive, total disability is not to be interpreted literally as utter and abject helplessness. The rule which should guide us has been well stated in Lee v. Minneapolis Street Ry. Co., 230 Minn. 315, 320, 41 N.W.2d 433, 436 (Sup.Ct.1950):

'An employee who is so injured that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist, may well be classified as totally disabled.'

Cf. National Fuel Co. v. Arnold, 121 Colo. 220, 214 P.2d 784 (Sup.Ct.1950); Texas Indemnity Insurance Co. v. Bonner, 228 S.W.2d 348 (Tex.Civ.App.1950); Dietz v. State, 157 Neb. 324, 59 N.W.2d 587 (Sup.Ct.1953). And see Larson, op....