Rodriguez v. Michael A. Scatuorchio, Inc.

• Decision Date: 30 October 1956
• Docket Number: No. A--527,A--527
• Citation: 126 A.2d 378,42 N.J.Super. 341
• Parties: Aurelio RODRIGUEZ, Petitioner-Appellant, v. MICHAEL A. SCATUORCHIO, Inc., Respondent-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 341

42 N.J.Super. 341

126 A.2d 378

Aurelio RODRIGUEZ, Petitioner-Appellant, v. MICHAEL A. SCATUORCHIO, Inc., Respondent-Respondent.

No. A--527.

Superior Court of New Jersey.

Appellate Division.

Argued Oct. 15, 1956.

Decided Oct. 30, 1956.

Louis C. Jacobson, Newark, for appellant (Herbert Klosk, Newark, attorney).

William T. McElroy, Newark, for respondent (Shaw, Pindar, McElroy & Connell, Newark, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

This is a workman's compensation appeal from a County Court judgment modifying an award of total and permanent disability granted in the Workmen's Compensation Division.

Petitioner was employed as a garbage and refuse collector. On May 9, 1953, while emptying a can of garbage into the back of one of respondent's trucks equipped with a power-driven rotator for grinding up the garbage and packing it in the truck, petitioner slipped, his left hand was caught in the grinding mechanism and his arm pulled in up to the left shoulder, so that it was practically severed. He was removed to a hospital and the amputation completed surgically about for to six inches below the shoulder joint. Respondent has from the start recognized that there was a compensable accident in the statutory sense. Prior to the compensation hearing it had paid petitioner $30 a week for 31 weeks for temporary disability, and at the time of trial was paying him $30 a week on the basis of 100% Loss of the use of the left arm, in accordance with N.J.S.A. 34:15--12(p). In addition, it had supplied him with an artificial arm.

Rodriguez filed a petition seeking compensation over and above the offer previously made and partially paid by respondent. The sole question presented in the Workmen's Compensation Division and in the County Court was whether he was entitled to compensation beyond that provided for by N.J.S.A. 34:15--12(p). The deputy director made an award of 100% Of total permanent disability. Respondent having appealed, the County Court, after a trial De novo on the record and argument, reduced the award to 100% Loss of the left arm and 12% Of total permanent disability for other orthopedic and neurological injuries stemming from the accident. Pursuant to R.S. 34:15--15 N.J.S.A. the court directed respondent immediately to rectify the prosthesis theretofore furnished petitioner and which had broken, and that he be given instructions by a Spanish-speaking instructor in its proficient use. The County Court, incidentally, held that petitioner had failed to establish that a hernia of which he complained was causally related to the accident, and that he had failed to give the required statutory notice thereof. N.J.S.A. 34:15--12(x).

The notice of appeal from the County Court judgment indicates that petitioner not only appeals from the reduction in the award, but from the counsel fees allowed for services in the Workmen's Compensation Division and in the County Court. No separate point is made in petitioner's brief that the counsel fees awarded were inadequate in the light of the County Court's ultimate finding as to disability. It is therefore to be assumed that the contention with respect to this issue is that to the extent counsel is successful in establishing here the petitioner's disability exceeds the Bona fide offer made by respondent, or exceeds that found to exist by the County Court, he is under N.J.S.A. 34:15--64 to be relatively compensated for his services.

On this appeal petitioner seeks to reinstate the judgment originally entered in the Division. Both the deputy director and the County Court judge recognized that in addition to the loss of his left arm Rodriguez suffered orthopedic and neurological disabilities as a result of the accident. They differed, however, in the extent of the disability allowed. As has so often been stated, we review the judgment of the County Court, but may in the interests of justice make independent findings of fact.

To ascertain whether Rodriguez sustained permanent and total disability requires us to determine, first, what his condition as a working unit was just prior to the accident, and next, what effect the accident had on him as a working unit.

Petitioner was 43 at the time of the accident, and 45 at the time of the Division hearing. He is a Puerto Rican, does not speak or understand English (he testified through a Spanish interpreter), and is a man of limited intelligence, having left school in the third grade at the age of 15. In Puerto Rico he worked in a sugar cane mill for seven years as a blacksmith's helper, then as a carpenter's helper and, finally, as a street laborer. He came to the United States in 1948 as a migrant farm worker, being employed on a farm near Buffalo for a year and then in California where he picked oranges. Thereafter he came to New York and for three years cleaned, swept and painted ships. He next was employed by a dinnerware manufacturer as a polisher. Following this he went to work for respondent as a garbage collector, working steadily without loss of time for six months preceding the accident.

Rodriguez enjoyed a normal life with his wife and four children. He was socially well adjusted, had friends who liked his company, and went to movies and dances. He was, of course, able to take care of his normal personal needs. In addition to his regular work he did odd jobs of painting, plumbing and the like. Petitioner's landlord and his wife fully corroborated his account of his day-to-day habits and activities.

The picture of Rodriguez which emerges from the record is that of a normal industrial unit, a non-English speaking, uneducated laborer, hard-working and industrious.

Following the accident and amputation--the record does not disclose the date--Rodriguez was fitted with an artificial left arm equipped with a metal device designed to open and close so that he could pick up and handle objects. Subsequent to the fitting he attended the Institute of Physical Medicine and Rehabilitation in New York City for two weeks, where he received instruction in the use of the device. However, this was not given in Spanish, nor even in English, but by gestures. It appears that because of this inadequate instruction petitioner was able to make only limited use of the device while it was in working order. It broke some five months before the hearing, but he did not have it repaired.

The proofs were that since the accident Rodriguez has been unable to take care of his personal needs, such as dressing and bathing, and requires the help of his wife or friends. He cannot use the subway much because the presence of other people makes him nervous; they push him and he is afraid of falling. His family life has been affected. His social relations have been cut off because of his shyness and sensitivity to the reaction of friends to his appearance--when he sees them he hides, and they have stopped coming to his home. His activities are confined to lying around the house; he is restless, upset and unhappy. He has tried to do odd jobs about the place but became dizzy and had to discontinue. He has a phantom pain where his left wrist would be, pains in his back, left chest and left thigh, and continuous headaches at night. He cannot always maintain his equilibrium. The artificial arm is too heavy and ill-fitting; it is a source of embarrassment, and when in public he holds the end of it in his pocket because of the remarks people make. He gets nervous, dizzy and sick when he looks at people, as was dramatically manifested when he suffered a dizzy spell on the witness stand and a recess had to be taken. Almost all of these details were corroborated by his wife and the landlord. But what is more important is the fact that petitioner has not worked since the accident. He exhibited a list of 40 different factories where he applied for work. His efforts to find employment have been fruitless and frustrating.

This account of the change in petitioner's physical, mental and nervous condition and of his disability, based upon his testimony and that of his landlord and wife, must now necessarily be supplemented by reference to the medical testimony.

Dr. Visconti, an orthopedist, examined Rodriguez in December 1953 and December 1954. In addition to the amputated arm he found atrophy in the pectoral chest wall region and left scapular area due to disuse of the arm, a disturbance of the head, neck and left scapular muscles, a visible hernia, and a neurosis. In his opinion, petitioner's condition was causally related to the accident. He evaluated disability at 100% Total for loss of the left arm, 10% Of total for the atrophy, and an additional 7 1/2% Of total for the hernia. From an orthopedic standpoint, it was his expert opinion that petitioner could do some work consistent with his disability; however, adding the neurosis to the orthopedic impairment, he was unemployable. On cross- examination Dr. Visconti emphasized that individuals react differently to the loss of an arm: some accept the situation and adjust themselves accordingly, others may develop a severe neurosis. In this case he was considering the type of person petitioner was, including his background, education and particular reaction to trauma. Without taking into consideration the estimate of disability with respect to the hernia and the atrophy of the pectoral and scapular areas, petitioner's disability would still be 100% Of total. Rodriguez, said the doctor, was no longer 'a competitive unit.'

Dr. Siegel, a neurologist and psychiatrist called by petitioner, had examined him, with special reference to neuropsychiatric features. He found an adult male of limited intelligence who seemed depressed, morose, sombre and tense, and who was obviously suffering psychiatric trauma as a result of the loss of his left arm. In his opinion the condition was causally related to the accident, and petitioner was...