Expert's failure to test dexterity results in benefits for operator

In New Jersey, an employer must be provided with notice that the odd lot doctrine might be applied to have the opportunity to rebut the worker's showing of unemployability.

Case name: Rambough v. C.V. Hill Refrigeration, No. A-5184-09T3 (N.J. Super. Ct. App. Div. 05/05/11).

Ruling: The New Jersey Superior Court, Appellate Division held that a punch press operator was permanently disabled under the odd lot doctrine.

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What it means: In New Jersey, an employer must be provided with notice that the odd lot doctrine might be applied to have the opportunity to rebut the worker's showing of unemployability.

Summary: A punch press operator alleged that she was totally disabled due to bilateral carpal tunnel syndrome requiring multiple surgeries with multiple trigger fingers in both hands, as well as a depressive reaction. She did not work in any employment after leaving work with the employer. The 61-year-old operator did not graduate from high school, and she previously worked as a nurse's aide and a school lunchroom attendant. She sought benefits under the odd lot doctrine, which allows factors other than physical and neuropsychiatric impairments that are personal to the worker to be considered in the determination of permanent total disability, if work-related physical and neuropsychiatric impairments result in at least 75 percent of total disability. The New Jersey Superior Court, Appellate Division held that under the odd lot doctrine, the operator was permanently disabled.

The employer presented the testimony of an employability expert who opined that the operator had transferable employment skills. She identified several jobs the operator could perform because they required hand movements that would be gross, not fine, movements. The employability expert did not perform dexterity tests. The operator presented her employability expert who performed dexterity tests and opined that she was unemployable. The court found the employer failed to rebut the finding that the operator was permanently totally disabled. The expert's failure to test the operator's hands prevented showing a connection between the operator's hands and the expert's findings.

The court also found that the operator was entitled to attorney's fees.

Read more at the WorkersComp Forum homepage.

July 11, 2011

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