(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued February 14, 1995 -- Decided July 3, 1995
COLEMAN, J. writing for a unanimous Court.
The issue on appeal is whether diminution in range-of-motion alone is sufficient to satisfy the
"demonstrable objective medical evidence" standard required under the Workers' Compensation Act (Act) to
establish partial-permanent physical disability. The Court also decides whether a minimum percentage of
disability should be established as a threshold for determining when a disability is too minor to justify a
workers' compensation award.
Frederick Colon filed a claim for workers' compensation benefits for injuries he sustained to his left
shoulder and lower back in a motor vehicle accident in June 1990. At the time of the accident, Colon, the
petitioner, was employed as a tractor-trailer driver for Coordinated Transport, Inc., the respondent. The sole
issue before the Judge of Compensation was whether Colon had sustained a "disability permanent in quality
and partial in character" to either his left shoulder and/or his lumbar spine as a result of the accident.
The Judge of Compensation found that Colon sustained a five-percent partial-permanent disability to
his left shoulder. He found no residual permanent disability to Colon's lumbar spine. The Judge based his
decision on his finding that Colon's testimony was credible, and on his conclusion that the reports of medical
experts for Colon and Consolidated Transport contained "objective evidence of the disability." That
description of the statutory requirement was incomplete and the Judge failed to articulate what "objective
evidence of the disability" he found in the medical reports.
Colon's expert, Dr. Fleischman, examined Colon on October 16, 1991. Dr. Fleischman concluded
that Colon still had symptomatology and objective findings referable to his left shoulder. Dr. Fleischman
expressed the opinion that, at the time of the examination, Colon was suffering a disability that was twenty
percent of partial total based on residuals of left shoulder strain and sprain.
Coordinated Transport's expert, Dr. Costino, examined Colon on September 17, 1991. Dr. Costino
concluded that Colon sustained a strain/sprain of the left shoulder as a result of the motor vehicle accident.
Dr. Costino noted that his examination revealed complete mobility in all four extremities and he found no
evidence of significant orthopedic or neurological deficit. Dr. Costino expressed the opinion that the case
represented zero percent of total partial-permanent disability.
Based on the Judge of Compensation's five percent partial-permanent disability award, Coordinated
Transport appealed to the Appellate Division, which affirmed the Judge's decision. The Appellate Division
concluded that, although the findings of the Judge were imprecisely articulated, there was no basis to disturb
those findings given the limited scope of appellate review. In addition, the Appellate Division established a
bright-line rule of less than two and one-half percent of partial-permanent disability as a threshold for
determining when a disability is to be considered minor under the Act. The Appellate Division also rejected
the use in workers' compensation cases of the "objective medical evidence" of disability standard articulated
in Oswin v. Shaw for the verbal threshold in automobile accident cases.
The Supreme Court granted Coordinated Transport's petition for certification.
HELD: Range-of-motion test results are generally subjective and will not, standing alone, satisfy the
statutory requirement in a workers' compensation case of "demonstrable objective medical evidence"
to support an award of partial-permanent disability. In addition, absent legislative intent, it is
inappropriate for the Court to create a numerical threshold to measure "minor injuries."
1. N.J.S.A. 34:15-36 defines the elements of proof of a claim for partial-permanent disability. A petitioner
seeking to prove partial-permanent disability must satisfy a two-prong test. First, the petitioner must make a
satisfactory showing of demonstrable objective medical evidence of a functional restriction of the body, its
members or organs. This showing may not rest on petitioner's subjective complaints alone. Second, the
petitioner must establish either that he or she has suffered a lessening to a material degree of his or her
working ability or that his or her disability otherwise is significant and not simply the result of a minor injury.
The petitioner has the burden of proving both prongs of the test. (pp. 9-10)
2. There must be a showing of physical manifestations that are observable independently of the petitioner's
subjective statement of complaints. A doctor is permitted to consider a petitioner's subjective complaints,
but must also present either clinical or laboratory findings of observable, measurable, physical manifestations
of injury to satisfy the "demonstrable objective medical evidence" standard. Any diminution in range-of-motion in this case may be considered only as any other subjective complaint. (pp. 10-11)
3. In Oswin, this Court held that to satisfy the "objective medical evidence" standard for verbal threshold
requirements in automobile tort liability cases, range-of-motion tests are ordinarily insufficient. Oswin
involved an entirely different statute and, therefore, it is unwise to tack on to workers' compensation law this
Court's interpretation of statutory requirements governing automobile insurance law. (pp. 11-12)
4. Because neither the Judge of Compensation nor the Appellate Division specified what the "demonstrable
objective medical evidence" was, the decision is rejected. (pp. 12-13)
5. Because the Act does not expressly include a numerical threshold, it is reasonable to impute to the
Legislature the intent not to allow a numerical threshold for defining compensability. Moreover, a numerical
threshold may be counterproductive to the aims of the statutory definition of partial-permanent disability.
(pp. 13-15)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Judge of
Compensation to make detailed factual findings based on the present record and redetermine the extent, if
any, of disability to the left shoulder consistent with this opinion.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
STEIN join in JUSTICE COLEMAN'S opinion.
SUPREME COURT OF NEW JERSEY
A-
87 September Term 1994
FREDERICK COLON,
Petitioner-Respondent,
v.
COORDINATED TRANSPORT, INC.,
Respondent-Appellant.
Argued February 14, 1995 -- Decided July 3, 1995
On certification to the Superior Court,
Appellate Division.
Francis T. Giuliano argued the cause for
appellant.
Larry S. Byck argued the cause for respondent
(Cunningham & Byck, attorneys).
The opinion of the Court was delivered by
COLEMAN, J.
This workers' compensation case presents the issue of
whether diminution in range-of-motion alone is sufficient to
satisfy the "demonstrable objective medical evidence" standard
required to establish a partial-permanent physical disability.
As a corollary to that issue, we must decide whether a minimum
percentage of disability should be established as a threshold for
determining when a disability is too minor to justify a
compensation award. We hold that range-of-motion test results
are generally subjective and will not, standing alone, satisfy
the statutory requirement of "demonstrable objective medical
evidence" partial-permanent disability. Absent a legislative
intent to create a numerical threshold to measure "minor
injuries," we deem it inappropriate for the Court to do so.
Petitioner Frederick Colon filed a claim for workers' compensation benefits for injuries he sustained to his left shoulder and lower back in a motor vehicle accident that occurred on June 4, 1990. He was employed at the time as a tractor-trailer driver for respondent Coordinated Transport.
The parties stipulated that the accident arose "in and out of the course of employment," that petitioner lost no compensable time as a result of the accident, and that Coordinated Transport provided all reasonable and necessary medical care. The sole issue before the Judge of Compensation was whether petitioner had sustained a "disability permanent in quality and partial in character" to either his left shoulder or his lumbar spine, or both, as a result of the accident.
The Judge of Compensation found that petitioner sustained a five-percent partial-permanent disability to his left shoulder. He found no residual permanent disability in petitioner's lumbar spine.
The judge based his decision with respect to the shoulder disability on his finding that petitioner's testimony was credible, and on his conclusion that the reports of Dr. Edward Fleischman and Dr. John Costino, experts for petitioner and respondent, contained "objective evidence of the disability."
Not only was the judge's description of the statutory requirement
incomplete; he also failed to articulate what "objective evidence
of the disability" he found in the medical reports.
On Coordinated Transport's appeal, the Appellate Division
affirmed in an unpublished decision. Although the Appellate
Division observed that "the findings of the judge are not
articulated with extreme clarity or precision," it nonetheless
found no basis for disturbing the judgment given the limited
scope of appellate review. The Appellate Division established a
bright-line rule of less than two and one-half percent of
partial-permanent disability as a threshold for determining when
a disability is to be deemed de minimis under N.J.S.A. 34:15-36.
The Appellate Division rejected Coordinated Transport's request
to transport to workers' compensation jurisprudence the
"objective medical evidence" of disability standard that is
articulated in Oswin v. Shaw,
129 N.J. 290 (1992), for the verbal
threshold in automobile accident cases.
We granted Coordinated Transport's petition for
certification.
138 N.J. 266 (l994). We now reverse and remand
for redetermination.
The relevant facts with respect to the medical treatment and the alleged disability relating to the accident are not complex. As a result of the accident, Dr. Gerald Warren treated petitioner with physical therapy for approximately three weeks. Dr. Warren interpreted an x-ray taken of the left shoulder as normal. At
the request of Dr. Warren, Dr. Stuart Dubowitch, an orthopedic
surgeon, performed an examination of petitioner's left shoulder
on August 28, 1990. He diagnosed a severe sprain of the left
shoulder without internal derangement. Dr. Dubowitch ordered
magnetic resonance imaging (MRI) of the left shoulder; it too was
normal.
Petitioner never returned to work for respondent after the
accident. Petitioner attempted to work as a tractor-trailer
driver for another company. He testified that he had to quit
after two days because of back pain caused by pressing the clutch
and lifting heavy boxes. Since that time, petitioner has not
secured employment with any trucking company. He feels that
potential employers reject him because of his statement in the
employment application that he has sustained an injury to his
back. He blames his back injury for his inability to obtain or
retain a job as a truck driver. He has, however, secured work as
a security guard.
Petitioner also testified that he has recurring pain in his
left arm and "once in a while" experiences pain shooting down his
left arm. He complained of numbness in his third and fourth
fingers of his left hand that would "come and go."
Petitioner testified that the accident has affected his
everyday activities. Since the accident, he has stopped
performing certain home repairs such as sheet rocking, painting,
and cleaning the basement because "sheet rocking is pretty heavy
and the bending" bothers his back. However, he has been able to
coach little league baseball as he had prior to the accident.
Petitioner submitted into evidence a report of his expert,
Dr. Fleischman, who examined him on October 16, 1991. Dr.
Fleischman's examination of petitioner's left shoulder revealed
the following:
With his elbows extended supination was accomplished to
95 degrees bilaterally. Pronation was accomplished to
80 degrees bilaterally. Forward elevation of his
shoulders was accomplished to 155 degrees bilaterally,
with pain and clicking at his left shoulder. Abduction
[movement of the left arm away from the body] was
accomplished to 170 degrees bilaterally. External
rotation at his shoulders was accomplished to 70
degrees bilaterally. Posterior internal rotation was
accomplished with the fingers of both hands reaching
the level of T9.
Resisted elevation, downward motion, abduction, and
adduction [movement toward the body] of his arms were
equal in strength bilaterally. With his elbows
extended and flexed pronation and supination of his
arms against resistance were equal in strength.
Pulling and pushing strength were equal bilaterally.
Drop arm test was negative. Adson's was negative.
Dynamometer revealed average hand grasp of 30 kg. on
his left and 34 kg. on his right. Flexion at his
elbows was accomplished to 140 degrees bilaterally.
Both elbows extended fully.
Active motion of his shoulders produced a very slight
crepitus [a crackling or grating sound] at his left
acromioclavicular joint.
. . . .
Forward flexion [at the lumbar spine] was accomplished
with his fingers reaching to 6" from his toes, with the
onset of pain and clicking in his left shoulder.
Dr. Fleischman concluded that petitioner "still has symptomatology and objective findings referable to his left
shoulder . . . ." Dr. Fleischman expressed the opinion that as
of the time of the examination, petitioner was suffering a
disability that was "[twenty percent] of partial total based on
residuals of left shoulder strain and sprain."
Respondent's expert, Dr. Costino, examined petitioner on
September 17, 1991, and his report was submitted into evidence as
well. Dr. Costino's examination of petitioner's left shoulder
revealed the following:
Extremities: Examination of the right and left upper
extremities reveal bilateral symmetry. Examination of
the left shoulder reveals complete mobility in
abduction and forward flexion as well as internal and
external rotation. Mobility at the left elbow and left
wrist remains normal. Fist and grip production and
fine and gross manipulation of both hands are normal to
5 over 5 bilaterally.
Dr. Costino concluded that "it is my impression that the
patient sustained a strain/sprain of the left shoulder . . . as a
result of the motor vehicle accident dated June 4, 1990." The
"[e]xamination today reveals complete mobility in . . . all four
extremities. Examination further reveals no evidence of
significant orthopedic or neurological deficit." Dr. Costino
expressed the opinion that "this case represents zero percent
(0") of total in [sic] partial permanent disability."
Coordinated Transport argues that diminution in range-of-motion, accompanied by subjective complaints of pain and discomfort, does not satisfy the statutory mandate that a
claimant produce "demonstrable objective medical evidence" to
prove a partial-permanent disability.
Although the record does not make clear the basis of the
decision by the Judge of Compensation, see Allen v. Ebon Services
Int'l. Inc.,
237 N.J. Super. 132, 135 (App. Div. 1989); Lister v.
J.B. Eurell Co.,
234 N.J. Super. 64, 74 (App. Div. 1989), he
apparently relied on the range-of-motion tests in Dr.
Fleischman's report. The Judge of Compensation inferred that
because Dr. Costino noted that petitioner could perform certain
motions relating to his back "without significant restriction,"
but did not make a similar notation with respect to petitioner's
shoulder, Dr. Costino also found "objective evidence of . . .
disability" to petitioner's left shoulder.
The judge failed to articulate any basis for his conclusion
that Dr. Fleischman's report contained objective evidence of
disability to the left shoulder. Similarly, without any
specificity, the judge simply said he considered "the testimony
of the petitioner concerning his problems involving his left
shoulder" in determining the existence of permanent disability.
The statute that defines the elements of proof of a claim for partial-permanent disability is N.J.S.A. 34:15-36. It provides:
"Disability permanent in quality and partial in character" means a permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs; included in the criteria
which shall be considered shall be whether there has
been a lessening to a material degree of an employee's
working ability. . . . Injuries such as minor
lacerations, minor contusions, minor sprains, and scars
which do not constitute significant permanent
disfigurement, and occupational disease of a minor
nature such as mild dermatitis and mild bronchitis
shall not constitute permanent disability within the
meaning of this definition.
[N.J.S.A. 34:15-36.]
This provision became effective January 10, 1980, as part of
extensive amendments to the Workers' Compensation Act. L. 1979,
c. 283, §12. N.J.S.A. 34:15-36 "for the first time set forth a
statutory definition of partial permanent disability." Perez v.
Pantasote, Inc.,
95 N.J. 105, 111 (1984). One of "the statute's
primary goals [was] to eliminate awards for minor partial
disabilities." Id. at 114.
Perez v. Pantasote, supra, addressed the evidentiary basis
necessary to satisfy the statutory definition of partial
permanent disability. There we held that under N.J.S.A. 34:15-36, a petitioner seeking to prove partial-permanent disability
must satisfy a two-prong test. Id. at 116. First, petitioner
must make a "satisfactory showing of demonstrable objective
medical evidence of a functional restriction of the body, its
members or organs." Ibid. This showing may not "rest upon
petitioner's subjective complaints" alone. Ibid. Second, "he
must establish either that he has suffered a lessening to a
material degree of his working ability or that his disability
otherwise is significant and not simply the result of a minor
injury." Id. at 118. Petitioner bears the burden of proof on
both prongs of the test. Ibid. (citations omitted).
The legislative history of N.J.S.A. 34:15-36 "implies that
the distinction between objective and subjective contemplated by
the Legislature is . . . between independent professional
analysis and the bare statement of the patient." Saunderlin v.
E.I. DuPont Co.,
102 N.J. 402, 411-12 (1986). The purpose for
requiring "demonstrable objective medical evidence"
is to interpose a professional medical
judgment between the subjective statement of
the petitioner and the award of disability
benefits. Presumably, evidence exceeding the
subjective statement does not mean evidence
excluding that statement. After all, any
medical examination, whether physical or
psychiatric, must begin with the subjective
statement of the patient (unless he or she is
unconscious). To what extent and in what
manner the professional analysis must go
beyond that statement in order to constitute
demonstrable objective medical evidence
appropriately depends upon the nature of the
disability.
In most physical disability claims, medical
analysis quickly goes beyond the subjective
statement by the patient to clinical and
laboratory tests by the physician. The
medical diagnosis usually looks for, and is
in terms of, observable, measurable, physical
manifestations.
[Id. at 412.]
The required physical manifestations that are observable independently of a petitioner's statement of complaints are frequently non-existent in cases involving soft-tissue injuries. Although more serious soft-tissue injuries, those defined as not being minor, may not be apparent in x-rays, physical
manifestations of such injuries are nonetheless required and may
be found in the form of inflammation, swelling, discoloration,
spasm or the like. Consequently, a subjective complaint of pain
or discomfort without accompanying "demonstrable objective
medical evidence," N.J.S.A. 34:15-36, does not satisfy a
petitioner's burden of proving the existence of partial-permanent
disability.
The scope of professional analysis required beyond the
subjective complaints depends on the nature of the disability or
impairment. Saunderlin, supra, 102 N.J. at 412; Perez v.
Monmouth Cable Vision,
278 N.J. Super. 275, 285 (App. Div. 1994),
certif. denied, __ N.J. __ (1995). The closer the disability or
impairment approaches a "minor injury," the more extensive the
professional analysis must be.
We are persuaded that ordinarily a diminution in range-of-motion alone will not satisfy the "demonstrable objective medical
evidence" standard required to support an award of partial
permanent disability. Most range-of-motion test results are
subjective responses of the patient, especially when there is no
physical manifestation that is observable by a medical expert.
Although a doctor is permitted to consider a petitioner's
subjective complaints, the doctor must also present either
clinical or laboratory findings of "observable, measurable,
physical manifestations" of injury to satisfy the "demonstrable
objective medical evidence" standard. Saunderlin, supra, 102
N.J. at 412; see Perez v. Monmouth Cable Vision, supra, 278 N.J.
Super. at 284. Any diminution in the range-of-motion in this
case may be considered only as any other subjective complaint.
We regard as unnecessary Coordinated Transport's argument that we should apply the holding in Oswin v. Shaw, supra, 129 N.J. at 320, to workers' compensation cases. There we held that to satisfy "the objective medical evidence" standard for verbal threshold requirements in automobile tort liability cases, range-of-motion tests are ordinarily insufficient. Ibid. Oswin involved an entirely different statute, and we find it unwise to tack on to workers' compensation law our interpretation of statutory requirements governing automobile insurance law. See Rakip v. Madison Ave. Food Town, 272 N.J. Super. 590, 596 (App. Div. 1994) (refusing to apply Oswin to workers' compensation). We disapprove of the strict application of Oswin to workers' compensation cases articulated in Viera v. Level Line, Inc., 276 N.J. Super. 646, 657 (App. Div. l994). Judges of Compensation have expertise in assessing the nature and extent of the disability. Lewicki v. New Jersey Art Foundry, 88 N.J. 75, 89 (1981).
We acknowledge, however, that Oswin is on parallel track with Saunderlin and Perez v. Pantasote, as well as our holding today. Furthermore, in a case involving surgical excision of a neuroma that required nerve reattachment, the Appellate Division already has permitted range-of-motion tests to be considered in conjunction with "demonstrable objective medical evidence" in
determining whether the requirements of N.J.S.A. 34:15-36 were
satisfied. Perez v. Monmouth Cable Vision, supra, 278 N.J.
Super. at 284-85.
Our careful study of the record in this case prevents us
from applying the foregoing principles and adjudicating whether
petitioner sustained his burden of proof. As we said earlier,
supra at (slip op. at 3 and 7), the Judge of Compensation failed
to make necessary factual findings to support his ultimate
conclusion that the statutory definition of partial-permanent
disability has been met. A decision without proper factual
findings and a reasoned explanation of the ultimate result "does
not satisfy the requirements of the adjudicatory process."
Lister, supra, 234 N.J. Super. at 73; see Perez v. Pantasote,
supra, 95 N.J. at 118-19; New Jersey Bell Tel. Co. v.
Communications Workers of Am.,
5 N.J. 354, 375 (l950); see also
Lewicki v. New Jersey Art Foundry, supra, 88 N.J. at 89-90
(requiring Judge of Compensation to make factual findings and
articulate reasons for the determinations made). The Appellate
Division concluded that the diminution in range-of-motion
reported by Dr. Fleischman and petitioner's subjective complaints
satisfied the "demonstrable objective medical evidence" standard.
Because neither the Judge of Compensation nor the Appellate
Division specified what the "demonstrable objective medical
evidence" was, we reject the decision.
Coordinated Transport argues further that even if a
permanent disability to the left shoulder was established by
"demonstrable objective medical evidence," the injury was minor
and neither materially affects petitioner's working ability nor
substantially interferes with his ordinary pursuits of life. The
Judge of Compensation did not address the statutory proscription
that injuries such as minor contusions and minor sprains "shall
not constitute permanent disability." N.J.S.A. 34:15-36. In
other words, he failed to determine whether petitioner met the
second prong of the Perez v. Pantasote, supra, 95 N.J. at 118,
two-part test. The Appellate Division addressed this issue by
simply concluding that "a minor disability is still compensable
provided the petitioner sustains the burden of proving that his
disability is at least two and one-half percent of partial
total."
Respondent argues that a numerical threshold for
compensability is arbitrary and will "not only facilitate erosion
of the statutory [N.J.S.A. 34:15-36] objective, it [will] as a
practical matter vitiate all efficacy of the statute whatsoever."
We agree.
The language of N.J.S.A. 34:15-36 does not establish a
threshold percentage of disability in defining minor injuries.
"In the absence of specific guidance, our task is to discern the
intent of the Legislature not only from the terms of the
[Workers' Compensation] Act, but also from its structure, history
and purpose." Fiore v. Consolidated Freightways, __ N.J. __
(1995) (slip op. at 21) (citing Roig v. Kelsey,
135 N.J. 500, 515
(1994)).
Because the Act does not expressly include a numerical
threshold, it is reasonable to impute to the Legislature the
intent not to allow a numerical threshold for defining
compensability. Moreover, a numerical threshold may be counter-productive to the aims of N.J.S.A. 34:15-36. If established, it
would increase the probability that the percentage of disability
would be raised just high enough to exceed the threshold, thereby
making more, not fewer, minor injuries compensable. That would
aggravate, not alleviate the "`permanent partial problem' [with
minor injuries] that the Legislature attempted to solve through
the [1980] amendments." Saunderlin, supra, 102 N.J. at 418.
The judgment of the Appellate Division is reversed. The
matter is remanded to the Judge of Compensation to make detailed
factual findings based on the present record and redetermine the
extent, if any, of disability to the left shoulder consistent
with this opinion.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI and STEIN join in JUSTICE COLEMAN'S opinion.
NO. A-87 SEPTEMBER TERM 1994
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
FREDERICK COLON,
Petitioner-Respondent,
v.
COORDINATED TRANSPORT, INC.,
Respondent-Appellant.
DECIDED July 3, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINION BY