Category Archives: Appellate Practice

Standard of Appellate Review in Partial permanent disability workers' compensation case

Claimant Orsola Doria, sixty-eight years old at the time of her alleged “accident” filed occupational and specific accident claims against her employer alleging that as a result of her employment as a housekeeper for five years she was totally and completely disabled as a result of the following:

“occupational exposure to dust, fumes, pulmonary irritants, bending, lifting, repeated manipulations, standing, stress, strain, adverse environment causing occupational conditions and diseases . . . .she alleged impairment to her “chest, lungs, nose, throat, neck, back, knees, arthritis, nervous system, neurosis, and complications arising therefrom.”

The claimant presented the testimony of three doctors. Dr. Ahmad, an orthopedist, diagnosed “spinal sprain, arthritis, and [muscle pain.” Dr. Latimer, a psychiatrist, diagnosed her as suffering from “post concussion syndrome, chronic headaches, fatigue and depression” and Dr. Friedman, found that the claimant had “chronic bronchitis.”

Respondent’s doctors found no disability except for 2.5% of permanent partial total for “post-concussion syndrome” related to an incident where a ceiling tile fell on the claimant’s head.

After eight (8) trial days, the Judge of Compensation found a permanent partial disability of 30% of partial total and dismissed the petitioner’s claims against the Second Injury Fund. The claimant appealed.

The Appellate Panel cited the standard of review (exhaustively discussed in our book) found in Tlumac v. High Bridge Stone, stating that the appellate court will not disturb the fact findings of a Judge of Compensation provided they “are supported by substantial credible evidence in the record and not so wide off the mark as to be manifestly mistaken.”

Post-Tlumac, the ‘threshold’ for appellate review has been raised. A party seeking review of the decision of a Judge of Compensation has a difficult bar to surmount. The decision in Doria (above) should lend support to a Judge applying common-sense to a trumped-up claim.

Case: Doria v. Bayonne Hospital, A-4874-06T1 (App. Div. decided June 27, 2008)(Judges Coburn, Chambers, and Waugh, unpublished as of blog date). Attorneys for the claimant: Freeman & Bass.