Barbato v. Alsan Masonry & Concrete, Inc.
Barbato v. Alsan Masonry & Concrete, Inc.
Opinion of the Court
The judgment of the Court was delivered in an opinion by
Petitioner suffered a work-related myocardial infarction on February 24, 1970 and shortly thereafter filed a workmen’s compensation claim for total disability. Compensation was acknowledged at the workmen’s compensation hearing but only 33 1/3% of partial total was awarded by the compensation judge. An appeal to the Morris County Court for a de novo review followed. After careful consideration, findings were made similar to the judgment entered in the Division of Workmen’s Compensation. Petitioner subsequently appealed to the Appellate Division which affirmed the County Court in an unreported per curiam opinion, holding on the basis of Close v. Kordulak Bros., 44 N. J. 589 (1965), that the findings that petitioner was not really unemploj'-able were adequately supported by the record. We granted certification. 63 N. J. 550 (1973). We reverse.
Louis Barbato, 60 years old at the time of the accident, lived all .his life in Madison, New Jersey. While manually jacking up a scaffolding unit, he felt pains in his chest. After a lunch break, he resumed work but during the course of the afternoon, petitioner’s pains increased to the point where he left his work, drove himself home, summoned his doctor and was in turn taken to the hospital where he stayed one month under treatment for a myocardial infarction. He has been under the medical attention of Dr. Donald Kent, a general practitioner who is petitioner’s family doctor. He stated at the trial that he had been treating petitioner since 1948. In 1962, he treated petitioner for a coronary, and since for high blood pressure and diabetes. Petitioner testified that after his 1962 heart attack, he had attempted to find less rigorous employment, but being unsuccessful, he had eventually returned to work as a laborer. Since the present heart attack, Dr. Kent prescribed various medications,
Petitioner visited him on a regular monthly basis. The doctor stated that petitioner’s cardiac condition was moderately severe. He indicated that a patient on digitalis certainly has to be watched, the blood pressure must be monitored, and the blood sugar regulated. Dr. Kent summarized that this condition would remain with petitioner for the duration of his life. He was of the firm opinion that petitioner could not return to his work as a laborer.
Dr. Rowland Goodman, petitioner’s medical expert, testified that he had examined Barbato on August 5, 1970, and reviewed the hospital record which diagnosed petitioner’s condition as “acute myocardial infarction due to arteriosclerotic heart disease.” This meant that there was a narrowing of the aortic valve which produced a murmur, causing the heart to beat more vigorously to push the blood through the narrowed vessels. There was a possible presence of kidney disease diabetes; the electrocardiogram showed premature ventricular beats and a healed anterior wall myocardial infarction and persistent elevation of the ST segment in leads Y-2 through 3. Based on his own evaluation, Dr. Goodman found petitioner to be suffering from an arteriosclerotic heart disease with an enlarged heart, aortic stenosis and severe residuals of the acute myocardial infarction.
Dr. Goodman added that based on petitioner’s subjective complaints to him of his sleeeping discomfiture, a congestive heart failure was indicated and the heart was not pumping adequately. Accordingly, he felt the patient had made a poor recovery, that his disability was 100% of total, and as a result would never be able to return to employment. On cross-examination, however, Dr. Goodman’s diagnosis of the congestive heart failure was somewhat disproven. The hospital record did not indicate any of the symptoms normally associated with congestive cardiac failure.
Dr. Goodman took the other extreme and indicated that he doubted whether petitioner could do any type of work.
Petitioner’s education did not go beyond the 5th grade, and his employment background consisted of landscaping, general laboring and factory work, all involving more or less heavy manual labor. He possessed no general skills. His intellectual capacity was somewhat limited, and although he could read some English, he had definite difficulty reading and writing. He owned his own home in Madison, collected $25 a month as a labor pension, $180 a month from Social Security, and had two adult children living with him, each of whom contributed to the support of the household. Since a partial recovery, petitioner made no effort to secure work, for, as he testified at trial, Dr. Kent told him that he could not work and should remain idle. Petitioner testified that he walks daily and at one point painted the walls and ceiling of a 12 x 14 room. He testified that he had to stop' intermittently to rest, but could paint a wall for an hour at a time, and the ceiling for 15 or 20 minutes without a rest. After doing this, he required two days of bed rest.
Carl E. Nawoj, an assistant professor of Industrial Relations at Rider College and part owner of a personnel service agency who had interviewed Barbato at the request of his counsel, testified for petitioner. Because he found that petitioner lacked command of the English language, required help in filling out his employment application, and had a physical problem with his heart, it was Nawoj’s evaluation that it would be extremely unlikely, if not impossible, for petitioner to secure new employment. Considering the high rate of unemployment, petitioner’s age, background and his
The judge of compensation had difficulty conceptualizing how a person with a 100% disability could paint steadily for an hour. He reasoned that in light of all the medical testimony and from his impression of petitioner’s testimonial candor, demeanor and behavior, there was unnecessary bridling and belligerency which did not inspire a feeling of total candor. He minimized Dr. Goodman’s finding of 100% disability as not based on subjective complaints. He found that there were no symptoms of any congestive heart failure, nor that, medically speaking, petitioner’s disability was total.
As to the “odd-lot” doctrine which defines disability by factors other than purely medical ones, the compensation judge pointed out that petitioner had not looked for work, had not attempted to do so, nor sought the aid of any employment agency. Nawoj’s testimony was discounted because his expertise was restricted to the Trenton area, whereas petitioner resided in Madison where job opportunities may have realistically existed. The compensation judge carefully distinguished the case of Rodriguez v. Michael A. Scatuorchio, Inc., 42 N. J. Super. 341 (App. Div. 1958), certif. den. 23 N. J. 140 (1957) as to petitioner’s age, language, neurological conditions, motivation and education. He noted that petitioner owned his own home, had other sources of income and seemed quite content to spend his remaining days in idleness; therefore he did not apply the “odd-lot” doctrine set forth in Rodriguez and other cases. See infra. Apparently crucial to the determination of the compensation judge was the relation of petitioner’s age to his asserted unemployability. The Judge said: “When age is the most
The County Court Judge deferred considerably to the Compensation Judge in the latter’s assessment of the witness’ credibility and in petitioner’s failure to support objectively the existence of symptoms otherwise indicating congestive heart failure. He agreed substantially with the findings, that medically speaking, the infarction was reasonably healed and that 33 1/3% was a fair quantum in measuring petitioner’s disability. He further concluded that petitioner did not come within the “odd-lot” category and that he was not unemployable. Having reasoned that the purpose behind workmen’s compensation was to impose on industry the responsibility of caring for its disabled employees where the accident caused the disability, citing King v. Western Electric Co., 122 N. J. L. 442 (Sup. Ct. 1939), he found that no causal relationship was present between the injury and the inability to secure employment, nor that the evidence established a degree of obvious physical impairment coupled with the factors of training and age such that it places the claimant prima facie in the “odd-lot” category.
I
Petitioner has raised two issues. The first is whether there was substantial evidence in the record which would justify the denial of a total disability award based solely on medical factors. The second, were the courts below in error by failing to properly apply the “odd-lot” doctrine and hence consider factors other than medical? Petitioner has maintained that at his de novo trial, the County Court did not properly review the findings of the compensation judge.
The scope of our review of workmen’s compensation factual findings where a de novo trial was had, was recently stated in White v. Atlantic City Press, 64 N. J. 128 (1973). We there said that we give great weight to the fact-finder whose decision was reached on sufficient credible evidence. No plain error is alleged, nor that the compensation judge was unreasonable in such a finding. We see no reason to disturb these findings. Solely measured in terms of objective medical criteria, petitioner did not suffer 100% disability.
We think petitioner’s second contention has merit. In failing to give petitioner the benefit of the “odd-lot” doctrine, the compensation judge was in error. The record compels an award of total disability upon the basis of non-medical factors recognized by the law here and elsewhere.
In Zanchi v. S & E Const. Co., 124 N. J. Super. 405 (Cty. Ct. 1971) aff’d on the opinion below 63 N. J. 331 (1973), the facts paralleled closely those in the instant case. A myocardial infarction felled a 60 year old construction laborer. Zanchi, as Barbato, claimed total unemployability both for medical and other reasons. He was still seeing a doctor every two weeks at the time of trial (16 months after the attack). Though American born, Zanchi lived a good portion of his life in Italy. He speaks and reads very little English. Judge Wood said: “he is, to all intents and purposes, functionally illiterate. His educational training is meager, and his employment record indicates only highly strenuous labor of the unskilled variety.” 124 N. J. Super. at 413. Judge Wood was confronted with this issue which we answered in the affirmative: “on the basis of other evidence and its own common knowledge, whether circumstances unrelated to the accident in question, coupled with the disability arising from the accident, rendered petitioner unemployable.” (Zanchi, supra, at 410). The courts below minimized too greatly these “other circumstances and factors” in deciding petitioner’s non-qualification for total benefits. They found petitioner employable despite “due regard for his age, overall physical condition, and the labor market.” Our analysis of these criteria conclusively determines that petitioner was indeed unemployable within the “odd-lot” doctrine.
The odd-lot doctrine was first expounded in Cardiff Corporation v. Hall, 1 K. B. 1009 (1911). In that English case, an employee unable to resume his occupation as a driver because of a work-connected injury applied, without success,
There are cases in which the onus of showing that suitable work can in fact be obtained does fall upon the employer who claims that the incapacity of the workman is only partial. If the accident has left the workman so injured that he is incapable of becoming an ordinary workman of average capacity in any well known branch of the labor market — if in other words the capacities for work left to him fit him only for special uses and do not, so to speak, make his powers of labour a merchantable article in some of the well known lines of the labour market, I think it is incumbent upon the employer to shew that such special employment can in fact be obtained by him. If I might be allowed to use such an undignified phrase, I should say that if the accident leaves the workman’s labour in the position of an “odd-lot” in the labour market, the employer must shew that a customer can be found who will take it . . .” Cardiff Corporation v. Hall, supra, at 1020-1021.
The point of inquiry was whether the accident had produced in the workman some incapacity for work over and beyond his physical disability, personal to himself, which prevented his obtaining employment, such that the employer’s obligation extended to compensation beyond the immediate medical injury. Most courts in this country, however, were then rather slow in adopting this novel approach. This jurisdiction, in fact, only enacted our Workmen’s Compensation Act in the year of the Cardiff decision, L. 1911, c. 95, and in the formative years, application of the laws was strictly construed. See, e. g., Splitdorf Electrical Co. v. King, 90 N. J. L.
He [the plaintiff] was an unskilled or common laborer. He coupled his request for employment with notice that the labor must be light. The applicant imposing such conditions is quickly put aside for more versatile competitors. Business has little patience with the suitor for ease and favor. He is the “odd lot” man, the “nondescript in the labor market”. Work, if he gets it, is likely to he casual and intermittent . . . Rebuff, if suffered, might reasonably be ascribed to the narrow opportunities that await the sick and halt.
Jordan v. Decorative Co., 230 N. Y. 522, 525, 130 N. E. 634, 635-636 (1921).
Justice Francis (then Judge Francis) recognized the effect of the unstable market in fostering total disability in Kalson v. Star Elec. Motor Co., 15 N. J. Super. 565 (Cty. Ct. 1951), aff’d 21 N. J. Super. 15 (App. Div. 1952). A 66-year old worker suffered a compensable knee injury necessitating his getting around with a crutch and cane, and he subsequently petitioned for additional compensation. Evidence was elicited that the leg appearance would interfere with the saleability of whatever labor petitioner offered to an employer, if indeed such a petitioner could pass a pre-employment physical. Hot unless the person to whom he was applying for employment had a charitable inclination, would petitioner be given a job. Judge Francis, citing an earlier decision by Justice Heher in Everhart v. Newark Cleaning & Dyeing Co., 120 N. J. L. 474 (Sup. Ct. 1938), said that “[T]he claimant’s injuries and their consequences must be viewed as a whole. He is to all intents and purposes unemployable . . . His physical infirmities and deficiencies consequent upon the industrial accident render his labor unsaleable to any market accessible to him.” Compensable disability became defined under the Act as the “loss ensuing from personal injury which detracts from the former efficiency of the workman’s body or its members in the ordinary pursuits of life in rela
The “odd-lot” doctrine which viewed the worker in the perspective of the competitive market place was given judicial solidification by Judge Goldmann in Rodriguez v. Michael A. Scatuorchio, Inc., 42 N. J. Super. 341 (App. Div. 1956), certif. den. 23 N. J. 140 (1957). Rodriguez was a 43-year-old garbage and refuse collector who, while emptying a can of garbage into the back of his employer’s truck equipped with a power driven rotator, slipped, and caught his hand in the grinding mechanism, necessitating amputation of his arm six inches below the shoulder joint. Rodriguez, a native of Puerto Rico with limited knowledge of the English language,dropped out of school at 15, never going beyond the third grade. Prior to becoming a garbage collector, he worked as a migrant farmer, blacksmith and carpenter’s helper, as well as other industrial pursuits. He was married and had four children, was hard-working and well adjusted. As a result of the accident and the consequential arm surgery, and the fitting of an artificial arm of which Rodriguez could make but limited use, he became self-conscious, highly nervous and ill-adapted at what had formerly been normal activities. It became difficult for him to care for his own needs; he became socially introverted, lost his confidence, and behaved in a generally restless, unhappy and depressed manner. He could no longer maintain his equilibrium, either psychologically or medically. Rodriguez sought other employment, applying at over 40 different factories of all sorts, but at each approach, he encountered frustration and rejection. All this because of a work-related accident.
Had Rodriguez’ disability been measured solely in medical terms, recovery would have been limited to the nonuse of the arm. The Rodriguez court recognized that the psychoneuro
The viability of the odd-lot doctrine in this State was further evidenced in Lightner v. Cohn, 76 N. J. Super. 461 (App. Div.), certif. den. 38 N. J. 611 (1962). Petitioner’s work-related injury required amputation of three fingers and the phalanx of the thumb, and resulted in the subsequent development of a shoulder pathology and increased neurological impairment. He experienced nervousness, sleepless nights, headaches, and encountered great difficulty upon seeking employment. It was advanced that petitioner was often faced with these kind of comments: “When I go, they look at my hand and turn around and laugh. They say, ‘Man, you are crazy.’” (76 N. J. Super, at 463).
Zanchi held that: “The court itself must decide, on the basis of other evidence and its own common knowledge, whether circumstances unrelated to the accident in question, coupled with the disability arising from the accident, ren
Hence total disability is a combined law and fact question. While we reiterate that we are not disputing the fact findings, we do take issue with the application of the legal criteria to the facts by the tribunals sitting below.
The compensation judge recognized the “odd-lot” doctrine as set forth in Rodriguez but distinguished it from the facts herein. He pointed out that petitioner had not looked for work nor sought the aid of employment agencies. He further dismissed as irrelevant the observations made by Professor Hawoj that there was no permanent-type job for a person like petitioner in the existing market place. This attests to a misunderstanding of the “odd-lot” doctrine. While Rodriguez and Lighiner noted strong disapproval with the employee who malingers and voluntarily withdraws from the labor market, the pivotal feature of the “odd-lot” doctrine is its recognition that the mental status of the aged, ill-prepared and injured employee is significantly affected when for the first time in his life such a person finds himself unable to return to his accustomed work — usually as a manual laborer, as is the ease in the majority of the “odd-lot” situations — and faces an imponderable uncertainty as to his financial affairs and the remainder of his work life.
The day has long since passed when we can remain indifferent to such an employee whose remaining alternative in life is to sit by idly and await arrival of his social security or pension check, feeling worthless and unavailing, knowing that he can no longer meaningfully contribute his employment. In Kalson and other cases, we recognized the difficulty of an aged employee, recuperating from a work-connected injury, to find employment, absent the aid of friends or a “charitable employer.” We cannot ignore the simple fact that most employers will not hire a 61 year old heart attack victim when alternative younger and more attractive and ver
Nor should any undue reliance be placed on petitioner’s supposed lack of motivation in not actively seeking employment, a point alluded to by the compensation judge. We agree with the view expressed in a recent Oregon decision, Deaton v. State Accident Insurance Fund, 509 P. 2d 1215 (Or. App. 1973) :
. . . [W]hen it is apparent from a claimant’s physical condition, plus all the other relevant factors, that he is unable to work at any suitable and gainful employment, motivation is immaterial, because it appears unlikely that even with the best of motivation could he obtain and retain such employment. (509 P. 2d at 1218).
To impose a contrary burden on petitioner would be to render useless the salient features of the “odd-lot” doctrine.
Rodriguez had lost an arm, Lightner had lost three fingers and phalanx of the thumb, and petitioner in Polulich v. J. G. Schmidt Tool Die & Stamping Co., 46 N. J. Super. 135 (Cty. Ct. 1957), had lost four fingers. Id. at 150. Disabilities of these petitioners were apparent. But as stated in Kalson, supra, and recently re-affirmed in Zanchi, a person having suffered a myocardial infarction is equally scarred even though his wounds are internal ones. A petitioner of the latter category has as scanty a chance of passing a preemployment physical as does the former. The employer takes the employee as he finds him, Belth v. Anthony Ferrante & Son, Inc., 47 N. J. 38 (1966), with all of the latter’s un
That petitioners in Rodriguez and Polulich spoke little English is not enough of a factor to distinguish those cases from the instant one. To suppose that the language barrier was the significant element by which those petitioners failed to receive employment and which led to their post-accident psychoneurological traumas is to misstate the obvious. Neither of those claimants, nor petitioner herein, completed even an elementary school education. It was suggested at the compensation hearing in the instant case that petitioner was physically capable of desk or other light work: elevator operator, guard or some such work. We have seen the consequences befalling the other petitioners upon their non-obtaining of any jobs: e: g., where Eodriguez made over 40 applications and Polulich 100. Since it is very rational and likely that human beings act accordingly when they are rejected and shunted, how can we suppose that petitioner here will not undergo the same experience? Certainly, with his education and present condition, he is unqualified for any of the jobs suggested at the compensation hearing. Are we to wait until such time as Barbato too undergoes a behavorial neurosis before we find the petitioner deserving of a disability award? Our scope of judicial review takes into account the plethora of eases and real life factual situations that have passed before this Court over the years. Their value speaks
In conclusion, a person fitting the description of petitioner herein who has no reasonable prospects of selling his services and who has no material earning capacity becomes substantially helpless as a self-sustaining unit of society. Our remedial and beneficent workmen’s compensation laws were expressly designed to obviate society of the charge and welfare of such a person. In this light, we reverse and remand to the compensation division to enter an award in accordance with this opinion.
Justice Jacobs and Judge Collestek join in this opinion.
Pennsylvania, as early as 1932, declared that where the injured worker can perform services specially fitted to his physical condition, the burden shifts to the employer to show that such work is in fact within reach, and absent his proof, the claimant must be compensated as for total disability. See Billante v. Stouffer’s Foods, Inc., 7 Pa. Cmwlth. 532, 300 A. 2d 284, 285 (Pa. Cmwlth. 1973).
Cf. In Petrone v. Moffat Coal Company, 427 Pa. 5, 233 A. 2d 891 (Sup. Ct. 1967), Justice Musmanno in an eloquent opinion questioned :
How does the fact that a person is capable of performing light work guarantee that light work is available.
Suppose that the work the claimant is capable of performing is that of shoveling snow and he lives in Florida, or suppose he is capable of picking cotton and he lives in Maine? If the finding “capacity to perform light work” is to mean anything, there must be some evidence that light work exists. (233 A. 2d at 893).
In Army and Air Farce Exchange Service v. Neuman, 278 F. Supp. 865, 867 (W. D. La. 1967), it was stated:
Perhaps it would not quite be correct to state what the Deputy Commissioner implied, that the burden is on the defendants to demonstrate that as a practical matter claimant can get. a suitable job and is therefore not disabled from earning her living. But as a practical matter such is not far from the true burden defendants should have borne before the Deputy Commissioner. If the claimant had the burden of proof to establish that her employment in a position commensurate with her now lessened abilities was implausible, she would have the burden of proving a negative fact — something the law rarely, if ever, imposes. Should she seek employment for a day to establish the negative fact that she cannot*532 find it? Two days? A week? A month? Clearly, the only meaningful way to position the parties in such a situation would be to require the party of interest to prove the positive fact — to require her employer to prove she could be employed. This her employer failed to do.
See also Brown v. Safeway Stores, Inc., 82 N. M. 424, 438 P. 2d 305 (App. 1970).
Concurring Opinion
Temporarily Assigned (concurring). I concur fully in Point I of the Court’s opinion and in the conclusion of compensability arrived at in Point II.
The principle of compensability under the odd-lot doctrine was firmly embraced by this Court in Zanchi v. S & K Const. Co., 63 N. J. 331 (1973), adopting the findings and conclusions in the well-reasoned opinion of Judge Wood for the Union County Court, reported in 124 N. J. Super. 405 (1971). The Appellate Division had long theretofore held the same view. Rodriquez v. Michael A. Scatuorchio, Inc., 42 N. J. Super. 341 (App. Div. 1956), certif. den. 23 N. J. 140 .(1957); Lightner v. Cohn, 76 N. J. Super. 461 (App. Div. 1962), certif. den. 38 N. J. 611 (1962); and see Quiles v. N. J. Metals Co., 37 N. J. 91, 101 (1962) ; 2 Larson, Workmen’s Compensation (1970) § 57.51, p. 82 et seq.
Thus, the issue here is not the present viability of the odd-lot doctrine but the justification for its rejection as inapplicable in this case by the Judge in Compensation and the county court, and for the determination by the Appellate Division that the finding by those tribunals that petitioner
A review of the reasons for disallowance by the tribunals below of petitioner’s claim of total disability under the odd-lot doctrine suggests that he was barred on two broad grounds. (1) Petitioner’s physical condition and attendant personal circumstances did not equate with a conclusion of unemployability; stress was laid on his not seeking employment; (2) If he was unemployable this was primarily attributable to his age, and in such case compensation does not attach as the act was not “intended to be a pension or retirement plan for older but no longer employed workers” (compensation decision). Both conclusions aré also undergirded by the compensation judge’s impression that petitioner did not “inspire a feeling of total candor”. As to the last factor, in the absence of specific findings as to material operative facts, a generalized trial impression as to credibility of a witness is of slight use to an appellate court. See Congleton v. Pura-Tex Stone Corp., 53 N. J. Super. 282, 286-287 (App. Div. 1958).
On the issue of unemployability in a “reasonably stable [job] market” for such a person as petitioner, see Larson, op. tit., § 57.51, p. 82, we have a 60 year old victim of two coronary attacks, the last one, work-connected, of moderate severity, with a worse-than-average recovery, according to the treating physician. He had not completed the sixth grade and had difficulity reading. His intelligence is “low normal”. His work experience in the past has always involved heavy manual labor. He had no training in any trade. The treating physician had proscribed heavy labor but said petitioner could do “desk work”.
Direct evidence of petitioner’s capacity to find and do work suitable to his condition and abilities on a continuous basis was not presented because petitioner had not tried to find work nor respondent to prove there was work available for such a person. But there was indirect evidence in the testimony of the petitioner’s expert that there was no work
True, petitioner here owned a home, had $200 a month in social security benefits and adult children contributing to the home support. He thus had less motivation to seek work than others less fortunate. This seemed to weigh heavily in the judgment of the compensation judge. However, these facts are irrelevant if, in a case calling for it, the employer has not offered proof that work is available for the workman. The criteria for the odd-lot doctrine are objective, not subjective. See Deaton v. State Accident Insurance Fund, 509 P. 2d 1215, 1218 (Or. App. 1973).
Petitioner’s situation clearly met the criteria for prima facie application of the odd-lot doctrine. His case is hardly distinguishable factually from that of the petitioner in Zanchi, supra, where we held the doctrine controlling under the facts (In fairness to the tribunals below, Zanchi was decided after the Appellate Division decision herein). Each case involves a laborer of about 60 with a substantial cardiac disability and limited education and skills. Zanchi was held an odd-lot case, and a denial of 100% disability was reversed notwithstanding petitioner had not made affirmative efforts to secure employment, the employer not having undertaken to show employment was available for him. The Zanchi precedent calls for the same conclusion here, as do the general views held elsewhere on the subject of burden of proof in this area. See Larson, op. cil., § 57.61, p. 88.13 et seq.; Army and Air Force Exchange Service v. Neuman, 278 F.
There is no tenable basis for the views of the compensation and county courts that because petitioner’s age is the primary cause of his unemployability, the compensation act is not a vehicle for his relief. One may pass the question whether age was a more significant contributor to petitioner’s assumed unemployability than his employment-connected heart condition. It may be noted that were it not for the latter, he would presumably still be working at heavy labor. But of controlling importance is the principle that the employer takes the employee as he finds him, Belth v. Anthony Ferrante & Son, Inc., 47 N. J. 38 (1966), and here he took him at his then age. If the work-connected injury, operating on the whole person, produces total disability (meaning, in the odd-lot area, unemployability) the employer is responsible for the whole result, Ibid., notwithstanding that also contributory to the end result are the petitioner’s other disadvantages, including age. The cases are legion in which the odd-lot doctrine was applied notwithstanding age was a significant factor in the picture of unemployability. Eor present purposes it suffices to cite Zanchi and Lightner v. Cohn, both supra, both involving men in their 60’s.
The determinations of the lower tribunals denying total disability in this case being insupportable on this record either in law or fact, they are properly reversed by the court.
Justice Hall joins in this opinion.
Dissenting Opinion
(dissenting). I would affirm the judgment of the Appellate Division on the ground that there is substantial credible evidence present in the record to support the finding of the County Court that, on the facts, the “odd-lot” doctrine did not apply to petitioner.
Justice Clifford joins in this dissent.
Hall, J., and Conford, Judge, concur in result.
For affirmance—Justices Sullivan and Clifford—2.
Reference
- Full Case Name
- Louis Barbato, Petitioner-Appellant, v. Alsan Masonry & Concrete, Inc., Respondent-Respondent
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