Permanent Total Disability

Total disability is defined by Section 36 of the Statute as a physical or neuropsychiatric total permanent impairment caused by a compensable accident or compensable occupational disease, where no fundamental or marked improvement in such condition can be reasonably expected. In this context of permanent total disability, we are talking about a worker who is unable to compete in an active labor market. In all probability, he would be entitled to Social Security disability benefits although the criteria for an award of total disability, under New Jersey Workers’ Compensation, is not the same.
Under Section 36 where the Court is considering total disability, it can consider, age, education, training and work experience but the objective physical and neuropsychiatric impairments must constitute at least 75% of the total disability. This is a codification of the pre-1980 concept of a total disability based upon an “Odd Lot Doctrine” but with a difference. Germain V. Cool Rite, 70 N.J. 1355 A. 2nd 742 (1976) and Lawicki v. N.J. Art Foundry , 88 N.J. 75, 438 A.2nd 5544 (1981). Under cases prior to the amendments in the Act, total disability could be established if there was a demonstration of environmental factors such as age, education, etc., along with the physical effects of the injury. There was no allocation between work injuries and other factors. For example, the work connected injury may be relatively minimal and not of itself sufficient to constitute total disability. The disability, for example, could have a rating in the neighborhood of 15% to 20% of partial total, yet, when taken in conjunction with the petitioner’s age, training, and other environmental factors, the petitioner would qualify for total disability under the so called Odd Lot Doctrine.
Under the amendments to the Act of January, 1980 the Odd Lot Doctrine can only be applied when a petitioner is at least 75% partially totally disabled as a consequence of his work related injury and is unemployable in a reasonably stable job market due to the combination of the job related medical condition and the pre-existing personal handicaps due to lack of education and lack of non-manual work skills. Padilla v. Concord Plastics, Inc. 221 N.J. Super 301, 534 A.2nd 428 (App. Div. 1987).