A petitioner in a workers’ compensation case who argued for total disability under New Jersey’s odd-lot doctrine, lost when the judge found that both her and her expert witness to not be credible. On appeal, the Appellate Division affirmed the decision out of deference to the workers’ compensation judge.
In this case, the petitioner, Floralba Avendano (Floralba), injured her back while unloading merchandise for her employer, Target. Floralba was fifty years old at the time, and was originally from Colombia. She initially settled for 55% partial total disability but was awarded 75% partial total disability in a second settlement after receiving surgery. Six months after the second settlement, Floralba attempted to modify the agreement again to receive total disability pursuant to the odd-lot doctrine. The odd-lot doctrine holds that a person may be deemed totally disabled based on additional, non-medical considerations such as education, training, language barrier, etc. Floralba argued that her limited fluency in English, job skills, and age qualified her as totally disabled under the odd-lot doctrine. She also presented a vocational expert to testify on her behalf. Target, meanwhile, presented a vocational expert to rebut Floralba’s claim.
The compensation judge, however, ruled against Floralba after declaring that she and her expert were not credible witnesses. Floralba used a Spanish-English to interpret for her on the stand and stated that she did not speak or understand English, and that it was very difficult for her to read or write in English. On cross-examination, however, Floralba admitted to attaining a level-two proficiency in English in an English as a Second Language class, and that she did not need an interpreter when she was evaluated by Target’s doctor. In addition, she had passed a citizenship test, which was in English, nine years prior to the hearing. The judge held that Floralba was being deceptive regarding her English abilities, and therefore held that she was not a credible witness.
Regarding Floralba’s vocational expert, the judge found that his general unpreparedness, lack of familiarity with the record, and his refusal to change his opinion upon learning that Floralba had achieved a second-level proficiency in English undermined his credibility. In contrast, the judge stated that Target’s witness had been prepared, thorough, and articulate and that this testimony proved that Floralba could attain employment elsewhere. This defeated her claim for total disability based on the odd-lot doctrine.
Floralba appealed this decision, arguing that the judge should not have dismissed the odd-lot doctrine claim. The Appellate Court, giving substantial deference to the workers’ compensation judge, held that the judge had properly assessed the witness credibility issues and dismissed the case on those findings. The Appellate Court also rejected Floralba’s argument that she should have been able to present medical testimony. The court found that both parties agreed that the hearing would be solely about the odd-lot doctrine, which considers non-medical criteria. Based on this, the Appellate Court affirmed the dismissal of Floralba’s case.
If you have any questions about New Jersey workers’ compensation benefits, feel free to contact Ward, Shindle & Hall for legal advice.
