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There are few appellate division cases on the odd-lot doctrine in workers’ compensation, and there are next to none on lack of proficiency in English as a sole factor for odd-lot unemployability. For this reason it is worth reviewing the recent decision in Avendano v. Target Corporation, A-1609-18T2 (App. Div. December 17, 2019).
In this case, Avendano suffered serious injuries. She received an award of 55% permanent partial disability credit 15% for previous loss of function and then reopened the case to obtain an award of 75% credit 55%. About six months later she reopened the case a second time claiming that she was totally and permanently disabled under the odd-lot doctrine in part because she struggled with the English language and therefore could not find work. The odd-lot doctrine may permit a judge to find total and permanent disability where an employee obtains an award of permanent partial disability of 75% or more but is unemployable due to factors like advanced age, language difficulties and limited job skills.
The trial consisted of testimony by petitioner as well as testimony by vocational experts on both sides, but there was no medical testimony for reasons not made entirely clear in the decision. Petitioner stressed on direct examination that she does not speak or understand English. She testified through an interpreter. She said that it is very hard for her to read or write English. She did admit on direct examination that she enrolled in college to learn English but stated that she did not complete the course.
The cross examination of petitioner won the case for Target. Petitioner admitted that she told the IME doctors for Target that she had attained a level two proficiency in English as a second language classes. She admitted that she was evaluated by the Target IME doctors without a Spanish interpreter. She admitted that she passed the citizenship test in English test nine years prior to her testimony. She also admitted receiving an accounting degree in her native Columbia before coming to the United States.
The Judge of Compensation observed that petitioner answered some questions before the court interpreter finished translation. The Judge of Compensation did not find petitioner to be credible in her assertion that her lack of knowledge of English contributed to her total and permanent disability. The judge was also unimpressed with petitioner’s vocational expert because the expert would not change his position on totality even when confronted with evidence that petitioner obtained an intermediate proficiency level in English. The judge noted as well that the petitioner’s vocational expert failed to review petitioner’s testimony before testifying in court and failed to review certain medical reports.
For these reasons the Judge of Compensation rejected the application for total and permanent disability and left the award at 75%. Avendano appealed, and the Appellate Division affirmed. “In determining whether a petitioner is totally disabled under the odd-lot doctrine a judge of compensation may therefore consider the petitioner’s education, training, age, background and substantial ‘unlikelihood of finding employment, absent a charitable employer.’” The court elaborated on the aspect of difficulty with the English language as a basis for application of the odd-lot doctrine. “Relevant here, inability to understand the English language can provide the basis for application of the odd-lot doctrine.”
The case is worthy of review because the decision recognizes that inability to understand the English language can provide the basis for an award of total and permanent disability where the injured worker has an award of 75% or higher. This may be the only modern appellate level case that has specifically focused on lack of proficiency in English as a basis for the odd-lot doctrine. Unfortunately for petitioner, her testimony did not persuade the judge that she actually had a serious problem understanding the English language given the admissions she made on cross examination.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at firstname.lastname@example.org.