NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1609-18T2 FLORALBA AVENDANO, Petitioner-Appellant, v. TARGET CORPORATION,1 Respondent-Respondent. Submitted December 3, 2019 – Decided December 17, 2019 Before Judges Gilson and Rose. On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2006-15760. John E. Biggiani, Rothenberg, Rubenstein, Berliner & Shinrod, LLC, and The Blanco Law Firm, LLC, attorneys for appellant (Richard B. Rubenstein and Pablo N. Blanco, of counsel and on the brief; John E. Biggiani, on the brief). 1 Improperly pled as Target Stores. Worthington & Worthington LLC, attorneys for respondent Target Corporation (Francis W. Worthington, on the brief). PER CURIAM Floralba Avendano appeals a Division of Workers' Compensation order, dismissing her claim of total disability under the odd-lot doctrine. We affirm. While employed for Target Corporation in 2006, Avendano, then fifty - one years old, injured her lower back while unloading merchandise in the company's North Bergen store. Avendano initially settled her workers' compensation claim for 55% of partial total disability, with a credit to Target of 15% for prior functional loss. Following "significant" surgery and treatment, petitioner's claim was reopened and her award was modified by agreement to 75% of partial total disability, with a credit to the employer of 55% for the prior award. Six months later – in the absence of "any additional authorized treatment" – Avendano sought a modification of her second settlement award, claiming she was totally disabled pursuant to the odd-lot doctrine. For the first time, Avendano claimed she was "unemployable given her medical disabilities and injuries, limited English, limited job skills and her age." Unable to settle her claim, the matter was tried before the workers' compensation judge. During the A-1609-18T2 2 three-day trial, Avendano testified on her own behalf and presented the testimony of her vocational expert; Target presented the competing testimony of its vocational expert. Utilizing a Spanish-English interpreter, Avendano stated she does not speak or understand English, and it is "very difficult" for her to read and write the language. Although she enrolled in a community college to learn English, Avendano claimed she did not complete the course. But on cross-examination, Avendano acknowledged she disclosed to evaluating doctors that she had "attained a [l]evel [two] proficiency" in her English as a Second Language class; was evaluated by Target's doctor without utilizing an interpreter; and passed the citizenship test – which she had taken in English – nine years prior. Avendano also testified she had received an accounting degree at an unspecified university in Colombia before immigrating to the United States. In assessing Avendano's credibility, the judge cited the discrepancies in her testimony, and noted her observations of Avendano ...
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