Belth v. Anthony Ferrante & Son, Inc.

• Decision Date: 04 April 1966
• Docket Number: No. A--72,A--72
• Citation: 219 A.2d 168,47 N.J. 38
• Parties: Stanley J. BELTH, Petitioner-Respondent, v. ANTHONY FERRANTE & SON, INC., Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 38

47 N.J. 38

219 A.2d 168

Stanley J. BELTH, Petitioner-Respondent, v. ANTHONY FERRANTE & SON, INC., Defendant-Appellant.

No. A--72.

Supreme Court of New Jersey.

Argued Jan. 11, 1966.

Decided April 4, 1966.

Isidor Kalisch, Newark, for defendant-appellant.

John W. O'Brien, Newark, for petitioner-respondent (O'Brien, Brett & O'Brien, Newark, attorneys).

The opinion of the court was delivered by

FRANCIS, J.

Petitioner, Stanley J. Belth, was awarded workmen's compensation representing 75% Loss of his left leg against the defendant-employer, Anthony Ferrante & Son, Inc. The County Court reduced the award to 10% Loss of the leg for reasons to be discussed hereafter. The Appellate Division reversed and reinstated the original award. 88 N.J.Super. 9, 210 A.2d 430 (App.Div.1965). We granted certification on the employer's petition. 45 N.J. 586, 214 A.2d 26 (1965).

The nature of the case makes necessary an outline of its factual background.

On August 2, 1954, while operating his motorcycle along Route 22 in Somerset County, N.J., Belth was in collision with an automobile. He was taken to the hospital in Bound Brook, N.J. where examination disclosed substantial injuries to his left leg (as well as other injuries which are not material in this case). More specifically he suffered compound, comminuted fractures of the left tibia and fibula. The fracture of the tibia entered the knee joint spaces at several sites. Open reduction operations were necessary; healing was complicated by bone infection. At these operations some portions of broken and diseased bone were removed. Hospitalization continued until April 8, 1955, at which time the fractures were well healed. Belth was readmitted to the hospital on September 27, 1955 with a draining sinus at the site of the open reduction incision. Another operation occurred, the bone underlying the incision was curetted and the affected portion of the bone removed. Discharge followed on December 23, 1955, the diagnosis being osteomyelitis.

Thereafter the leg improved and he went to work as a welder and truck driver for defendant-appellant some time in 1956; the exact date does not appear. At the time of the accidents with which we are concerned, he was working as a dump truck driver.

There is no doubt that the motorcycle accident resulted in some permanent disability of the left leg. It was shorter and weaker than the right leg, and at the conclusion of medical treatment in 1956, there was considerable stiffness in the knee joint. He walked with a limp. It should be noted also, that the accident did not occur during the course of an employment, and consequently no workmen's compensation was ever awarded or paid on account of the injuries.

From the inception of Belth's employment in 1956 until October 22, 1958, he worked steadily and without incident. He limped, but said his leg was 'three-quarters good' and that he had no difficulty doing the work assigned to him. On October 22, 1958 during the course of his work, he slipped while getting on his truck and injured the front midsection of his left leg. He continued work until October 25, 1958 when he fell from a ladder and struck the same area of his left leg on a piece of steel. The leg started to swell and a festering blister developed. The same day he sought treatment from a Dr. Konyha, who referred him to Dr. John Warter. Dr. Warter had him admitted to the Muhlenberg Hospital on October 27, 1958. The diagnosis was acute osteomyelitis of the left tibia in the region of the old fracture. An operation was performed on November 1. The entire middle third of the tibia was exposed by surgical incision, which revealed an infectious area in the bone '(w)hich was full of dirty necrotic granulation tissue and puss. This was thoroughly curetted out. The entire medullary canal of the tibia was then opened up into normal tissue, both proximally and distally and all of the sclerotic bone in the middle section, including the infected area, was removed and all over-hanging lip was thoroughly rongeured off leaving a deep trough from normal bone to normal bone * * * extending through the infected area.' The end result of the operation was to leave the tibia about half its normal thickness. He was discharged from the hospital on November 14, 1958, his condition being described as improved.

Thereafter Dr. Warter treated the leg for about a year and prescribed a leg brace which all the medical evidence indicates he must wear at all times. It consists of a metal rod which is anchored in the heel of Belth's shoe. Two connecting rods extend up above the knee and are there attached to a corset-like affair which is strapped tightly around the thigh. The perpendicular rods have hinges which permit motion at the knee. In describing his present condition Belth said his left ankle is stiff; he has to pick his leg up and 'loosen it' before he starts to walk. He cannot walk any distance without stopping for a rest. He returned to work for Ferrante on April 1, 1959, but was 'laid off.'

Subsequently he did gardening work for about six months without mishap. Then he entered the employ of Thul Machine Works, where on November 10, 1960, while working, a piece of steel material fell on his left ankle. Severe pain and swelling of the leg followed and he was admitted to the Overlook Hospital where the leg was opened again and drained. Discharge took place on November 23, 1960, the final diagnosis being chronic osteomyelitis, left tibia. Belth remained under medical care until March 15, 1961, when he was able to return to work.

Two petitions for workmen's compensation were filed by Belth. One sought an award against Ferrante for the accidents of October 22, 1958 and October 25, 1958; the other asked similar relief against Thul Machine Works, Inc. for the accident of November 10, 1960.

At the hearing all of the medical evidence demonstrated clearly that the 1958 accidents caused a flare-up in the quiescent osteomyelitis which made necessary the operative procedure that followed, including the saucerization of the tibia, and the resulting further weakening of the leg. On the subject of extent of disability one medical witness said that after the two compensable injuries in the Ferrante employment the over-all permanent disability of his left leg was 75%, and after the third injury in the Thul employment, it was 85%. Another such witness put the over-all impairment at 75%, with perhaps 5% Chargeable to the third compensable injury. None of the expert medical witnesses who estimated petitioner's present disability attempted to assess the extent of impairment which followed the motorcycle accident of 1954. They agreed that some permanent loss of use resulted but could not express it in terms of percentage. Defendant produced one physician, Dr. Maxwell Borow, who had given some treatment to Belth in connection with the 1954 injury. This witness, whose father was the treating physician, was admitted to practice medicine in 1954. Apparently he participated in the treatment of Belth but entered military service before the medical attention ended. He said he saw Belth a few times when home on leave and last saw him some time in 1956. He testified that at that time the disability was 65% Loss of the leg; there was extensive muscle weakness and atrophy and almost complete loss of motion in the knee joint; he did not prescribe a leg brace. He never saw Belth thereafter and could not say what improvement had occurred; he expected some improvement in the muscle tone and atrophy, but indicated the diminution in disability could not be substantial. The doctor conceded he had little experience in estimating percentages of disability for workmen's compensation purposes.

In his findings the Judge of Compensation indicated he did not attach much probative value to the doctor's estimate of post-1956 loss of the leg at 65%. He did not find it necessary to determine the extent of that disability, i.e. pre-October 22, 1958, in terms of percentage, because in his view the law required imposition of the compensation liability for the over-all disability (except for the portion attributable to the Thul employment) on Ferrante whose employment produced the two October 1958 accidents. We agree the evidence would not support a finding that the pre-October 1958 disability was 65% Loss of the leg. Aside from the fact that Dr. Borow obviously expected some improvement from further treatment and use of the leg after he last saw Belth, a conclusion that considerable improvement did occur is inescapable. To illustrate, Dr. Borow said there was almost complete loss of motion in the left knee joint in 1956. One of the medical witnesses who examined Belth in 1959, 1960 and 1961, the last time being after the Thul accident, said that flexion at the knee joint was possible to a right angle and extension of the leg was normal. Moreover, according to petitioner's testimony, prior to the 1958 injuries although he had a limp he had no difficulty in working as a dump truck driver. Under the circumstances, if it were necessary to do so, we would fix the pre-October 1958 disability at considerably less than 65% Of the leg. For reasons to be stated, however, we agree with the Compensation Judge that disposition of the case does not require such a determination.

In the Compensation Division the permanent incapacity of the leg from all causes was fixed at 85%. Ten percent was charged to the Thul accident, the remaining 75% Assessed in full against Ferrante. On appeal to the County Court the judge modified the judgment. He concurred in the finding of 85% Loss of petitioner's left leg, and approved the allocation of 10% Thereof against Thul. But he found that prior to the two 1958 Ferrante mishaps Belth had a 65% Permanent loss of the leg due to the noncompensable motorcycle accident. Being of the opinion that liability could not be imposed for the disability Belth brought with him to the...