Kalson v. Star Elec. Motor Co.

• Decision Date: 05 October 1951
• Citation: 15 N.J.Super. 565,83 A.2d 656
• Parties: KALSON v. STAR ELECTRIC MOTOR CO.
• Court: New Jersey County Court

Page 565

15 N.J.Super. 565

83 A.2d 656

KALSON v. STAR ELECTRIC MOTOR CO.

Essex County Court Law Division, New Jersey.

Oct. 5, 1951.

Joseph A. Fuerstman, Newark, for petitioner-appellant.

Roger F. Lancaster, Newark, for respondent-appellee.

FRANCIS, J.C.C.

Appellant was allowed compensation for 50 per cent of total permanent disability by the Workmen's Compensation Division. He has appealed on the ground that the award should have been for total permanent disability.

The parties agree that Kalson suffered a compensable injury to his left knee on June 6, 1945 and that on June 30, 1947 he was granted compensation at $20 per week for 53 1/7 weeks temporary disability, 75 per cent loss of the injured leg, and 5 per cent of total permanent disability on account of a neurosis.

The present petition was filed on July 12, 1950 and by it Kalson seeks further compensation on a claim that his disability has increased since the previous award.

Petitioner, who was 71 years of age at the time of the hearing testified that the condition of his knee is now much worse than it was at the time of the original proceeding and that it is getting worse all the time. It does not bother him if he sits or stands still, but any time he moves it he has extreme pain; if he steps on any thing uneven or twists it in any way he gets 'terrible, extreme pain' in the knee and leg. He wakes up a number of times at night with the pain. He was able to do some odd jobs, such as painting and carpentry, around the house in 1947 but now is unable to do so. Such extreme pain was suffered on undertaking to use a hammer or saw or paint brush that he had to give it up. Even when he undertakes to get up from a sitting position and every time he moves his foot he has severe pain.

The record discloses that with the consent of the parties, the deputy director selected a disinterested physician to examine Kalson and report his findings to him. This physician, Dr. Max Singer, was called as an independent medical witness. His examination took place on February 12, 1951, less than two months before the hearing. At this time petitioner was walking with a partially bent left knee and supported by a crutch and a cane. The doctor noticed that in standing unaided full weight was not put on the left foot. The knee showed a 2 1/2 inch operative scar; the joint was markedly enlarged due to bony thickening of the articular surfaces and the presence of fluid therein. The joint was held in 30-degree flexion and further extension was painful and resisted. In the doctor's opinion total loss of the leg was present and 'in addition there is a serious question of how the painful swelling of the left knee affects his capacity to carry on employment of any kind or work of any kind, unless he has a position which does not involve the use of this leg.' Also the doctor thought 'he would not pass a physical examination for employment unless the person to whom he is applying for employment has a charitable inclination.'

On further questioning Dr. Singer said that if he were doing some kind of work in a sitting position but during which he had to get up from time to time he would suffer pain, 'but while in the sitting position and resting his left leg and knee, I think he could work with his hands and mind, but if it required any ambulation, I don't think he could go around at all, even with his crutch and cane.' And then:

'Q. In other words doctor, any kind of work requiring movement would not be practical from the standpoint of industrial employment? A. That's right, requiring ambulation.'

Dr. Singer felt that an operation should be performed on the knee to eliminate the synovial membrane and long spurs which are the principal factors in producing the pain. If the condition remained the same after the medical treatment there would exist total loss of the leg and 'additional total disability due to his loss of proper walking.' The disability is placed in terms of total 'because of the fact that he is unable to carry on the function of ambulation.' However, petitioner would not consent to an operation, apparently because of his unfavorable experience with the earlier operation to which he did submit.

Respondent called Dr. Baxter L. Clement who had more actual experience with the injury than ony of the other medical witnesses. He examined and treated Kalson for a considerable period of time following the accident on June 6, 1945.

Dr. Clement's language in discussing the case is most expresive: '* * * This is an unusual case. Dr. --- operated on this man and the cartilage was removed. Following the surgery he had a rather terrific reaction and that's when I came into the picture. * * * Over the period of years there has been a marked progression of the destruction of that joint. X-rays taken by me in September of 1950 revealed almost complete obliteration of the joint of the femur and tibia--practically disappeared. It is rather unfortunate that the doctor didn't know that this man was that type of arthritic or he probably never would have operated on him to begin with. I noticed here on the stand something that I never noticed before and that has to do with his hands. I think in all probability he has two types of arthritis. I think he has hypertrophic osteoarthritis as Dr. Singer stated, but I never saw osteoarthritis destroy a joint the way it has been destroyed here, so there must be a rheumetoid arthritic condition too--a general rheumatoid arthritic condition. It is just one of those unfortunate conditions.'

Dr. Clement's last examination of the knee was on September 19, 1950 and the condition was worse than it was following his original treatment and discharge, the increase in disability being due to 'the destruction and instability of the joint that has been progressive in nature.'

While the doctor estimated the disability on direct examination at 75 per cent loss of the leg, on cross-examination on being asked whether he knew of any type of work petitioner could do, he said he had heard Dr. Singer's testimony and he was in agreement with it. At first he suggested that Kalson could operate an elevator, but when it was indicated that such an operator would have to get up from his sitting position when persons got on or off, he conceded such work was impossible unless the sitting position remained uninterrupted. Then he admitted that the disability went beyond the leg and said that if petitioner 'could go to the Otis Elevator people and they were charitably inclined, there are probably any number of things they could give him to do and that he could do well.' But if he had to compete for employment on the basis of a pre-employment examination, he couldn't do it.

Petitioner called one other medical witness, an orthopedic specialist, Dr. William B. Ein. This doctor examined Kalson on numerous occasions in 1945 and 1946 and more recently on June 13, 1950, and 'on numerous occasions' was 'in conference with the Court.' His last examination showed substantially the same condition as described by Drs. Singer and Clement and he found through X-ray examination that the osteoarthritic condition had advanced considerably over what it was when his last X-rays were taken on October 13, 1945. Also this last examination revealed atrophy of the leg above and below the knee and that all motions of the hip cause pain referred to the knee. In March, 1947, his estimate of disability was 75 per cent loss of the leg. Now the impairment is 100 per cent and the petitioner is not industrially employable 'because he is unable to get around without the use of a crutch or cane.' However, if there were a job available where he would work using his hands and sitting down, such work could be done.

At the close of the hearing the deputy director stated that on the basis of the testimony 'together with the various conferences we have had in chambers in connection with the present physical condition of petitioner * * *' he found that Kalson was not totally disabled due to the accident. He expressed the view also that Kalson was employable but not able to take every kind of work. And he found also that a condition existed which antedated the accident and which was 'disabling to a certain extent.' Therefore he awarded compensation for 50 per cent of total permanent disability subject to credit for the amount already paid under the previous award.

In the consideration of this appeal certain preliminary observations seem necessary. As indicated, the deputy director seems to have made his determination in part on the basis of various conferences held in chambers. There is no doubt that these conferences were held in the utmost good faith, with the consent of all parties and with the benign motive of working out some solution of the controversy. However, the disclosures and the discussions at those conferences were not made part of the record, nor, with the exception of a colloquy about an offer of operation by respondent and a refusal thereof by petitioner, is there any statement by the deputy director as to the nature of the conferences. Therefore, while the County Court gives due consideration to the opportunity of the deputy director to see and hear the various witnesses and to judge of their credibility, it is impossible to attach any weight whatever to the possibility or even probability that disclosures at the conferences influenced his judgment. The cause must be determined solely on the record presented here. Cf. Callen v. Gill, 7 N.J. 312, 81 A.2d 495 (1951).

With respect to the finding that petitioner had a preexisting 'condition which was disabling to a certain extent' it is noted that the certain extent is not stated in terms of percentage of disability. Nor does there appear to be in the record any basis for an admeasurement of such preexisting disability. The record fails to disclose that the petitioner was not a regular and steady worker before his 1945 accident. There is...