Simpkins v. Martin Dye & Finishing Co.

• Decision Date: 11 February 1944
• Docket Number: C. P. No. 67614.
• Citation: 36 A.2d 611
• Parties: SIMPKINS v. MARTIN DYE & FINISHING CO.
• Court: New Jersey Department of Labor-Workmen's Compensation Bureau

36 A.2d 611

SIMPKINS

v.MARTIN DYE & FINISHING CO.

C. P. No. 67614.

New Jersey Department of Labor-Workmen's Compensation Bureau.

Feb. 11, 1944.

Proceeding under the Workmen's Compensation Act by Harold Simpkins, employee, opposed by Martin Dye & Finishing Company, employer.

Order in accordance with opinion.

Louis H. Roth, and Rothbard, Greenstone & Harris, all of Newark, for petitioner.

Arthur J. Blake, of Jersey City, and John W. Taylor, of Newark, for respondent.

KRAFT, Deputy Commissioner.

A petition was filed in the above-entitled cause seeking compensation under the provisions of the Workmen's Compensation Act of this State, Rev.Statute 34:15-1 et seq., N.J.S.A.; and an answer having been duly filed by the respondent, the matter came on for hearing before me, a Deputy Commissioner of Compensation, at Camden, N. J.

It was stipulated that the petitioner sustained an accident on May 9, 1941, resulting in injuries which arose out of, during and in the course of his employment, and that respondent had due notice and knowledge of the occurrence of said injuries; that respondent paid temporary disability to the petitioner at the rate of $20 per week for a period of 67 3/7 weeks from May 9, 1941, the date of said accident, to Aug. 23, 1942, inclusive.

It was further stipulated that respondent was making payments on account of partial permanent disability to the extent of 80% of total, but that such payments were being made at the compensation rate of $11.29 per week, it being contended by the respondent that this latter amount is the correct compensation rate, and that the respondent is entitled to a credit on the permanent disability payments of the overpayment made on the temporary disability.

It appears that the petitioner was engaged in running cloth through mechanically-operated rollers, and while attempting to straighten out the edges of the cloth, his hands became caught in and both arms were drawn between the rollers. The action of the rollers literally tore the flesh from both arms to a point almost to the shoulders. A long period of hospitalization followed during which extensive skin graftings were performed, but the mangled and destroyed musculature, nerves and tendons could not be replaced, nor their functions restord. The petitioner offered himself as an exhibit. The deformities of both arms, which are practically covered with deep, discolored and adherent scarring, are obvious. There is no serious controversy as to the physical injuries, but only as to the extent of the disability resulting therefrom.

It appears from the medical testimony that the petitioner's right elbow is definitely fixed at about 120 degrees, with no extension or flexion possible; that rotation of his right forearm is only 50% of normal; that he has partial ankylosis of the right index finger and little muscular power in the hand. The extent of function of petitioner's right arm is stated in the report of Dr. Robt. S. Gamon, offered on behalf of the respondent, to be ‘useful in feeding or helping with his clothing’. It also appears from the testimony that petitioner has a flexion deformity of the left elbow, with only 20 degrees range of motion to a right angle, and has only partial movement of wrist and fingers.

The petitioner testified that he can raise his right arm to shoulder height only and his left to a point just above shoulder height; that he cannot undress, tie his shoes or necktie, take a bath or attend to duties of nature without assistance. He further stated he has not much strength in his arms and a little sweeping around the house tires his arms out.

The orthopedic disability was stated to be 80% of total by Dr. Gamon, 75% of total by Dr. Millard F. Sewall, the attending surgeon, both appearing on behalf of the respondent, and 100% by Dr. Henry L. Drezner, appearing on behalf of the petitioner.

The petitioner further testified that his left arm swells and he has not had much feeling in either arm and that they ache and pain; that he is nervous and cannot sleep, and gets frequent headaches. His wife testified that he is restless and irritable, and on many occasions has become so nervous in the middle of the night that he has gone out for walks; that he does not like to meet people, is jealous, swears furiously, kicks at his son, acts over-sexed and sits and talks to himself and at times ‘just sits and grins'.

Dr. Samuel Hirschberg, a neurologist, appearing on behalf of the petitioner, testified that petitioner suffered personality charges, and because of the destruction of nerves of the upper extremities has marked anaesthesia in the right arm and complete anaesthesia in the left arm, and it was his opinion that the petitioner suffered a minimum of 20% partial permanent disability neurologically. It was the opinion of Dr. Jack Blumberg, a neurologist, appearing on behalf of the respondent, that the petitioner suffered 7 1/2% to 10% partial permanent disability by reason of a general hypesthesia on the left side.

It is my conclusion that the disability of the petitioner from the injuries sustained by him as the result of the accident on May 9, 1941, arising out of, during and in the course of his employment with the respondent, and of which the respondent had due knowledge, is total in character and permanent in quality, and that the respondent had actual knowledge of the occurrence of said injuries.

The next question to be determined is the amount of temporary disability to which petitioner is entitled. It was stipulated that such disability payments were made for a period 67 3/7 weeks, from May 9, 1941, to and including Aug. 23, 1942.

The petitioner testified that the scabs of the skin grafting did not heal and he was treated by Dr. Sewall until December, 1942. However, on cross-examination he stated that the last treatment was given him by Dr. Sewall in October, 1942, but that he went back to the doctor afterwards for observation.

The petitioner further testified that in December, 1942, while putting on a sock, his right arm touched the stove in the kitchen of his home and that night when his shirt was taken off, he discovered a burn about the size of a half dollar on the interior surface of his right arm just below the elbow, and that his shirt sleeve was scorched over this spot; that he returned to Dr. Sewall who treated him until February, 1943, for this burn. This incident was corroborated by his wife, who stated she saw the burn, the scorched shirt and that Dr. Sewall treated the burn for about two months.

Dr. Sewall testified that he discharged the petitioner on Aug. 27, 1942, and although he did not have his records in court, remembered that the petitioner returned to him after that date because of abrasions probably occasioned by knocking the scar tissue which had become hardened, and that he may have treated him for that condition. He further testified that he treated the petitioner for a burn on the arm from Jan. 2, 1943, to Jan. 21, 1943, and rendered a bill for $15 for such treatment.

It is my conclusion that the abrading of the scar tissue on the left arm and the burn on the right arm were the result of innocent aggravations of the harmful effects of the original injury and the time required for the healing of the wounds constitutes a period of temporary disability for which petitioner is entitled to compensation. Selak v. Murray Rubber Co., 8 N.J.Misc. 838, 152 A. 78, affirmed 108 N.J.L. 548, 159 A. 93; Flanagan v. Charles E. Green & Son, 121 N.J.L. 327, 2 A.2d 180, affirmed, 122 N.J.L. 424, 5 A.2d 742; Randolph v. E. I. Du Pont De Nemours & Co., 130 N.J.L. 353, 33 A.2d 301. I, therefore, find that petitioner is entitled to temporary disability from May 9, 1941, the date of the accident, to and including Oct. 15, 1942, and from Jan. 2, 1943, to and including Jan. 21, 1943, totalling 77 6/7 weeks.

The remaining question to be determined is the amount of the weekly wage upon which the compensation is to be computed. Rev.Stat. 34:15-37, N.J.S.A. provides:

“Wages', when used in this chapter, shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, and shall not include gratuities received from the employer or others. ...