On appeal from the Workmen's Compensation Division of the Department of Labor and Industry.
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 anything 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 two and one-half-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 any of the other
medical witnesses. He examined and treated Kalson for a considerable period of time following ...