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Kolonkiewicz v. Ames

Decided: November 21, 1952.

FRANK KOLONKIEWICZ, PETITIONER-APPELLEE,
v.
W. AMES & COMPANY, RESPONDENT-APPELLANT



On appeal from the Department of Labor and Industry, Division of Workmen's Compensation.

Duffy, J.c.c.

Duffy

This is an appeal by respondent from a determination in the Division of Workmen's Compensation wherein an award was made on the basis of total permanent disability. Petitioner has filed a cross-appeal under which he seeks a larger award of temporary disability compensation than that allowed him below.

The record shows that on July 28, 1949, in the course of his work as a welder, some hot metal fell into the shoe of petitioner causing a burn to his left foot. He was then 58 years of age. He was treated at home by Dr. Soloman, a company physician, for about a month. Although he returned to work, he remained under the weekly care of Dr. Soloman for treatment of the burn for the next eight months. On November 6, 1950 his foot again bothered him. He visited the doctor and was found to have a "chronic ulcer" at the site of the burn.

The testimony shows that petitioner had suffered from varicosities of both lower extremities for many years. He stated that in 1944 an operation, consisting of a one-inch cutting, had been performed upon a varicose vein in his right leg. He also admitted that "the veins in both legs were kind of lumpy" prior to the burning episode, but insisted that he was able to ambulate and perform all his usual activities without difficulty.

As a result of the examination and diagnosis by Dr. Soloman, petitioner was admitted to the Medical Center on November 11, 1950. A sapheno-segmental ligation of the left leg was performed to aid the varicosity and a skin graft was applied to the dorsum of the left foot. The skin was obtained from petitioner's left thigh. He was discharged from the hospital December 14, 1950.

Petitioner was re-admitted to the hospital on January 4, 1951 on his complaint that the skin graft was breaking down and his foot was painful. In March a left lumbar sympathectomy was performed to improve the arterial circulation. On May 1, 1951 his left leg was amputated at the

mid-calf. He was discharged from the hospital, August 13, 1951.

Since his release from the hospital petitioner stated that he has been under the care of his own doctors and visiting nurses for alleviation of the pain in the stump and discomfort in his right leg. Early in 1952 he spent two weeks in Bayonne Hospital seeking relief. Although equipped with two crutches, petitioner attributed his inability to ambulate to pain in his right foot which becomes more intense as he proceeds; to a dizziness which recurs while attempting to walk; and to a sense of fear predicated on two falls which he had experienced. He also complained of extreme nervousness, inability to sleep and a general feeling of distress and wretchedness.

Respondent resists the claim mainly on the ground that petitioner's burn condition was completely healed when Dr. Soloman pronounced him cured and discharged him from further treatment on March 28, 1950. It contends that petitioner is personally responsible for any subsequent disability because it flows from his wearing a tight shoe. In support of this position it offers the testimony of Dr. Soloman regarding the November 6, 1950 visit, "Well, the patient told me that he bought a new pair of shoes three weeks ago and had * * *. The new shoe had rubbed on the anterior surface of the left foot and the same previous condition broke down and became infected."

Returning to petitioner's proofs, a number of medical witnesses appeared on his behalf. Dr. Visconti described his findings, based upon two examinations of petitioner, as "an amputation of the left leg below the knee; skin graft of the left mid-thigh; atrophy of the left thigh area; postoperative scar of the left femoral area, the result of ligation of the saphenous veins; and scarring of the left abdominal region, the result of a left lumbar sympathectomy." He also found him to have "a faulty peripheral circulation, not ...


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