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Schmidt v. Revolvator Co.

Decided: August 26, 1957.


On appeal from the Department of Labor and Industry.

Nimmo, J.c.c.


[46 NJSuper Page 233] This is an appeal from the Division of Workmen's Compensation. On October 8, 1954 the petitioner

sustained an injury arising out of and during the course of his employment with the respondent. The injury resulted when a piece of steel chipped off a chisel, with which the petitioner was cutting sheet metal, and became imbedded in his left forearm. The respondent immediately directed the petitioner to a doctor for medical treatment. The doctor washed and sutured the wound, evidently unaware that the piece of chisel was imbedded beneath the visible opening of the wound. He took no X-rays. Four days later the petitioner returned to the same doctor who merely treated the wound and applied a fresh dressing. Three days subsequent, the petitioner returned to this doctor complaining of pain and discoloration in the area of the wound. The doctor again merely put a fresh dressing over the wound and discharged the petitioner. The petitioner returned to his place of employment and notified one of the owners that he was going to his own doctor. He proceeded to the office of Dr. Allan Klein. Dr. Klein took a history of the petitioner's accident and treatment by the previous doctor. The history indicated that the petitioner was experiencing a numbness and tingling sensation in the area of the wound extending down into the wrist, thumb, index and middle fingers. Dr. Klein X-rayed the petitioner's left arm, and ordered him to a hospital where, on the same evening, he removed the steel fragment by surgical intervention and the use of an electromagnet.

Dr. Klein's bill, including post-operative care and treatment, totalled $125.

The petitioner initiated a claim against the first doctor alleging malpractice. This claim was settled, without the necessity of instituting suit, for $2,000. The record indicates that from this $2,000 counsel fees and costs in the sum of $800 were deducted, leaving the petitioner the sum of $1,200.

Subsequent to the malpractice settlement the petitioner's claim against the respondent for workmen's compensation was heard. The petitioner testified to the occurrence of the injury, the alleged malpractice of the respondent's doctor, the operation and treatment by Dr. Klein, and his present

subjective complaints of numbness and tingling. Dr. Klein testified that he operated upon and treated the petitioner for the chisel injury and that as a result of the injury and operation, and based on the petitioner's subjective complaints, the petitioner is suffering from a permanent disability. Medically, this disability is the result of nerve severance by the initial injury and to a small degree the operation itself. Dr. Klein also testified that when he examined the petitioner on the day of the operation the wound was infected.

Dr. Visconti, an examining physician, testified to an examination on June 19, 1956. His diagnosis was residual fibrosis with some neuromuscular reference involving some nerve filaments in the area of the scar. His estimate of permanent disability was 12 1/2% of the left hand.

The respondent's only witness was Dr. Henry Klaus. He testified that he examined the petitioner on January 10, 1956 and estimated his permanent disability at 3% of the left hand.

At the conclusion of the hearing the deputy director awarded to the petitioner three weeks of temporary disability, or $90, and 7 1/2% permanent disability of the left hand, or $517.50. In addition, he found that the petitioner had incurred a medical expense of $125 properly chargeable to the respondent. The total award to the petitioner was therefore $732.50. The deputy director then found that the malpractitioner was a "third party" within the meaning and contemplation of N.J.S.A. 34:15-40. He thereupon dismissed the petition on the ground that the entire compensation obligation of the respondent was extinguished because the settlement proceeds to the petitioner from the malpractice claim were much greater than the compensation award. The petitioner appeals from this finding. The respondent contends that it should be credited for the full amount of the compensation award.

This court will review only those issues specifically raised and submitted by the parties, Fink v. City of Paterson , 44 N.J. Super. 129, 139 (App. Div. 1957). The only question so ...

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