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Allie v. Barrett & Co.

Decided: April 21, 1961.

ENUS ALLIE, PETITIONER-RESPONDENT,
v.
BARRETT & COMPANY, INC., RESPONDENT-APPELLANT



On appeal from the Workmen's Compensation Division.

Lyons, J.c.c.

Lyons

Petitioner suffered a crushing injury to his left hand when it was drawn into a wringer by reason of the slippage of a clutch. The fact that a compensable accident had occurred was admitted. Permanent disability was awarded for 60% of the hand, in the amount of $5,232.50, and for 5% of total for post-traumatic neurosis, or $962.50. Petitioner's attorneys were awarded counsel fee of $900, payable $500 by respondent and $400 by petitioner.

The amount of counsel fee is the only element of the judgment under attack. Respondent claims that it had made a timely offer in the amount of 50% of the hand, and had therewith tendered payment of $805, representing payment for 23 weeks then due, and that the judge of compensation erred in concluding that the offer was not bona fide and in basing the counsel fee on the total award.

A brief review of events from the date of the accident to the making of the award reveals the following significant factors.

The accident occurred July 20, 1959. Petitioner was under the medical care of respondent from that date until discharge from treatment on November 16. The first three or four days were spent in St. James Hospital, where an operation was performed. He was then sent to N.J. Manufacturers' Hospital where treatment ranged from pills and changes of dressings in the first month to whirlpool and exercise treatment in the final months. The exercises, which included squeezing a ball with the injured hand, brought about no improvement in his condition. He was paid temporary disability for 17 weeks.

Upon discharge from treatment he reported to his employer for work, as he had been directed, but was told that they could not use him at that time because they had no "one-hand work." The employer promised to call him when there was something for him to do. Commencing January 4, 1960 he was put to work with light leather on a table machine, and he would work from one to four hours per day until the work gave out. Though there was other work available, he was unable to do it because it involved the use of both hands. A major problem in the use of the hand lies in the loss of gripping power due to the fact that soft tissue injury prevents him from making a fist. Dr. Willner, petitioner's examining physician, said that all of the fingers missed the palm by two inches, while Dr. Firtel, testifying for respondent, found that the fourth finger was one-quarter inch from the palm and that there was increased restriction in the other fingers.

On January 15, 1960 a claim petition was filed, alleging the hand injury and neurological involvement. Respondent was served on February 10 and filed its answer on February 15. In response to Question 11, "Nature of injury and resultant permanent disability," the respondent answered, "Undetermined in view of 26 week waiting period."

Dr. Firtel examined petitioner on March 21, 1960. He appraised disability at 50% of the hand. There was no proof offered as to when respondent transmitted its request from examination to the doctor. We are left merely with the conclusion of the doctor that it must have been more than a week or two before the date of examination since it usually takes several weeks for him to arrange with a petitioner's attorney to have a claimant come in for examination. It was stipulated that the physician's report was dated March 29 and that it reached the insurance carrier on April 4, 1960.

Sometime between April 8 and 10 petitioner received by way of his employer a "Memorandum of Payment" from the insurance carrier, stating his permanent compensation

to be 50% of the left hand. There was forwarded to his home a check for $805 in payment of 23 weeks of permanent disability then due. On April 12 petitioner's counsel was served with a notice of motion to amend the answer to Question 11 to read: "50% of left hand." Counsel was further notified that "Respondent herein tenders the payment of ...


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