Price, Gaulkin and Sullivan. The opinion of the court was delivered by Gaulkin, J.A.D. Sullivan, J.A.D. (dissenting).
Petitioner Clinton Dixon obtained a workmen's compensation award, which was affirmed by the County Court. The employer appeals.
Petitioner was employed by the respondent as a helper on trucks delivering coal, and for general work in respondent's coal yard. Part of his duties included the loading of trucks. This (his brief says and respondent denies) was done "by standing in the body of the truck next to the bin overhead where the coal was stored, and then pulling the lever which would release the coal through a chute some 10 or 12 feet above the floor of the truck * * *"
Stated succinctly, petitioner's claim is that he developed an "incipient" ingrown toenail on the large toe of the left foot some time in January 1958; coal from the chute struck the "soft" toe of his work shoe (an alleged sample of his shoe was introduced in evidence); this exerted pressure on the toenail sufficient to cause the nail to make a microscopic puncture in the skin of "the nail groove * * * of the great toe"; staphylococcus entered through the puncture, causing infection; this in turn caused gangrene, which necessitated amputation of the leg in November 1958. The employer, on the other hand, contends that there was no such "accident" or injury, and that the gangrene was merely the end result of petitioner's admittedly far advanced arteriosclerosis.
The petitioner described the manner in which he claimed the coal struck his foot as follows:
"Q. Well, do you stand on any part of the truck when you pull the lever? A. You stand in the truck body.
Q. That is lower than if you were standing on the edge of the truck? A. Yes, way lower.
Q. Now, you say that the chute opening was about four feet over your head. Is that right? A. Yes.
Q. The chute opening. A. Yes, where the coal came out of the wall.
Q. And do you stand under the chute? A. Oh, no. Oh, no. I don't stand under the chute.
Q. The coal does not come down and hit you on the head, does it? A. No, sir.
Q. It doesn't hit you on the face? A. No.
Q. It doesn't hit you on the shoulders? A. Sometimes.
Q. On the shoulders? A. Sometimes, yes.
Q. On your arms? A. Oh, yes, sometimes.
Q. On your chest? A. No, it don't come there.
Q. On your back? A. No. You pull like that. It comes down, bounces all over your arm, down on your feet.
Q. Ever hit the back of your feet? A. No. It hit the front.
Q. Ever hit the front of the right foot? A. It hit both of them, but this is the nearest one to it. I am left-handed. When I stand, I have to stand to that side. It goes right down on my foot.
Q. Ever hit your left shoulder? A. Oh, yes.
Q. How long would it take to load a truck from the chute? A. Well, according how much you are going to put in the truck.
Q. Well, how much do you usually put in it? A. Some four tons, three tons.
Q. How long would it take to load four tons from the chute? A. I can load it in about six or seven minutes.
Q. Six or seven minutes? A. That's right. That is four tons."
The employer's witnesses testified that one who opened the chute would not and could not stand in the bed of the truck, for he would then be unable to reach the chute; he would have to stand on the side wall of the truck, and there he would not be struck by coal.
The largest size coal loaded was "stove," but petitioner admits that smaller sizes were handled. The employer's office manager, Miss Walley, testified that most of the coal was "nut." We examined the shoe which petitioner introduced in evidence. Petitioner doubtless wore socks as well, especially since the accident allegedly happened in January. Obviously very little of the coal which came from the chute could have struck petitioner's shoe. We found it difficult
to comprehend how coal, falling as described by petitioner, could have delivered a blow or exerted pressure through the shoe and the sock sufficiently strong to force the toenail into the skin and cause a puncture. However, since the Division and the County Court had ruled in favor of petitioner, we examined and re-examined the evidence with great care to determine whether any reasonable basis for affirming existed. We find that, even after giving due regard to all of the consequences flowing from the fact that the Deputy saw and heard the witnesses, we are unable to accept petitioner's uncorroborated testimony that he suffered the "accident" which he described. We find further that, even if the coal did strike his foot, it was not the cause of the gangrene or of the amputation.
Petitioner testified that he first felt pain when coal fell on his shoe in January 1958. He asserted that he had loaded coal in the same fashion for 15 years without pain. It is the employer's position that if contact of coal with the shoe did then cause pain it was because Dixon's toe had become sensitive due to the advance of his arteriosclerosis, and the pain was not indicative of a substantial blow or pressure. Respondent's doctors described the possible pain from peripheral arteriosclerosis as exquisite and excruciating.
Petitioner admits that he continued to work without seeking medical attention until February 21. There is no testimony that during that period he did anything to protect his feet from falling coal, or to change his shoes. On February 21 he went to Dr. Davis, a chiropodist. He claimed that before he went to Dr. Davis he told Miss Walley that he "had to go to the doctor because my toe was sore from the coal falling on it." Petitioner admitted that he mentioned this to Miss Walley only once. There is no evidence that petitioner ever asked the employer for treatment before he went to Doctors Davis, Zingler or Greenfield, or that he asked to be given other duties or to be otherwise protected from the falling coal.
Miss Walley denied he ever said anything to her about falling coal. She testified that "He came in one morning * * * he just mentioned that he had an ingrown toenail and it was giving him a lot of trouble and he thought he was going to go to the doctor about it." She testified that on a later date petitioner "said that he had been to the doctor and that the doctor removed his toenail and it was giving him a great deal of pain, and he also mentioned that he was not going back to that doctor, he was going to some other doctor." This, as we shall see, coincides with an important part of Dr. Davis' testimony. Dr. Davis testified for petitioner.
Petitioner testified that when he "first felt pain" he looked at his toe and saw it was "bruised," and "that's why I went to the doctor with it." However, Dr. Davis' testimony was to the contrary. The doctor was emphatic that Dixon complained "he had an ingrown nail." Referring to his record, Dr. Davis testified:
"Q. In answer to this question 'Nature of complaint' there is something in quotes that I can't make out. What is that? A. That says ingrown nail. It is in quotes simply because it is what he said. This is what the patient said. This was not my finding."
Dr. Davis himself diagnosed it as "a condition that was approaching the point where it would become an ingrown toenail." He said "The ingrown nail itself would be constituted by having the nail penetrate the flesh. In this case the nail had not penetrated the flesh. It was more or less pressure along the nail groove * * *" (Emphasis added.) To relieve this pressure he "packed" the nail. The packing, he said, "acts as a slide, the nail sliding over the packing," to prevent its penetrating the flesh.
On the two occasions Dr. Davis saw Dixon (February 21 and 24) he saw no infection and only a "very slight redness," but more pain than he expected from the "incipient" ingrown nail. Petitioner's own Dr. Greenfield admitted the redness could have been caused by the arteriosclerosis. Dr.
Davis' observation of unusual pain in the absence of infection supported the opinion of the employer's medical experts that petitioner's condition was due to the arteriosclerosis.
However, Dr. Davis claimed he remembered (although it was not noted in his records) that Dixon told him "this pressure * * * [along the nail groove] was due to the fact that coal was beating down on his toe." He added "This may have been. I cannot attest to that. But it is the same picture that you would get from having the nail pressed along the nail groove." It is difficult to determine just what Dr. Davis meant by that. He could not have meant the temporary pressure of the coal caused the permanent pressure which he saw, and which he relieved by packing. At most, it would appear he meant that an object falling on the toe would momentarily exert the same pressure that the nail was constantly exerting when he saw it on the 21st. In any event it is, to say the least, odd that the doctor would note in his records the petitioner's own diagnosis of "ingrown toenail" -- a diagnosis with which he did not agree and which could be of no aid or importance to him in his treatment -- and yet would fail to note, if Dixon had said it, that "this pressure * * * was due to the fact that coal was beating down on his toe." Furthermore, taken literally, this was a medical judgment which Dixon could not have uttered, since he was not competent to form it. On the other hand, if it was a conclusion that Davis had formed on the basis of a history given him by Dixon, why was there not that history, or at least some reference to falling coal, in the doctor's record? More important, why is it that he did not direct Dixon to avoid falling coal, or to protect his toe from it with heavier shoes or socks, or by bandaging or otherwise? Admittedly, he gave no such instructions, even though he gave Dixon specific instructions to avoid coal dust. For example, he told him to wear "an extra pair of socks, if necessary, to keep the dust away from the skin." The witnesses Wade and McIntyre, representatives
of the employer's insurance company, testified that, when they interviewed Dr. Davis, he gave them no history of falling coal.
Petitioner testified his toe still pained him after Dr. Davis' treatments but that he continued to work with the coal hitting his feet as before until "March or April" when the company went out of business. Respondent's proofs were that petitioner's employment ended February 28. Whatever the period of employment, not only was there no ...