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Belth v. Ferrante

Decided: May 24, 1965.


Conford, Kilkenny and Lewis. The opinion of the court was delivered by Lewis, J.A.D.


The question presented here is whether an employer is excused from liability in workmen's compensation for that portion of the permanent partial disability of the knee and leg of an employee following a work-connected accident which can be shown to be attributable to a noncompensable previous accident to that leg. Our decision is in the negative. The pertinent facts in the case are as follows.

In 1954 petitioner, while riding a motorcycle, collided with an automobile, resulting in a permanent injury to his left leg. This accident did not arise out of any employment. The medical evidence indicates that he suffered from a comminuted compound fracture of the left tibia and fibula which required three surgical operations. The residual effects were deformity, shortening of the leg and an almost complete loss of motion of the knee joint.

In 1956 petitioner, although physically handicapped, was employed as a welder and truck driver by respondent Anthony Ferrante & Son, Inc. and/or Somerset Crushed Stone, Inc. (herein Ferrante). His work was steady and without incident until October 22, 1958, when he suffered a compensable injury which occurred when he fell from a "muddy ladder" onto the running board of his employer's truck. The mishap forced a piece of metal to pierce the mid-section of his left foreleg. He received no medical attention on that occasion.

A few days later, on October 25, 1958, while at work for the same employer, petitioner again slipped and fell from the identical ladder upon a piece of steel, and injured the same area of his left leg causing it to swell, blister and fester. He immediately contacted his doctor and was referred by him to an orthopedic specialist who, in turn, had him admitted to the Muhlenberg Hospital on October 27, 1958. The diagnosis was

osteomyelitis of the left tibia. A "saucerization" operation was performed, during which the bone was found to be full of "dirty necrotic granulation tissue & pus." The entire area of the wound was curetted, leaving a saucer-like indentation in the bone. That operation left the tibia "1/2 its normal thickness" and "a hole" in the leg that was not there before. The treating physician prescribed a brace which petitioner is required to wear at all times. He returned to work on April 1, 1959, but was "laid off."

Subsequently, petitioner found employment with the Middlesex Gardening Center where he worked about six months, and thereafter he obtained a job with Thul Machine Works. On November 10, 1960, while employed by the latter company, he sustained his fourth injury to the left lower extremity when a piece of steel material fell across his left ankle producing "severe pain and swelling of the [left] leg." He was treated at the Overlook Hospital, where an operative procedure was necessitated. The medical diagnosis was (1) sequelae of chronic osteomyelitis of the left tibia and fibula, and (2) residuals of contusion of a previously infected leg, with a flare-up of activity.

A separate claim petition was filed with the Workmen's Compensation Division for each of the last three accidental episodes. With consent of counsel, they were consolidated for purposes of trial inasmuch as the respective injuries involved the same anatomical area and the same insurance carrier appeared and defended for all of the named employers.

On the basis of the proofs the judge of compensation found that after all of the accidents and operations mentioned above, petitioner had a permanent partial disability of the left leg to the extent of 85%. Of this amount he held 10% was attributable to the 1960 Thul accident, and an award of compensation to that extent was entered against the Thul company. Compensation for the remaining 75% of disability was entered in favor of petitioner against Ferrante, the judge rejecting Ferrante's contention that it should not be held liable for that part of the disability attributable to the original

motorcycle accident in 1954. The judge found it unnecessary to determine the quantum of disability allocable to the original accident.

The Union County Court agreed with the 85% over-all disability figure and the 10% award against Thul, but disagreed with the award of 75% against Ferrante, finding that prior to the Ferrante injuries petitioner's leg had been 65% disabled as the result of the noncompensable injury, and ...

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