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Belth v. Ferrante

Decided: April 4, 1966.


For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Francis, J.


Petitioner, Stanley J. Belth, was awarded workmen's compensation representing 75% loss of his left leg against the defendant-employer, Anthony Ferrante & Son, Inc. The County Court reduced the award to 10% loss of the leg for reasons to be discussed hereafter. The Appellate Division reversed and reinstated the original award. 88 N.J. Super. 9 (App. Div. 1965). We granted certification on the employer's petition. 45 N.J. 586 (1965).

The nature of the case makes necessary an outline of its factual background.

On August 2, 1954, while operating his motorcycle along Route 22 in Somerset County, N.J., Belth was in collision with an automobile. He was taken to the hospital in Bound Brook, N.J. where examination disclosed substantial injuries to his left leg (as well as other injuries which are not material

in this case). More specifically he suffered compound, comminuted fractures of the left tibia and fibula. The fracture of the tibia entered the knee joint spaces at several sites. Open reduction operations were necessary; healing was complicated by bone infection. At these operations some portions of broken and diseased bone were removed. Hospitalization continued until April 8, 1955, at which time the fractures were well healed. Belth was readmitted to the hospital on September 27, 1955 with a draining sinus at the site of the open reduction incision. Another operation occurred, the bone underlying the incision was curetted and the affected portion of the bone removed. Discharge followed on December 23, 1955, the diagnosis being osteomyelitis.

Thereafter the leg improved and he went to work as a welder and truck driver for defendant-appellant some time in 1956; the exact date does not appear. At the time of the accidents with which we are concerned, he was working as a dump truck driver.

There is no doubt that the motorcycle accident resulted in some permanent disability of the left leg. It was shorter and weaker than the right leg, and at the conclusion of medical treatment in 1956, there was considerable stiffness in the knee joint. He walked with a limp. It should be noted also, that the accident did not occur during the course of an employment, and consequently no workmen's compensation was ever awarded or paid on account of the injuries.

From the inception of Belth's employment in 1956 until October 22, 1958, he worked steadily and without incident. He limped, but said his leg was "three-quarters good" and that he had no difficulty doing the work assigned to him. On October 22, 1958 during the course of his work, he slipped while getting on his truck and injured the front midsection of his left leg. He continued work until October 25, 1958 when he fell from a ladder and struck the same area of his left leg on a piece of steel. The leg started to swell and a festering blister developed. The same day he sought treatment from a Dr. Konyha, who referred him to Dr. John Warter. Dr. Warter

had him admitted to the Muhlenberg Hospital on October 27, 1958. The diagnosis was acute osteomyelitis of the left tibia in the region of the old fracture. An operation was performed on November 1. The entire middle third of the tibia was exposed by surgical incision, which revealed an infectious area in the bone "[w]hich was full of dirty necrotic granulation tissue and puss. This was thoroughly curretted out. The entire medullary canal of the tibia was then opened up into normal tissue, both proximally and distally and all of the sclerotic bone in the middle section, including the infected area, was removed and all overhanging lip was thoroughly rongoured off leaving a deep trough from normal bone to normal bone * * * extending through the infected area." The end result of the operation was to leave the tibia about half its normal thickness. He was discharged from the hospital on November 14, 1958, his condition being described as improved.

Thereafter Dr. Warter treated the leg for about a year and prescribed a leg brace which all the medical evidence indicates he must wear at all times. It consists of a metal rod which is anchored in the heel of Belth's shoe. Two connecting rods extend up above the knee and are there attached to a corset-like affair which is strapped tightly around the thigh. The perpendicular rods have hinges which permit motion at the knee. In describing his present condition Belth said his left ankle is stiff; he has to pick his leg up and "loosen it" before he starts to walk. He cannot walk any distance without stopping for a rest. He returned to work for Ferrante on April 1, 1959, but was "laid off."

Subsequently he did gardening work for about six months without mishap. Then he entered the employ of Thul Machine Works, where on November 10, 1960, while working, a piece of steel material fell on his left ankle. Severe pain and swelling of the leg followed and he was admitted to the Overlook Hospital where the leg was opened again and drained. Discharge took place on November 23, 1960, the final diagnosis being chronic osteomyelitis, left tibia. Belth

remained under medical care until March 15, 1961, when he was able ...

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