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Amey v. Friendly Ice Cream Shop

Decided As Amended April 10 1989.: February 24, 1989.

RONALD C. AMEY, JR., PETITIONER-APPELLANT,
v.
FRIENDLY ICE CREAM SHOP, RESPONDENT-RESPONDENT



On appeal from State of New Jersey, Department of Labor, Division of Workers' Compensation, Camden District Office.

Deighan and D'Annunzio. The opinion of the court was delivered by Deighan, J.A.D.

Deighan

Petitioner Ronald C. Amey, Jr. appeals from an order entered by the Workers' Compensation Court denying him medical and temporary as well as permanent benefits for a re-injury of the flexor tendon of his right hand on January 21, 1986.

It was stipulated that petitioner sustained a compensable injury to his right hand on December 14th, 1985 while in the course of his employment with respondent Friendly Ice Cream Shop. As a result, he came under the care of Dr. A. Lee Osterman, M.D., at the Hospital of the University of Pennsylvania. On December 20, 1985, Dr. Osterman performed a surgical repair of the flexor tendon of petitioner's right hand. On January 21, 1986, before petitioner had returned to work and before he had been discharged by Dr. Osterman, petitioner re-injured his right hand while working on his car at home. The injury involved a re-rupture of the previously repaired tendon. Dr. Osterman repaired the ruptured tendon, but petitioner lost additional time from work.

Respondent concedes that it is responsible for temporary disability benefits and for the payment of medical bills up to January 20, 1986 but denies liability for any temporary or permanent disability or medical treatment after that date. The Workers' Compensation Court was presented with the issue as to whether the injury of January 21, 1986 was a direct result of the original injury of December 14, 1985, in which case respondent would be responsible for those medical expenses, temporary disability and permanent disability resulting therefrom, or whether the chain of causation from the injury of December 14,

1985 had been broken by the intervening accident, in which case respondent would not be liable.

It was stipulated that all other issues, including rates of compensation, amounts of medical bills, amounts of temporary and permanent partial disability, be held in abeyance pending resolution of the basic issue of liability for the December 14, 1985 injury.

Following the operative procedure performed by Dr. Osterman on December 20, 1985, petitioner was instructed to continue to see Dr. Osterman for follow-up care and was also directed to undergo physical therapy. Dr. Osterman gave petitioner specific instructions on care for the injured hand, and cautioned him on the use of his hand.

The deposition of Dr. Osterman was taken de bene esse. He testified that, under the operative procedure and mobilization technique which he followed, activity was recommended, but there could be a rupture or re-injury rate of 10 to 15 percent. Dr. Osterman cautioned petitioner concerning limitations of his activities. He was directed: (1) to keep his splint on and not remove it; (2) not to lift things; (3) not to make a full fist, and (4) not to squeeze his fist.

Dr. Osterman testified that petitioner had been cautioned to follow these strict directions. According to Dr. Osterman he discussed with petitioner the percentage of cases of this type which rupture and the need to follow the strict protocol if he was to get a good result. In addition, Dr. Osterman testified that petitioner's activity on January 21, 1986 was the immediate cause of the rupture.

Dr. A. Gregory McClure testified on behalf of respondent. He concurred with the opinion of Dr. Osterman that the petitioner's activity was directly related to the re-rupture of the tendon. He also testified that 85% to 90% of hands repaired using this procedure do not rupture. As to the 10% to 15% which do rupture, he stated that it was ...


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