STATE OF NEW JERSEY
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
CAMDEN COUNTY DISTRICT
 

CLAIM PETITION
C.P. 95-044118

RESERVED DECISION

CHRISTOPHER CARTER, Petitioner
vs.
HEINZ BAKERY, Respondent

BEFORE:
HONORABLE SHELLEY B. LASHMAN
Judge of Compensation

APPEARANCES:

IRA F. BACK, ESQ.
Attorney for the Petitioner

FREEMAN, BARTON & HUBER, ESQS.
By: WILLIAM T. FREEMAN, ESQ.
Attorney for the Respondent

* * *

PROCEDURAL HISTORY

A claim petition was filed by the petitioner in this matter on November 28, 1995, alleging an accident arising out of and in the course of his employment on October 4, 1995. The claim petition alleges petitioner was a forklift driver for respondent, and that a wooden skid fell on petitioner's right foot. The claim petition states that the injury was reported to Randy Spahn on October 9, 1995, and to Steve Collins on October 16, 1995. The claim petition alleges fractures to the first and third toes on the right foot, and complications arising from diabetes.

On October 22, 1995, the respondent filed an answer generally denying the allegations contained in the claim petition.

On January 25, 1996 a Notice of Motion for temporary disability benefits and medical benefits was filed pursuant to N.J.A.C. 12:235-5.2. An answer to the Motion for temporary disability was filed by the respondent on February 13, 1996, stating that the petitioner was not entitled to temporary disability benefits. Respondent left the petitioner to his proofs on the happening of the compensable accident.

On September 12, 1996, petitioner was killed by a non-work-related gunshot wound of the femoral artery of the left leg from which he bled to death. On February 24, 1998, the matter was formally pretried. Trial commenced with the testimony of Monique Essex Carter on April 28, 1998. She was the widow of the petitioner, having separated November 1991, some four years prior to the alleged accident. Trial continued with the testimony of Frank Jordan, respondent's Northeast regional safety manager; and Randy Spahn, respondent's plant manager, both on June 10, 1998. Dr. Sidney Tobias testified for petitioner on November 30, 1998; and Dr. Kenneth Peacock testified for respondent on February 1, 1999.

STATEMENT OF FACTS

P-1 in evidence, the "incident investigation report" of Randy Spahn states: "Date of injury: 10/4/95 Date reported: 10/16/95 . . . ." Under describe in detail how the accident occurred, it stated: "Chris alleges as per our phone conversation on 10/16/95 he was picking up skids in the freezer and two were frozen together and the one fell across his toes."

Monique Essex Carter testified that she married the petitioner on May 7, 1983. In November of 1991, Mrs. Carter and the petitioner separated. According to Mrs. Carter, divorce proceedings were instituted, but never completed. Therefore, they were married on the date of petitioner's death. According to Mrs. Carter, a Pennsylvania support Order was entered against the petitioner for $107 per week for their two daughters.

Mrs. Carter stated that she was married to the petitioner not even a year when he developed diabetes. He was hospitalized for this condition at the Germantown Hospital in Philadelphia.

Petitioner was treated by a podiatrist prior to the alleged compensable accident, due to his diabetes. P-2D in evidence, the podiatrist's treating records, indicate petitioner was an insulin-dependent diabetic since 1984. On cross-examination, Mrs. Carter was asked whether the petitioner suffered from ulcerations or open sores on either of his feet prior to the alleged compensable loss.

The following exchange occurred:

Question. Prior to the October 4, 1995 alleged date of loss, do you know whether your husband suffered from any ulcerations, or open sores, on either of his feet?

Answer. No.

Question. Are you telling me that you are unaware of it, or you were certain that he did not?

Answer. He never mentioned it to me that there was any, but I don't think there was because he would have told me. I always asked him how he was doing with his diabetes.

Question. Did he ever attempt, to your knowledge of course, did he attempt to hide things from you in terms of the severity of his diabetes?

Answer. No.

 

 

Mrs. Carter was also asked whether the petitioner ever used any type of shoe insert or orthotic prior to October of 1995. Mrs. Carter stated that the petitioner did not.

Mrs. Carter testified the petitioner was in contact with her often. She stated that he was in contact maybe three or four times per week, that there was no fixed visitation, rather the petitioner came back whenever he wanted. On cross-examination, Mrs. Carter reiterated her contention that they were in contact often, and that she was kept abreast of the petitioner's diabetic condition.

The office notes of the Family Foot and Ankle Center of South Jersey (Drs. Bruce J. Folbaum and Thomas G. Guglielmo), dated June 10, 1993 through September 1996 (P-2 in evidence) state that the petitioner was provided with orthotics by his previous podiatrist. The treating note dated June 10, 1993 the first visit of petitioner to Family Foot and Ankle, stated that the doctor made a recommendation that the petitioner wear his orthotic every day, and that he control his blood sugar.

The next treating note dated June 30, 1994, stated that Mr. Carter developed a diabetic ulceration on the distal aspect of his left great toe. The July 29, 1994 treating note from Dr. Hall, states the petitioner underwent an operation at JFK Hospital on August 10, 1994. The note states the petitioner returned to the office for suture removal and post-operative care, following the surgery to the left great toe. The sutures were removed that day. On August 24, 1994, petitioner was instructed to conduct warm saline soaks every day. The note states that a new infection process was identified. Petitioner was followed for his infection through October 27, 1994.

On September 12, 1995, approximately three weeks prior to the alleged accident, petitioner presented to his podiatrist a chief complaint of redness and swelling to the right hallux [the great toe]. The note states that the condition had been present for a couple of days and the blood sugars had been elevated. The physical examination revealed a partially avulsed [the ripping or tearing away of a part] right hallux nail with the subungual debris present, and hyperkeratosis [overgrowth of the corneous layer of the skin] around the borders. The petitioner's right great toenail was removed. Petitioner was instructed to return in three weeks or sooner if any problems develop.

Frank Jordan and Randy Spahn testified on behalf of the respondent. Frank Jordan was employed with the Heinz Bakery as the Northeast regional safety manager. Randy Spahn is employed at the Heinz Bakery facility as the plant manager. Mr. Jordan testified that he was with Mr. Spahn when the petitioner requested some vacation time because he had to go to the doctor, and he thought that he would be out of work for a couple of days. Petitioner stated to them that he needed the time off so that he could have some work done on his foot. According to Mr. Jordan, petitioner stated that the problem with his foot was not work related.

Mr. Spahn testified that he spoke with the petitioner and the petitioner stated that he needed some vacation time. This occurred on or about October 5, 1995. Mr. Spahn asked the petitioner why he needed the vacation and according to Mr. Spahn the petitioner stated: "To be honest, my foot has been bothering me. I would like to get it checked out. I really do not want to lose any money, times are tough." Mr. Spahn asked what the problem was, and according to Mr. Spahn the petitioner stated that his diabetes was acting up, and he would like to go get it checked out. Mr. Spahn asked the petitioner directly, he so testified, was it in any way work-related, and the petitioner stated that it was not. According to Mr. Spahn, the petitioner responded: "I have a funny feeling he is going to put me in the hospital for a couple of days."

P-3 in evidence, the Kennedy Memorial Hospital admission record of October 12, 1995, seven days post-accident, has a diagnosis of "cellulitis [a spreading inflammation of the subcutaneous tissues and sometimes muscle] of the right foot. Diabetic ulceration right foot." The discharge diagnosis was: "resolving diabetic ulceration, Grade 2, status post-incision and drainage. Rule out osteomyelitis [inflammation of bone caused by a pyogenic organism]. Fracture of proximal phalanx of great toe, right foot." The past medical history in that exhibit states: "The patient is type 1 diabetic times 14 years . . . since age 19 . . . He is hypertensive with borderline glaucoma and suffers from diabetic neuropathy.

Most significantly, under history of present illness, the Kennedy Hospital discharge summary dated October 25, 1995 states:

The patient states that he cut his big toe with a wooden skid at work between the first and second digits of the right foot. The patient states he had excruciating pain for about three days which diminished to very mild discomfort. The patient states the right foot became red, hot and swollen the Friday following the injury. Patient states he has had fever, chills and nausea for several days prior to admission to the hospital . . . .

P-2D in evidence, the Family Foot and Ankle Center of South Jersey, under date of October 9, 1995 (four days post-accident) reads:

Chris presents to the office today as an emergency for evaluation of an injury he sustained while at work to his right foot. Chris had a skid drop on his foot last Wednesday. He has a small laceration between the great toe and the second toe . . . .

 

 

P-5 in evidence, the Kennedy Hospital discharge summary of November 21, 1995 states under history of present illness:

Mr. Carter is a 36-year-old diabetic who is hypertensive who approximately one month ago had a wooden skid fall on his right foot at work. He was initially treated with antibiotics and subsequently developed cellulitis. He was also noted to have a fracture of the proximal and distal phalanges of the first toe . . . .

 

 

P-6 in evidence, the discharge summary of the West Jersey Health Systems, Voorhees, under history of present illness states: "The patient relates having a work-related injury in 10/95 where a pallet fell on his right foot . . . ."

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. As to the issue of fact of the happening of a compensable accident on October 4, 1995, my decision turns on the credibility of the various witnesses.

I found the widow, Monique Essex Carter, to be not credible because: 1) She testified that he developed diabetes not even one year after they were married contrasted with the Kennedy Hospital record of October 12, 1995 that petitioner was a 14-year diabetic since age 19, which would be seven years prior to their marriage. 2) She testified that he wore orthotics never, contrasted with the Family Foot and Ankle treating record on the first visit of June 10, 1993 which stated that petitioner was provided with orthotics by his previous podiatrist and that the treating doctor on June 10, 1993 recommended petitioner wear his orthotic every day. 3) She testified that he had no ulcerations of his foot prior to the October 4, 1995 date of the accident, whereas the treating notes of Family Foot and Ankle reported ulcerations on June 30, 1994, on the distal aspect of his left great toe and that on July 29, 1994 the treating note indicates petitioner underwent an operation at JFK Hospital on August 10, 1994 two months pre-accident for removal of the nail of the left great toe.

I found Randy Spahn not credible because he testified to a conversation in his office with petitioner on October 19, 1994 in which the petitioner claimed the injury was not work related, whereas the petitioner was actually hospitalized from October 12, 1994 through October 25, 1994, and therefore that personal conversation in his office could not have occurred.

I personally found Randy Jordan not credible although somewhat smug and very sure of himself, I doubt seriously that the petitioner told Mr. Jordan that the injury was not work related.

I found Dr. Tobias extremely credible and accepted his careful explanation of diabetes and the fact that fractures of the foot are at high risk with diabetics who also suffer from diabetic neuropathy, which is an inability to feel any sensation in the foot in the advanced stages of the disease.

By contrast I found Dr. Peacock less credible because his testimony was based principally on supposition, possibilities, rather than reasonable medical probabilities. He testified that diabetic neuropathy was "possible" in prior years and that Dr. Peacock rendered a dissertation on Charcot's foot in which a fracture is not felt which diagnosis I found totally unrelated to the present case.

II. The question of law involved in this case is considerably more significant than the questions of fact.

The respondent's brief relies on two cases Andricsak v. National Fireproofing, National Fireproofing Corporation, 3 N.J. 466 (1950) and on Helminsky v. Ford Motor Co., 111 N.J.L. 369 (1933), to the effect that a decision at law cannot be based solely on hearsay testimony for an award of compensation. Respondent argues in its brief that there is no direct testimony of the petitioner regarding the happening of the accident and the cause of it, and all evidence regarding that is hearsay evidence which cannot form the basis of an award of Workers' Compensation.

However, petitioner's brief points out that on July 1, 1993, the Supreme Court of New Jersey adopted new rules of evidence. Included was rule 804. Hearsay exceptions: Declarant unavailable:

(b) hearsay exceptions . . . The following are not excluded by the hearsay rule if the declarant is unavailable as a witness. (6) Trustworthy statements by deceased declarants. In a civil proceeding, a statement made by a person unavailable as a witness because of his death if the statement was made in good faith upon his personal knowledge and circumstances indicating that it is trustworthy.

In petitioner's brief it is pointed out that in admitting such statements, the Court must determine that the declarant is deceased, and that when the statement was made the deceased declarant had personal knowledge of the matter stated. The Court must determine that the statement was made in good faith, and that the circumstances indicate a probability that the statement is trustworthy, citing 2C New Jersey practice 842. I find as a matter of fact and of law that a statement made by an injured person to his treating physician and to the hospital to which he was admitted for treatment, are made for the purpose of curing the patient and have an extremely high probability of truth in that the patient, in seeking treatment and hospital admission within a few days of the alleged accident, is attempting to have the condition cured, and is not normally at that time considering the consequences of a Workers' Compensation action. I find that those histories in P-3 in evidence, P-2D in evidence, P-5 in evidence and P-6 in evidence, are consistent and uniformly express the happening and date of the accident, and the nature of the injury.

Under Gunter v. Fischer Scientific American, 193 N.J. Super. 688 (App. Div. 1989), and under Aladits v. Simmons Co., 47 N.J. 115 (1966), I am required to permit otherwise inadmissible evidence to be introduced at the time of the Workers' Compensation trial, based on the fact that this is an Administrative Tribunal not subject to the Rules of Evidence of the Superior Court. However, I am not permitted to make findings of fact based on inadmissible evidence. As the statute states:

At such hearing evidence, exclusive of ex parte affidavits, may be produced by both parties, but the official conducting the hearing shall not be bound by the rules of evidence.

N.J.S.A. 34:15-56. Rules of evidence

However, based on Rule of Evidence number 804, as revised in 1993, I am going to rely on the hearsay evidence of the petitioner to his treating doctors and hospitals as to the manner in which the accident happened, as fact, although it is hearsay evidence under our ordinary rules. The purpose of the 1993 revision of the Hearsay Evidence Rule was to expand admissible evidence, not to limit it.

Accordingly, I find that the petitioner suffered a compensable accident on October 4, 1995 of which the respondent had due and timely notice and knowledge. The wage has been stipulated at $396 per week giving rise to a temporary disability rate of $277.20.

There is a State temporary disability benefit lien from October 9, 1995 through March 31, 1996 totaling $7,882.80. Accordingly, temporary disability is awarded during that period at petitioner's temporary rate of $277.20.

As to permanency. Under our law as promulgated by our Courts I am not compelled to accept the percentages of disability attributed by the experts on either side. This is confirmed by Lightner v. Cohn, 76 N.J. Super. 461 (App. Div. 1962). Based upon the demonstrable objective medical evidence in the treating and hospital records admitted into evidence, together with the demonstrable objective medical findings of actual disability in the testimony of both Dr. Tobias on behalf of petitioner and of Dr. Peacock on behalf of respondent (regardless of Dr. Peacock's questioning of causation), I find that petitioner has suffered permanent partial disability orthopedic in nature of 100% for the removal of the right great toe which equates in 1994 to 40 weeks for a total of $4,920; together with 100% for the removal of the right second toe, orthopedic in nature, which equates to 15 weeks for a total $1,845.

Petitioner's attorney shall submit an appropriate Judgement for my signature, earliest practicable, to include temporary disability as above, permanent disability as above, and unpaid medical expenses submitted in evidence, together with counsel fee and costs. The stenographic fee for the four days of hearings is $1,000 to State Shorthand Reporting Service all payable by respondent.

____________________________________

Shelley B. Lashman
Judge of Compensation

July 29, 1999