DECISION

 BEFORE:

                                                 HONORABLE ANTHONY J. MINNITI
                                                Judge of Compensation

 APPEARANCES:

                                                 SIMON, SARVER & ROSENBERG, ESQS.
                                                By:            GREGORY M. JACHTS, ESQ.
                                                Attorney for the Petitioner

                                                HOWARD W. CRUSEY, JR., ESQS.
                                                By:            FRANK R. ALANSKY, ESQ.
                                                Attorney for the Respondent

 This is the decision under Claim Petition 98-023968, Joseph Forte v. F & J Movers, Inc.  This was a denied accident.  The matter was tried on the issue of compensability.  The parties have also agreed to submit on medical reports thereby waiving cross-examination of the respective physicians. 

Consequently, the issues presented in this case are:  1) Did the accident arise out of and in the course of petitioner’s employment and, if so, 2) what, if any, is the extent of permanent disability.

Petitioner testified that on May 5, 1998 he was working for Joseph Cucuzza of F & J Moving Company.  His job was to go on moving assignments, work around the store and repair vehicles.  He had been working for the respondent full time for three and a half years. 

On the day in question he arrived at the respondent’s premises at 8:00 in the morning and punched in.  Thereafter, he followed his usual procedure by checking the truck for tools and blankets.  Although he does not recall which truck, as he opened the passenger door to check for tools, weights fell out and struck him in the foot and consequently shattered the bone.  He reported this injury to two coworkers and then crossed the street to tell Joe Cucuzza ,his boss. The coworker drove him home.

  Sometime later he approached Mr. Cucuzza about going to a doctor.  Mr.  Cucuzza stated that he should go see “his doctor” who was Dr. Steffanelli.  Mr. Forte followed that advice but Dr. Steffanelli was not in on that particular day so he saw Dr. Wujack, an associate.  Dr. Wujack saw petitioner three times and kept him out of work.  Petitioner applied for New Jersey State Disability Benefits.  Petitioner stated Dr. Wujack instructed him to stay out six to eight weeks.  However, petitioner chose to return after five weeks.  He no longer works for the respondent.  He presently works for a small factory. 

With respect to his present complaints, he stated that in the winter it is a constant throb, which he described as like a little pinching.  He experiences pain in the entire toe, which radiates up to the ankle.  He said that this accident has caused him to experience a lessening of his ability to run and jog.  He also feels pressure when he is required to squat at work.  Primarily, his main concern was cold weather. 

The respondent produced Joe Cucuzza, who owns the moving business with his daughter.  He  recalls the events of May 5, 1998 involving Joseph Forte.  He stated that Mr. Forte bought weights from a customer, which he was not supposed to do and at the end of the day he went to the truck to get those weights and put them in his car when a weight fell on his foot. Mr. Cucuzza saw Mr. Forte sometime later and suggested that he go to Dr. Steffanelli because Dr. Steffanelli was a friend and whatever his bill was, Mr. Cucuzza would pay it.  On cross-examination he conceded that he did not actually see the incident but relied on the petitioner’s account.  He also conceded that there are other materials inside of a normal truck such as work tools, blankets and things of that nature.  Mr. Cucuzza apparently had no firsthand knowledge of the incident or the time that it occurred except to state that it was sometime in the afternoon.  He also stated that these weights were purchased by the petitioner from one of the jobsites. 

With respect to the medical treatment,  a bill was produced by Dr. Wujack and sent through Dr. Steffanelli.  Mr. Cucuzza stated that Dr. Steffanelli took care of the bill.

It appears that there is a dispute over whether the accident occurred at the very beginning of the day after petitioner had punched in or at the end of the day as recalled by Mr. Cucuzza.  Nevertheless, the parties concede that the petitioner was struck in the foot by a weight, which belonged to the petitioner and was kept in respondent’s vehicle. 

There is no question that the petitioner had arrived on respondent’s premises that day and was operating in the course of his normal employment.  The first issue then is did this injury occur out of and in the course of petitioner’s employment with respondent. 

To be compensable under the Workers’ Compensation Act, an accident must arise out of and in the course of employment.  N.J.S.A. 34:15-7.  The phrase “arising out of employment” refers to the causal origin of an accident and the phrase “in the course of employment” refers to the time, place and circumstances of the accident in relation to the employment.  Coleman v. Cycle Transformer Corp., 105 N.J. 285, 288 (1986).  To be found to have arisen out of the employment the risk of an accident must be of such a nature that it might have been contemplated by a reasonable person when entering the employment, as incidental to [that employment].  Id. at 289.  “A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service.”  Id..  Applying this basic test, the Supreme Court has identified three categories of risk which may result in an accident arising out of an employment:  risks “distinctly associated” with the employment, such as an employee’s fingers getting caught in a machine; “neutral” risks, such as an employee getting struck by lightning while on the job; and risks that are “personal” to an employee, such as a non-work related heart attack suffered while on the job.  See id. at 290-92.  The court has described “personal risks” as including those which arise from the personal proclivities of the employee and that consequently have a “minimal connection to the employment.”  Id. at 292.  Accidents resulting from risks which are “distinctly associated” with the employment or “neutral” are compensable, but accidents resulting from “personal risks” are non-compensable.  Id. at 291-92. 

It has been held, therefore, that the self-infliction of the fatal wound resulted from a risk that was “personal” to a petitioner.  Money v. Coin Depot Corp., 299 N.J. Super. 434 (App. Div. 1997).  There is a line of cases which distinguish the circumstances of an intentional act from those that are considered “horseplay.”  See MacKenzie v. Brixite Mfg. Co., 34 N.J. 1 (1961); Diaz v. Newark Ind. Spraying, Inc., 35 N.J. 588, (1961) .  In Diaz, the Court held that although the employer was not aware of particular activities by the employee, the court held accidents to be compensable adopting the view that accidents resulting from horseplay on the job may be found to arise out of the employment so long as the “deviation” from the normal course of the employment “can be considered minor.”  Diaz v. Newark Ind. Spraying, 35 N.J. 588, 591 (1961).

In the instant case,  whether or not the weights were purchased the night before and left in the truck or at the end of the day , constitutes only a minor deviation from petitioner’s employment.  It certainly was not an intentional affliction of an injury.  And the accident could easily have occurred whether they were petitioner’s weights or the weights purchased by a coworker.  I find therefore that the petitioner’s injury did arise out of and in the course of his employment with the respondent.

The next issue presented is the nature and the extent of any permanent disability.  On that issue the parties have submitted medical reports.  It should also be noted that at a subsequent session, medicals were submitted and wages and rates were stipulated.  Wages were $400 per week giving rise to a temporary disability rate of $280 per week.  It was also stipulated that there were five weeks of missed time and there was only one outstanding bill to Dr. Wujack in the amount of $340. 

I have reviewed the medical reports submitted.

Petitioner submitted the two-page report of Dr. Earl Shah dated July 2, 1999 and the respondent has submitted the one-page report of Dr. Richard M. Liss dated September 13, 2000.

At the outset, it should be noted that both doctors ascribe a degree of disability to this injury.  Dr. Liss suggests that Mr. Forte suffered a contusion, fracture and subungual hematoma of his left great toe.  He finds that petitioner is not a complainer.  And what little he suggests by way of residual symptoms is consistent with the injuries sustained.  Therefore, he suggests 15% disability of the left great toe.  Dr. Shah takes a history of left-foot pain, throbbing and swelling, limiting sports activities with increased sensitivity.  He also had reviewed the records of Dr. Wujack noted a comminuted fracture of the left great toe with a hematoma.  His diagnosis, however, was residuals and contusions and strains to the left foot and ankle with a fracture of the toe with diffuse ankle and great toe synovitis.  He suggested a disability of 40% of the statutory left foot.

There is no question after reviewing the doctors’ reports that the petitioner has met his burden of proof under both Perez v. Pantasote, Inc, 95 N.J. 105 (1984). and Colon v. Consolidated Transport, 141 N.J. 1 (1995).  I note that each of the medical reports is written with an adversarial perspective.  The court is not bound by any or all of the medical reports submitted.  See Lightner v. Cohn, .76 N.J .Super 461, cert.denied.,35 N.J. 611.

In the instant case, I found the petitioner to be very credible.  As indicated earlier I find that the injury did result out of an accident that arose out of and in the course of petitioner’s employment.  I find that the petitioner is as Dr. Liss describes him, ”not a complainer” and understates his condition.  I accept his complaints with respect to the diminution in his working ability, his inability to place pressure on the toe to squat, and the difficulty experienced in cold weather.  I also accept his testimony with respect to problems with running and walking.  I do not accept Dr. Shah’s premise that this injury should be written in terms of the statutory foot.  It appears that this is a crush injury to the toe with a hematoma and that the amount of disability should be limited to the statutory toe.  I find the setting of disability at 15% of the statutory toe by Dr. Liss to be unrealistically low in light of his own stated positive findings, a review of the medical records and the treatment received by the Petitioner. , Out of consideration for the amount of time lost and the limitations to the petitioner’s working ability and private life, I set disability to be 45% of the statutory toe which would entitle the petitioner to 18 weeks of compensation at a rate of $138 a week for $2,484.  It appears that the bill from Dr. Wujack was reasonable and necessary.  It was a doctor who the respondent supplied.  That bill is $340 and shall be paid by the respondent.

There is a Notice of Lien filed by the State of New Jersey Temporary Disability Insurance in the amount of $1,106.02.  That amount will be deducted from the petitioner’s award of temporary disability.  Petitioner shall be awarded five weeks of temporary disability (as stipulated by the parties) at $280 a week for $1,400.  This award is based on the above findings and in consideration of exhibit P-3, Dr. Wujack’s statement that the petitioner should not return to work until June 8, 1998, Dr. Wujack in this instance could be considered the respondent’s doctor.  But in any event, his submission is the only competent medical evidence before the court as to the extent of permanent disability.  It is also consistent with the petitioner’s testimony that he was kept out of work for a period of time but chose to return early.  Since the parties have stipulated that the petitioner did miss five weeks of work, I rely on the report of Dr. Wujack to support the finding of disability in the amount of $1,400.

For the report of Dr. Shah, I will allow $150, payable half by each party.  Respondent will reimburse the TDI lien of $1,106.02 and will pay petitioner an additional 293.98 for temporary disability.

  Petitioner will reimburse his attorney for out-of-pocket expenses in the amount of $40.

 There shall be a counsel fee in the amount of $776, payable $198 by the petitioner and $578 by the respondent.  There shall be a stenographic fee in the amount of $300 payable by the respondent to W.C. O`Brian Associates.

I have enclosed an Order for Judgment prepared in accordance with this decision, which is being submitted to the parties simultaneously herewith.

                                                                                    ___________________________________

                                                                                    Anthony Minniti

                                                                                    Judge of Compensation

November 9, 2001