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Smith v. Town Dock3/31/2005
DECISION OF THE APPELLATE DIVISION
This matter is before the Appellate Division on the petitioner/employee's appeal from the denial of his petition for specific compensation on the grounds that the petition was filed more than two (2) years from the date his condition reached maximum medical improvement. After thoroughly reviewing the record and considering the arguments of the parties, we deny the employee's appeal and affirm the findings and orders of the trial judge.
On March 3, 1999, the employee sustained a laceration to the underside of his left foot while working. Apparently, he was taken to the hospital and the wound was sutured. There is no information in the record as to the subsequent treatment of the injury. The employee did not testify in this matter, but comments in the record indicate that he returned to work some time ago. There are also indications that the employee previously received specific compensation for scarring, but we are unable to determine when that occurred.
The parties presented the depositions and reports of Drs. Jonathan Sisskind and K. Nicholas Tsiongas. Dr. Sisskind, a chiropractor licensed in Massachusetts and New York, conducted an evaluation of the employee on October 25, 2002 for the specific purpose of determining the degree of loss of use resulting from the employee's work injury. The doctor noted that the employee limped somewhat, favoring his left foot, and his work boots revealed extra wear on the outside edge of the sole indicating an effort to keep weight off of the ball of the foot which was the location of the laceration. Dr. Sisskind noted decreased strength of the left foot in flexion and of the left great toe with flexion and extension. Using these strength deficits, he calculated that the employee had a twenty-three percent (23%) loss of use of his left lower extremity based upon the charts found in the American Medical Association's Guides to the Evaluation of Permanent Impairment, 5th edition.
Dr. Tsiongas, a specialist in occupational medicine, evaluated the employee on April 4, 2003 at the request of the insurer. He noted that the employee complained of hypersensitivity in the area of the scar around the ball of his left foot and a constant ache, however, these complaints did not significantly restrict the employee's daily activities. Dr. Tsiongas reviewed the report of Dr. Sisskind and was under the impression that Dr. Sisskind had used charts regarding loss of motion, rather than weakness or loss of strength, in determining the employee's loss of use. Dr. Tsiongas did not find any ratable loss of motion, but there is no indication that he measured weakness or loss of strength.
Dr. Tsiongas indicated that the employee had developed a hypertrophic area of scarring on the ball of the foot which was painful. Using the chart for skin disorders in the AMA Guides, he concluded that the employee had a four percent (4%) whole person impairment due to the impact of the painful scar. The doctor also noted that the employee "may actually benefit from a podiatric evaluation to minimize his pain when walking."
(Res. Exh. A, report of Dr. Tsiongas 4/4/03)
The trial judge found that the employee had failed to prove that the petition for benefits for loss of use was timely filed, i.e., within two (2) years of the date the employee's condition reached maximum medical improvement. He noted that neither of the physicians addressed this element of proof. Therefore, he was left with the date of injury, March 3, 1999, as the only known date. The trial judge stated that even giving the employee the benefit of the doubt and estimating that the condition reached maximum medical improvement on
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