Miller v. Diamond Ice & Coal Co.

Headnote

1. Master and Servant — Board Rehearing Compensation Case may Consider Evidence Taken Both Before and After Remand.

In proceedings under Workmen’s Compensation Law of 1917, before the Industrial Accident Board for review of a compensation agreement, the board on rehearing following the appellate court’s remand for irregularities in the proceedings may consider the evidence adduced after the remanding order in connection with the evidence previously taken and the compensation agreement.

2. Master and Servant — Evidence Held to Show Compensation Claimant’s Failure to Reasonably Follow Physician’s Directions.

In proceedings under Workmen’s Compensation Law of 1917 for review of a compensation agreement, evidence held to prove that employee either willfully, or because of pain, neglected and refused to reasonably follow instructions of physicians, and that if he had followed instructions the impairment of his arm would not have existed.

3. Master and Servant — Compensation Award Reasonably Warranted by Evidence Final.

Award of Industrial Accident Board will be neither reversed nor increased on appeal, where there is evidence to reasonably warrant it.

Proceedings under the Delaware Workmen’s Compensation Law of 1917 (29 Delaware Laws, 763, c. 233) before the Industrial Accident Board by John Miller, claimant, for review of compensation agreement, No. 7902, on the ground of subsequent increased incapacity for work, against the Diamond Ice & Coal Company, the employer. The Industrial Accident Board found that the disability of the claimant had terminated on a date mentioned in the award and that thereafter he was not entitled to compensation. Claimant appealed. The appeal coming on to be heard, the

Court remanded the record to the Board for a rehearing. On rehearing the Board made an award in favor of the claimant. Claimant appeals. Award affirmed.

On May 29, 1919, the claimant sustained an accident in the course of his employment with the employer. On June 14, 1919, the parties entered into an agreement to the effect that the injured employee should receive compensation at the rate of $12.00 per week, based on an average weekly wage of $24.00, at the time of his injury, payable from and including May 30, 1919, until terminated in accordance with the act. On December 3, 1919, the injured employee filed a petition with the Board for review of the compensation agreement on the ground that his incapacity for work had subsequently increased, and prayed for a hearing to determine the matter in accordance with the facts and the law. After the hearing on the petition for review of the compensation agreement, the Board, on January 16, 1920, determined that the disability had terminated on December 18, 1919, but awarded compensation to the claimant from and including November 28, 1919, to and including December 18, 1919, at the rate of $12.00 per week, being for a total sum of $36.00. The claimant appealed but because of irregularities in the proceedings the record was remanded for a rehearing. After the rehearing, the Board on May 11, 1920, found, in substance, that the injury of the claimant had not been reasonably treated, and that if the injury had been reasonably treated (29 Del. Laws, c. 789, § 3193 ss) the earning power of the claimant on and after November 28,1919, would have been impaired ten per cent., thus reducing his earning power from $24.00 per week to $21.60 per week, and made an order that the employer pay compensation to the claimant under the provisions of subsection (b) of section 103 of the Act at the rate of one dollar and twenty cents per week, said amount being fifty per centum of the difference between the wages received by the claimant before the injury and his earning power thereafter, had the injury been reasonably treated, and that the compensation so awarded should be payable from and including May 11,1920, until the termination

of claimant’s partial disability for work, not, however, beyond two hundred and eighty-five weeks subsequent to May 29, 1919.

The injury to the claimant was caused by his being struck on the left arm by a bucket used in unloading coal, and the arm was broken at the elbow. Subsequently, the head of the radius was amputated, impairing to some extent the motion of extension and flexion of the arm. The claimant was thereafter directed by the attending physician and surgeon to exercise the arm and do light labor which the employer had offered to him to prevent contraction of the muscles and stiffening of the arm from lack of use. The claimant did both for a while, but because of pain neglected to follow the instructions given to him and discontinued doing the light work assigned to him by his employer. The testimony of several physicians is in agreement that the exercise and light work recommended would have been beneficial to the arm. The case before the Court on appeal from the award made after the rehearing ordered by the Court.

The grounds of the appeal are, in substance: (1) Because the board based its conclusions and findings not upon the evidence taken subsequently to the remanding order, but in conjunction therewith, and considered all the evidence previously taken, together with the compensation agreement, and all records of the Board relating to the matter in issue. (2) Because the evidence did not warrant the finding that the claimant was directed by his attending physician and surgeon to take certain exercises and treatments for improving the impaired condition of his arm, and he did not follow those directions; because the Board found that the claimant refused to do light work suitable to his capacity, and because the Board found that the claimant was not reasonably treated, and allowed him compensation only for such loss of earning power as would have been sustained by the claimant had the injured arm been reasonably treated. (3) Because the Board found from their observations of the claimant, and their knowledge acquired of the work he had been doing since the accident, that his earning power, even considering his present condition, is not impaired beyond thirty-three and one-third per cent., and if the injury had been

reasonably treated, his earning power would not have been impaired beyond ten per cent.; and because the Board also found that the injury was not reasonably treated and that had it been reasonably treated the earning power of the claimant would have been impaired ten per cent., thereby reducing his earning power from twenty-four dollars per week to twenty-one dollars and sixty cents per week. It was alleged that such findings by the Board are against the law and also the evidence, and that the impairment as shown by the evidence is permanent and disabling to the extent of not less than thirty-three and one-third per cent.; that his earning capacity since the accident has not been in excess of twelve dollars per week and that his employment has been uncertain and irregular, thereby reducing his earning capacity to a sum much less than twelve dollars per week on an averge. It was also alleged that the claimant was treated for his injury by the physician at the hospital and by those designated by the appellee’s insurance company; and that the complainant did nothing whatever to hinder or prevent proper treatment of his injury by said physician.