Miller v. Diamond Ice & Coal Co.

111 A. 745, 31 Del. 140, 1 W.W. Harr. 140, 1920 Del. LEXIS 22

• Court: Superior Court of Delaware
• Decided: December 17, 1920
• Docket: Appeal from Industrial Accident Board, No. 147
• Status: Published

Opinion

Per Curiam.

The Industrial Accident Board very properly considered the evidence adduced before them after the remanding order by the Court in connection with the evidence previously taken and the compensation agreement between the parties. The claimant’s injury to his left arm at the elbow and the general character thereof are well shown by the claimant and the several physicians who testified before the Board. There doubtless exists an impairment in the rotary motion of claimant’s arm but to what degree it is difficult to determine from the evidence. The claimant was advised by his physician to exercise his arm and to do light work such as his employee had for him at a weekly wage of twelve dollars. The physicians agreed that the exercise and labor recommended when done and performed caused the claimant pain as testified to by him, but that such exercise and work were necessary not only to prevent further impairment of the arm, but to aid in recovery from the effects of the injury, and the physicians practically agreed that if the claimant had followed the directions given to him, his arm would not be in its present stiffened condition but he would have acquired almost the natural use of his arm. It is manifest from the evidence that the claimant either wilfully or because of pain neglected and refused to reasonably follow the instructions given to him. It is difficult to determine with accuracy just what degree of impairment there would now exist in claimant’s arm as the result of his injury, if he had had the arm seasonably and reasonably treated, and if he had not neglected or refused to reasonably follow the instructions given to him in aid of recovery in the use of his arm.

The Court after careful examination and consideration of the record cannot say that the evidence and all surrounding circumstances do not reasonably warrant the award made by the Industrial Accident Board, and this being so, the award should neither be reversed nor increased. The award of the Board is, therefore, affirmed, but the costs of the appeal are awarded and taxed against the áppellees.