Turner Construction Co. v. Simono

DECISION.

Heard on employer’s application for review of agreement filed under the provisions of Workmen’s Compensation Act and later modified.

The employee while working as a laborer in October, 1928, sustained an injury to his right shoulder. He received compensation of $16 per week on the 'basis of total incapacity which amount was reduced in April last by Mr. Justice Baker, after hearing, to $8-per week on the ground that he was then only partially incapacitated. The employer now asks the Court to find that incapacity has ended.

The physicians appearing for employer and employee were practically in agreement that there are now no objective symptoms indicating any present injury to the right shoulder or arm. Dr. Farrell, however, called on behalf of the employee, testified that in his opinion employee could not yet carry a hod upon his shoulder as he had been wont to do in the course of his work. Dr. DeAngelis testified that the sixth and Seventh cervical nerves were affected. Simino, himself, said that because of 'his injury he could not raise his arm normally. The Court is not convinced that the employee has fully recovered and that he has not still some incapacity due to the accident.

The Court does think, however, that ■before another hearing if such be had. the employee Should perform daily some work or should in some manner exercise his right arm. Failure to perform such work which is urged by all the physicians who testified, or to enter into a suitable form of exercise should be considered at such time as 'bearing upon the question of this employee’s sincerity.

Petition denied.