SECOND INJURY

Evening Post, Volume CIX, Issue 132, 7 June 1930, Page 14

SECOND INJURY

A WORKMAN'S CLAIM COMPUTING COMPENS AT lON A special sitting, of the Court of Arbitration was held at' Wellington yesterday to disposo of the case of compensation claimed by Samuel Nelson Short, of Motup!pi, /Nelson, labourer, against the Golden Bay Cement Company, Limited, .of Tarakohe. The statement of claim set out that on Tuesday, the 30th day of October, 11928, the plaintiff suffered an injury in. the course of his employment, through being struck by a heavily laden truck. He suffered serious injuries, including a fracture of the right [leg and contusions to his back, and had [been totally, disabled -ever since. His averageVweekly earnings -were stated to. be £5,2s 6d, and compensation had been paid on account amounting to £172 18s lOd. - The plaintiff claimed ajweekly payment of £3.7510 d to date, and jsueh further lump sum as the evidence ! would show to be reasonable. The case had been .partly , heard at Nelson on 23rd May,-when Dr. Jamieson 's evidence was taken'on behalf of the plaintiff, but it. was.-th'en adjourned to Wellington'by arrangement between coun-. s'el, and; as. the. lay -members of the Court were not available to-day, counsel further agreed that the case should be ■ taken i-by': his "Honour Mr.' Justice' Eraser alone. ■'".''.

Mr. P.. J. O'Regan, who appeared for J the plaintiff,'said that; the case'present-'j ed, some unusual '-"difficulties, as the!; plaintiff had been previously injured -in ! 1524, when the same leg was fractured below,- tho r knee,- as- the result of am accident'iil a coal inine, and in respect of tlra ft accident'had been paid a total of£lD3, as there was'permanent shorten-' ing of the limb. Tho case had been settle'd on- a;basis of ; 50 per cent, loss of: the leg, but. the recent accident'.had (caused a fracture above t>he knee, and had aggravated the shortening. .Despite the serious injuries by the first accident the-plaintiff had worked for the cement company as ; a quarry; worker, and had .earned his former rate of wages; until he met with -the-last accident. Ha had done no work since, and counsel, would submit 'that his" earning power had now been seriously diminished.:' '■ ..-■,- ■ ,;, '-.' . -, v The.; plaintiff' gave 'evidence on the lines indicated by counsel.. '." Dr. Rh'ind, called ori behalf, of the plaintiff,'estimated 'that he had been totally disabled to date, and in respect of the first accident he estimated his disability at 50 per cent, loss of the limb, but the last accident hadincreased the disability, to the extent of 66 per cent. Accordingly he was of opinion that the- plaintiff should receive full compensation to date, and lGTper cent, loss of the' limb for :the remainder of the period of .liability. By agreement of * counsel, ..a report | prepared by: Dr. D.CVLow, of Nelsonj was put in in. evidence. Mr. P. 13.; Cooke, who appeared, for the defendant intimated'! that he was quite/willing to accept Dr. Ehind's estimate.,, He, submitted a report by Dr. .Woodward of; Takaka, and maintained that,' reading the views of Drs. JamTesqh,'Xow,"'aiid : "WoodwaiM' together, .itho logical interpretation was that' plaintiff,' 'who "had' been bvor-com-pensated for the.first accident, was entitled "to,-nothing further.: His client company,' >Vas 'quite prepared to- be.: reasonable and would accept Dr. Ehind's >view. J !. Dr. G-iesen,' called on. behalf of the defendant. coiiipany, : i ' was in, general agreement with" Dr."Ehind. Mr. O'Eegan-subinited that the proper method was to-■ discard pecentages altogether and;, to/regard the plaintiff as: seriously and permanently disabled, fix a notional ;amount that he could earn per weeX and "take two-thirds of the difference. •:■; - Mr. Cooke submitted;-that there was no real evidence of any. loss of earning capacity, and .as plaintiff -had earned full .wages,: notwithstanding his first accident, for which he had been over compensated, it was reasonable -to assume that; his earning power was not diminished."'.':' ---;-;- ,

His Honour; agreed that the fact of the plain tiff'havihg returned to work at his old rate of wages : after the first accident proved that he> had been ovcreonipejisate.d for : the injury- resultiug thereirom. The,?Workers';. Compensation Act, however,,-did V'jio'fc of'that fact: being taken-into, account: Unquestionably plaintiff:was- : seriously injured by.the first'accident,.and the.condition Had' been , aggravated v by, tho second, ■and that;he mnst.eoriside'r/.tbat the- .capacity to ;barn:."wages; had 'been permanently reduced.. time of the accident plaintiff-was earning &5 25.6 d, and the Court' would assume that his'earning capacity had been permanently reduced to £4 ss, being 17s 6d less than his wages at tlio time of the last accident. Two-thirds of that amount was a weekly payment of-' lis Bd. The defendant company had paid. £172 ISs lOd, and, deducting this from tho accrued compensation, £278 2s'4d, thero was a,balance,of'£los 35.6 d. Adding the commuted value'of a weekly payment of lis Sd, £l2l Is 4d, the total amount payable was £226 4s lOd, for which judgment: would be entered, with £l2 12s, and medical witnesses £4 4s.