ARBITRATION COURT.

Otago Daily Times, Issue 19617, 22 October 1925, Page 3

ARBITRATION COURT.

CLAIM FOR COMPENSATION. HOTEL PORTER’S FALL. The Arbitration Court—Mr Justice Frazer (president), with Messrs W. Scott and H. Hunter —sat yesterday morning to hear a claim for compensation. Walter Frederick Phillips, hotel porter, proceeded against Duncan M'Kenzio, hotelkeeper, claiming compensation for incapacity resulting from an accident that occurred during the course of his employment. Mr F. B. Adams appeared for plaintiff and Mr A. C. Stephens for the defendant. The amended statement of claim set out that the plaintiff was an hotel porter and defendant an hotelkeeper, both residing in Dunedin. On October 2, 1924, while engaged in cleaning the top of a wardrobe m defendant’s hotel the plaintiff was accidentally injured by falling from the stepladder on which he was standing. The plaintiff’s average weekly earnings at the time were £2 ss, and board and lodging worth 53s a week. He had since been and would for some time continue to be wholly incapacitated as a result of the accident. Defendant had paid the plaintiff £79 5s 6d compensation for the accident at the rate of £1 17s 9d from October 2, 1924, to July 23, 1925, and a further sum of £5 on August 20, 1925. The plaintiff claimed a weekly payment of £2 5s 3d compensation from October 2 (credit being given for payments made) to continue until ended, diminished, or redeemed, or such lump sum in lieu thereof as the court should think fit. He also claimed £1 medical expenses, costs of these proceedings, and such further or other relief as the court should deem fit. After discussion with his Honor as to the interpretation of. the relevant clause, Mcl Adams agreed tia reduce his estimate for board and'lodging from 35s to 30s. Mr Adams said there was no question about the accident. The only two questions were whether plaintiff was entitled to 3Cs or £1 for board and lodging, and secondly, the question of incapacity or otherwise. The man’s right elbow was injured after a fall from the top of a wardrobe that he was cleaning. Apparently there was some little piece of bone or other obstruction which impeded the action of the elbow. It had surprised counsel a good deal that no doctor at anv stage had advised an operation. The 'man’s elbow had never been opened. He was left with limited movement in the elbow and movement leading to pain when he used the arm to any serious extent. The man was now undoubtedly fit for work of some kind if work of the kind for which ho was fit could be found. Counsel, however, knew of no work which he,,could do as matters bow stood. His submission was that the onus rested in the first place upon the employer to show that the man not merely could do some work if work were available, but that there was work available of the kind that he could do. He was limited to such classes of light work as could be done without any serious exercise of his ngnt arm. Tho man had for months past been on the lookout for light work that he could 'do. He thought the court would be satisfied that he had done his best and had been unable to find any work whatever The plaintiff, Walter Frederick Phillips, in evidence said he had done no woik since the accident. He demonstrated to the court the present limitation of movements of his right - arm. He felt pain in his arm and back after using the arm. Ho had taken every opportunity of exercising the arm, but found acute pain after wonting a quarter of an hour or so. He had sought without success to find suitab.e occupation. He had seen some seven doctors but none of them had aciMseci an operation. He was not competent to undertake office work. He was an immigrant who came out about 12 months ago. He had worked for Underwood and other typewriting companies at Home. He detailed a number of inquiries he had made in the endeavour to secure work To Mr Stephens: Ho was 24 years of age and single. He had had to use the loft arm for months while the right was in a sling, but he did not think' he could do his hotel work with his left arm. He thought that he was able to do light worn about tho middle of March last. He estimated his tips at Wain’s Hotel as worth about 2s a week to him. Dr W. Marshall Macdonald said he had examined the plaintiff on March 20 and found considerable limitation of the movement of the elbow joint. He thought plaintiff’s flexion had improved considerably, but the most marked improvement had been in pronation and supination. The X-ray showed the cause of the limitation in a fragment of bone broken off the radius and lying in the joint. Witness assumed that a considerable amount of the fragment had been absorbed. That would normally take place if the joint were not irritated by too early attempts at work. Plaintiff should not use his arm too. freely for some time to come. He was not fit for ordinary labouring work, but he was for light work. He did not think there would be a complete recovery in the sense of a complete range of moi-ements. To Mr Stephens: He thought plaintiff should be able to get back to hard work in time. Mr Stephens touched first on the amount of wages, and suggested that £1 nor week was a reasonable allowance to be made for board and lodging in this hotel. He contended that plaintiff was not now ento be paid on the basis of total incapacity. He suggested that a lump sum should be paid. His Honor said that Dr Macdonald’s evidence was right against the fixing of a lump sum. Duncan M'Kenzie, defendant, licensee of Wain’s Hotel, said he did not know whether the board and lodging of plaintiff would cost him more than £1 a week. He would sooner board and lodge him than allow him 30s a week.

To Mr Adams; He had offered to take Phillips back, but Phillips had rat returned. He had an extra porter on now, and did not think he could take Phillips back. Dr W. Rowlands said he had seen two X-ray photos of plaintiff’s elbow. He agreed with Dr Macdonald’s evidence about the movements of the arm. He did not think the displaced fragment of bone was in the joint, but just outside it. He concluded that such movement as scrubbing would not be harmful. He did not think plaintiff was in need of any further medical He needed natural exercise. but not violent exertion.

Mr Adams asked to take advantage of the evidence regarding tips and to add in 2s, making total earnings of £3 17s. After a brief retirement.' Mr Justice Frazer announced the court’s decision. The disability from which the plaintiff suffered was not of such a nature, he said, as to justify the court in considering him as an “odd lot” in the labour market. There were numbers of avenues of employment still open to him. It might be perfectly true that up to the present he had not been able to find any of these avenues, but the court must not consider the state of the labour market. The court assessed the plaintiff’s average earnings before the accident at £3 17s. Ho was entitled to the full pension for total incapacity up to July 23. that was to 58 per cent, of £3 17s. This was not a case for a lumn sum payment, as there was still considerable uncertainty about the future of it. The court fixed the weekly payments from July 23 at £1 to continue until payments under the order were “ended, suspended, diminished. or increased” in accordance with the ActmPlaintiff was also allowed costs £7 7s, the usual £1 allowance for medical treatment, and witness's expenses £2 2.5.