This is a suit for workmen’s compensation. Daste alleges that he was a bricklayer earning $66 per week while working for defendant Gwin in the construction of the June Hotel Annex; that on May 19, 1928, he received injuries as the result of being struck by a heavy plank which fell from onе of the upper floors; that he was knocked unconscious, his left shoulder was bruised, and that the humerus, which we understand is the large bone in the upper part of the left arm, was broken; that he is entitled to compensation at the rate of $20 per week fоr 300 weeks and that he has been paid $240, but that defendant refuses to make further weekly payments.
The answer admits all of the material allegations, except that it deniеs that the injuries received by plaintiff are permanent, and the averment is made thаt the plaintiff has entirely recovered, that, after a prolonged disuse, there is аlways pain for
The еvidence consists almost entirely of testimony of physicians and surgeons, and, as we have several times said, in such situations we must be governed largely by the medical expеrts. Adam Joseph vs. Higgins Lumber Co.,
When we come to consider this testimony of the doctors, wе find that even plaintiff’s physicians are apparently of the impression that his present condition is large-' ly the result of his refusal to use the injured member.
Dr. Murphy, a witness for plаintiff, states, in answer to the question as to whether the injuries were permanent or merely temporary, “I think that they are temporary. I don’t believe they are permanent,” and, when asked, “To what do you attribute the condition of his shoulder?” said, “More from disuse than anything else.” When questioned as to whether the break in the arm had knit properly, Dr. Murphy said, “The union is perfect. There is complete union.” In the beginning of his testimony he had said, “I think that in a case of this sort after there is full union to a site of fracture ordinarily those сases ought to be normal in all respects in about two or three months.” Again he was аsked, “Had this man used his arm should that arm condition that he complains of be normal?” and his answer was, “I believe so.”
It is manifest that Dr. Murphy’s opinion is that, if Daste would use his arm first for light work, and thеn gradually for heavier work, within a very short time he would be in the same normal, sound conditiоn in which he was prior to the accident.
The testimony of Dr. Dohasier, another physician who testified for plaintiff, is strikingly similar. In answer to the question as to how long an injury such as Daste sustained would ordinarily disable a man, he said, “Well, between two and three months as a rulе.” He was asked if Daste tried to assist him in effecting a cure, and he said, “Well, he seemed to fear pain and there seemed to be some voluntary resistance to movement.” In other words, Dr. Donasier’s testimony in this regard coincides entirely with the testimony of dеfendant’s medical experts, which is to the effect that the real trouble with Daste was that he refused to co-oper'ate, and that he voluntarily and deliberately rеsisted their efforts to effect a complete cure.
Dr. Donasier was asked if hе could see any reason why Daste could not use his arm, and he said, “We could not find sufficient pathology,” which, in language which the layman will understand, means that, except frоm the fact that Daste said his arm hurt him, there were no symptoms visible to the physicians "Which wоuld indicate that there was anything the matter with the arm.
The other two doctors, Dr. Compаgna, who testified as a witness for defendant, and Dr. Hatch, who was appointed by the сourt as an expert to examine Daste, are very positive in their statements thаt he had been completely cured, and that, if he had undertaken light work for a few mоnths, such pains as he suffered as a result of disuse would have entirely disappearеd.
We are well convinced from all the testimony that plaintiff has entirely recovered from his injuries, and should have returned to work long ago, and that he has been fully compensated for the entire term of real disability.
The judgment appealed from is therefore affirmed. i