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September 1, 1939

NORTON, Deputy Compensation Commissioner, et al.

The opinion of the court was delivered by: KALODNER

KALODNER, District Judge.

This is a motion to dismiss a bill of complaint in equity in a civil action.

The bill of complaint filed by the employer seeks to restrain, first by interlocutory injunction, and finally by permanent injunction, the enforcing of an award of compensation made by the defendant Norton, Deputy Commissioner of the Third Compensation District of the United States Employees Compensation Commission, in favor of the defendant Toler, the employee. The award provided that the employer pay the employee forthwith the amount of $72. The ground upon which relief is sought is that the award of the Deputy Commissioner is not supported by competent evidence, in that there is no evidence in the record to support the finding that the claimant's disability resulted from an accident which happened during the court of his employment with the plaintiff employer.

 I have studied the testimony carefully, and ordinarily, following the general rule that summary judgments of the kind sought by the motion to dismiss the bill should not be granted except in clear cases, would deny the motion (which technically is the only thing before me) upon the ground that the record does not present a clear enough case of lack of a cause of action on the plaintiff's part to warrant dismissing the bill. The testimony, however, is, as I shall demonstrate presently, in an unsatisfactory state, and if I deny the motion to dismiss the bill now, this court will again be confronted with the same record (i.e., the testimony) when it comes to pass finally upon the merits of the bill and answer. It would be well, therefore, to take proper steps to bring the record of the testimony into satisfactory shape now.

 A reading of the notes of testimony in the proceedings before the Deputy Commissioner discloses that the employee's claim to disability rests (1) upon his allegation that his wrist was injured in the course of his employment, and also (2) upon what is contended is adequate testimony by Dr. Moore to the effect that the alleged injury was the etiological factor in the subsequent tenosynovitis in the wrist. It is not clear from Dr. Moore's testimony as to whether he would have attributed the claimant's condition to the alleged injury if the latter had been to the wrist and not to the forearm. From the testimony I cannot determine just what Dr. Moore considered actually caused the tenosynovitis. He states with some emphasis that his opinion that the tenosynovitis resulted from a trauma is predicated practically exclusively on a previous history of a blow on the forearm. It is proper to cite the doctor's testimony in order to demonstrate the lack of clarity in this situation:

 "A. The testimony which you have recited to me differs from what I received, in that the man gave me a history that the blow was on the forearm and not on the wrist, which is not only some inches away from the place of which you have spoken, but has a great bearing on the diagnosis. Now, the blow on the forearm is much more likely to cause a tenosynovitis than a blow at the writ. He complained of pain in his forearm, never of any pain in his wrist, and I am very glad that he did not, because our X-ray findings are (not?) such as to substantiate any claim of pain that he did make in his wrist. There was no complaint of pain in his wrist when I examined him on October 24, and according to his statement the pain had and I think had always been on the lower third of the forearm.

 "I went into that quite fully with him, because we had an X-ray report showing evidence of an old arthritis in the wrist joint, and I was trying to eliminate that question of arthritis as the cause of pain. But the complaint of pain was definitely above the wrist joint over the forearm where he says that stung."

 The word "not" appearing in brackets in the above quotation has been inserted by myself. I think the word was meant to be included, otherwise the entire sentence is devoid of meaning.

 A scrutiny of the claimant's testimony describing the accident shows that he referred to a blow on the wrist a half dozen or more times. Several times, it is true, he did speak of a blow on his arm, but from the context it is quite conceivable that he was using the word generically, and that what he meant specifically was a blow on the wrist. Most of the time when the claimant used the word arm in his testimony he was referring to the situs of the pain and not to the situs of the blow. It seems quite clear from the claimant's testimony that he meant at all times to say that the blow was on the wrist.

 That being so, I cannot construe Dr. Moore's evidence in its present state as amounting to testimony that the blow on the wrist, apparently the only injury testified to have occurred in the course of the employment with the plaintiff, caused the tenosynovitis. On the other hand, Dr. Moore states that the claimant gave him, Dr. Moore, a history that the blow was on the forearm, at a point some inches away from the wrist, and not on the wrist itself.

 It is difficult, therefore, if not impossible, to dispose of this case properly on the present state of the record. Additional testimony should be adduced, both from the claimant (employee) and from Dr. Moore, to discover specifically whether the forearm or the wrist was struck, and in either event, whether Dr. Moore considers the tenosynovitis to have been caused (or aggravated, if an old condition) by the blow, wherever it landed.

 For the reasons given, this cause is now, the 1st day of September, 1939, remanded for the taking of additional testimony as indicated, the cause thereafter to be returned to this court, together with the record of such additional testimony, at which time the present motion to dismiss the bill of complaint will receive further consideration.


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