Davidson Rubber Co. v. Matherson

• Decision Date: 29 July 1971
• Docket Number: No. 6153,6153
• Citation: 111 N.H. 272,281 A.2d 50
• Parties: DAVIDSON RUBBER COMPANY, Inc. v. Andrea MATHERSON.
• Court: New Hampshire Supreme Court

Page 50

281 A.2d 50

111 N.H. 272

DAVIDSON RUBBER COMPANY, Inc. v. Andrea MATHERSON.

No. 6153.

Supreme Court of New Hampshire.

July 29, 1971.

Calderwood & Ouellette, Dover (Raymond R. Ouellette, Dover, orally), for Davidson Rubber Co., Inc.

Flynn, Powell & McGuirk and Charles F. Dalton, Jr., Portsmouth, for Andrea Matherson.

LAMPRON, Justice.

Appeal to the superior court under RSA 281:37 by the employer, Davidson Rubber Company, Inc., from a decision of the Deputy Labor Commissioner, on August 24, 1967, ordering that payments for total disability be continued to its employee, Andrea Matherson, who was injured on October 20, 1966.

Hearing before the Superior Court (Flynn, J.) who made certain findings and rulings and decreed that Mrs. Matherson was not entitled to compensation for total disability after twenty-eight weeks from the date of her injury. The court further ordered that if she desires further compensation she must first submit to the surgical procedures recommended to cure her neuroma, with the right to select her own physician and bearing the reasonable expense thereof. 'If by undergoing such surgery she is still disabled, she may apply to the Labor Commissioner for such compensation and medical benefits to which she might be entitled from the termination date provided herein.' Mrs. Matherson's exceptions to the findings, rulings and decree, and to the denial of her motion to set aside the verdict, were reserved and transferred.

On October 20, 1966, Mrs. Matherson, who is left-handed, sustained a laceration to the distal end of her left ring finger in her work for Davidson. She was taken to the company's physician, Dr. McCooey, who sutured the laceration by applying one stitch. On October 25, he removed the suture and on a third visit, November 3, 1966, he released her for work, although she complained of discomfort in the tip of her finger. She put a metal guard on that finger and returned to work for Davidson. She was given another job which required some dexterity with her left hand. She kept banging her finger which caused her pain and after three or four days she left her work and, at the time of the court hearing on October 27, 1969, had not been employed since.

The court properly found on the evidence that 'Mrs. Matherson has been troubled ever since this accident with this finger, as the scar (about five-eights of an inch) is tender and causes her pain when it comes in contact with an object * * *. At present, Mrs. Matherson's finger tip still bothers her, causing twinges when it gets hit while doing such housekeeping chores as ironing, using the dishwasher, scouring dish pans, making the beds, washing floors with a brush, and even while pushing the directional signal when driving her car.'

After being discharged by Dr. McCooey, on November 3, 1966, Mrs. Matherson sought no further medical attention until five months later, on March 21, 1967, when at the request of her attorney she saw Dr. Wheeler. Mention was made by her at the hearing of a visit to two doctors at Portsmouth Naval Hospital in February, 1967, but no evidence concerning the nature or details of this visit was admitted or any offer of proof made. Dr. Wheeler found a bulge on the injured finger which was sensitive to palpation. He diagnosed her difficulty as due to a small neuroma imbedded in the scar, recommended a conservative approach, and suggested evaluation by a hand surgeon.

She was seen next by Dr. Wheeler on June 29, 1967, at the time of the hearing before the Labor Commissioner. 'I was there for the purpose of testifying, but I arrived early enough to acquaint myself with her condition on that particular day and also to ask her some questions to refresh my memory.' Dr. Wheeler next saw Mrs. Matherson on September 16, 1969, when he was present at an examination made of her by Dr. McCooey. It could be found on the evidence that after her first visit to Dr. Wheeler's office on March 21, 1967, Mrs. Matherson did not see him again for medical attention until September 1969, about two and a half years after her first visit.

As to her contacts with Dr. McCooey after her discharge on November 3, 1966, the Court properly found that he examined Mrs. Matherson at the request of Davidson on June 9, 1967, and again on December 13, 1968, finding numbness in the tip of her finger and pain on pressure but no neuroma. He next saw her on September 16, 1969, when he concluded that the pain in her finger could be caused by a neuroma. Dr. McCooey testified that Mrs. Matherson never consulted him to ask his opinion 'with regard to her condition in view of this painful scar' or 'for follow up treatment or examination' a...