440 S.W.2d 281 | Tenn. | 1969
delivered the opinion of the Court.
This is a Workmen’s Compensation case brought by the employee against his employer. The employer is self-insured as far as compensation purposes are concerned and it is conceded by both parties that it was operating
The questions presented by this petition are the application of the statute requiring notice of disability, T.C.A. sec. 50-1107 and the limitation statute, T.C.A. see. 50-1108, when the facts of this particular case come under these sections of the Code.
The petitioner was a coal miner of some thirty years’ experience and has worked for the defendant from 1953 until he voluntarily quit on August 20, 1963, because of disability. At the time he quit he was hospitalized and his doctor informed him that he had rock and coal dust on his lungs and would not be able to return to work in the mines because of this disability. Shortly thereafter he moved to Cumberland County, Tennessee, where he remained four years and was hospitalized several times there and treated by three different doctors for a lung condition. All of these doctors told him that he had coal and rock dust on his lungs, and this coal and rock dust was caused by his occupation as a coal miner. One of these doctors assisted him in the year of 1963 in obtaining Social Security. This petitioner knew in July, 1963, he says, that he had an occupational disease, but he denies on direct examination that he knew what caused his disability.
The Chancellor after hearing this man testify and hearing the depositions read determined “that there was some doubt, much doubt in this mans mind as to what his condition was.” The Chancellor then after making this finding determined that under the circumstances the man was excused from giving notice under the act and for not filing suit within one year from the time he quit work, and he gave judgment for certain medical bills.
Obviously, from what has heretofore been said the employer plead the lack of notice under the statute, T.C.A. see. 50-1107, and the statute of limitations as shown by T.C.A. sec. 50-1108.
Q. “That you had an occupational disease?
A. “Yes, sir.”
But even admitting that the doctors told him he had an occupational disease, he never did get any statement from them setting forth that he did have such a disease or what was the matter with him. He concedes that he got Social Security because he had a disease of his lungs. He was asked the question if it was an occupational disease and he answered that it was; that he knew he had rock dust on his lungs, and as a result he filed this claim for Social Security and it was granted. These questions were repeated time and again on cross-examination and in each instance the man conceded that he had such a disease, but he says very emphatically that he did not know what it was until he had the examination by Dr. Rogers in 1967 and he had then for the first time notice
In reading Dr. Rogers’ testimony it is shown, very clearly that at first he didn’t think there was anything wrong with the man; he tells how he examined different things, blood pressure, his breathing and things of that kind, and concluded that he was largely in a psychiatric condition until after he made these thorough tests in the hospital, and then it was that he concluded that the man had silicosis. One reading this testimony is forced to the conclusion that maybe when he went to see these other doctors they, too, didn’t think he had an occupational disease or one that was compensable and that is the reason that none of them gave him a statement.
The records of these two personal doctors he had before he went to Dr. Rogers in Knoxville are not shown in this record. He was asked if the company would be permitted to have access to their records about the examination of him and he denied the company this
“The ideal rule, it seems, would postpone the running of the time until actual disability and a reasonably sufficient opportunity to discover the disease and its relation to the employment occur; in fact that is the substance of the rule applied in many of the cases.”
We frankly agree to such a rule and it is in substance the rule that has been adopted by this Court.
The closest case to the one at bar that this Court has rendered, is that of Tennessee Products and Chemical Corp. v. Reeves, as found in 220 Tenn. 148, 415 S.W.2d
“It results before the statute of limitations in occupational disease cases begins to run there must be: First, an incapacity for work; Second, either actual or constructive knowledge an occupational disease is the cause of the incapacity for work. In relating the incapacity for work to the disease an employee is required to exercise reasonable care and diligence; and if he does not he could be charged with constructive notice. ’ ’
In this Reeves ease, the employee in the fall of 1963 made an application for Social Security benefits. He previously noticed a shortness of breath while working and had not sought medical aid. He was found totally disabled by the Social Security Administration in 1963. In February, 1964 he made application to the Veteran’s Administration for a disability pension and this was granted to him in 1964. At no time had he ever been informed by his family physician, who had treated him on several occasions, that he was suffering from the occupational disease of silicosis. Early in 1965 he undertook to obtain a medical report from the Social Security Administration and the Veterans Bureau as to what he was suffering from, and he was refused. He again asked the Social Security Administration several times and was refused. It was not until April 8, 1965, that he was for the first time told that he had an occupational disease, silicois, and he filed suit within a year of that time. We affirmed the trial court in awarding him compensation under this state of facts. It is similar to the state of facts as we have in this ease.
The late Mr. Justice Tomlinson in 1959 wrote for the Court the case of Adams v. American Zinc Co., found in 205 Tenn. 189, 326 S.W.2d 425, and made some very succinct and correct legal conclusions about these same two statutes that are in question here. Among other things which he says in this case, which are unquestionably sound, is the following:
“It is injury from the disease, rather than the disease, which entitles an employee to compensation.
“It is for the same reason that our Courts hold that before the statute begins to run there must be knowledge upon the part of the employee, or knowledge that he should have had, that he has an occupational disease and that it has affected his capacity to work to a com-pensable extent.”
In lots of ways the present case is comparable to the Adams case, and yet in none of these cases do we find the exact factual situation, which, of course, causes us always to have to consider every case on its own bottom. Some of the things in the Adams case clearly would be strongly against the employee in this case.
This brings us to the consideration of the notice statute (T.C.A. sec. 50-1107) and the question for application of the factual situation here is in the language of the statute, “after the first distinct manifestation of an occupational disease the employee,” shall give the notice. "We in the first of these cases on the question of occupational disease, Greener v. E. I. Du pont De Nemours & Co., 188 Tenn. 303, 219 S.W.2d 185, [this opinion was likewise written for the Court by the late Mr. Justice Tomlinson], reach the conclusion from this language that the lead poisoning had occurred when the symptoms reached the point where doubt was so far removed as to enable a physician to diagnose the trouble as lead poisoning. In other words, it had to reach the point of being diagnosed by a physician as lead poisoning. The same application holds true to this case. If there was any doubt about it, it had to reach the point where a doctor would diagnose it as an occupational disease before the employee would have to give notice. It had to be diagnosed as that by a doctor before the statute applied.
Another case along the same line was that of Wilson v. Van Buren County, 196 Tenn. 487, 268 S.W.2d 363, where we considered this same language, “distinct manifesta
In our working on the present case and reading these various cases, we have found the case of Consolidation Coal Co. v. Porter, which was determined by the Court of Appeals of Maryland, the court of last resort, in 1949, and it is reported in 192 Md. 494, 64 A.2d 715. We find that the Maryland Court had concluded that the Consolidation Coal Company was liable in a state of facts very similar to those here. In this Porter case, supra, the employee ceased to work in 1944 because of pain in his chest, a cough, etc., and he consulted doctors, but his disease was not diagnosed until January, 1947, three years later, and it was from this date that it was held that the notice statute of the state applied. The court there considered the Maryland statute which contains almost the identical language of our statute and concludes that the term “manifest”, means:
“Clear, plain, evident, manifest, obvious, patent, palpable, unmistakable, conspicious, and says: ‘What is clear can be seen without dimness; what is plain can be seen by anyone at the first glance without search or study; evident suggests something more of a mental process but no difficulty in seeing that the thing is true; manifest is a degree stronger than evident, the mind getting the truth as by an intuition.’ No doubt the legislators used the word manifestation with something of this significance, intending that the duty of giving notice, and the risk that an employee might forfeit compensation for an occupational disease, should arise only when a symptoms of that disease should plainly appear, not when it was merely suspected or doubtful. ’ ’
“We agree that the words of the statute now in question mean in the case now before us that limitations as to notice to the employer, and as to the time of filing of the claim, Article 101, Section 26, supra, started to run in this occupational disease case from the time the employee or some one in his behalf knew or had reason to believe that he was suffering from an occupational disease and that there was a causal connection between his disability and occupation, which was January, 1947.”
Thus an award in his favor was affirmed. We have, so to speak, an identical situation here.
We come now to whether or not the statute of limitations (T.C.A. sec. 50-1108) bars the suit here. This statute as applicable here says that: “* * * within one (1) year after the beginning of the incapacity for work resulting from an occupational disease, * * *.” This Court again refers to the beginning of the incapacity in the Adams case, supra, and holds that this section like the notice section carries the same meaning as the term, “happening of the injury”, and then again says that the beginning of the incapacity under this section “is when such occupational disease, with the knowledge of the employee, or knowledge that he should have had in the exercise of reasonable caution, that he had an occupational disease, and that it has injuriously affected his capacity to work to a degree amounting to a compensable disability.”
Frankly, when we heard this case argued and started our investigation of it, we felt that there was
Thus it is, after a thorough consideration of the matter, we affirm the judgment below.