Dingus v. Holston Defense Corp.

362 S.W.2d 249 | Tenn. | 1962

Me. Justice BueNett,

delivered the opinion of the Court.

This action was filed by Dingus under the Workmen’s Compensation Act (sec. 50-1025, T.C.A.) to increase the amount of a previous compensation award granted to the employee, Dingus.

Dingus was injured in 1957 and at a previous hearing for this injury he was awarded, on April 28, 1958, benefits under the Compensation Act based upon a finding of fifty (50%) percent permanent partial disability to the body as a whole.

In July, 1961, a few weeks before the first award would have been paid in full, Dingus filed the present petition to reopen this case and to increase the original award. The Chancellor aftór hearing proof increased the award from fifty (50%) percent to seventy-five (75%) percent permanent partial disability to tbe body as a whole.

Tbe injury to tbis employee occurred on or about October 30, 1956, in tbe scope of bis employment. At tbe first trial all tbe doctors for tbe petitioner, Dingus, stated that be was totally and permanently disabled. Tbe petitioner likewise testified in substance to tbis effect. After bearing this proof tbe Chancellor concluded that be was only entitled to a fifty (50%) percent disability. Tbe proof in tbe present case for an increase in tbe award is almost identical with that as submitted in tbe first case. Probably tbe only possible difference is that tbe employee says that be tried to work since that time but has been unable to do so and that be is totally and permanently disabled. Tbis proof though is not substantially different from that proof offered at tbe first bearing. There is no proof in tbis record that there has been an increase in tbe disability of tbis employee from tbe time tbe case was beard tbe first time and tbe award there made.

Under tbis statute, and there is no other statute, tbe sole question for determination of tbe trier of facts is whether or not there has been an increase or decrease of the incapacity due solely to tbe injury effective since tbe date of tbe original award. Hartford Hosiery Mills v. Jernigam,, 149 Tenn. 241, 259 S.W. 546.

We recently bad before us tbe case of Reynolds Tobacco Co. v. Rollins, 203 Tenn. 565, 315 S.W.2d 1, wherein an almost identical factual situation was developed as here. In tbe Reynolds case tbis Court concluded that a court bearing a case for an increased amount of a previous compensation award was not authorized to correct mistakes in conclusions of fact drawn from evidence as to the extent of disability which was considered at the original hearing. It is true that in the Reynolds case the trier of facts made the frank statement that he was attempting to correct a mistake that he had originally made. The Conrt though did not base that opinion solely upon that statement, but based it upon the consideration of the evidence, which showed that there had been no increase in the disability from that from which the employee suffered at the time of the original trial. In the present case there are some statements made by the trier of facts to the same effect, but the trier of facts concluded that the disability suffered as shown by this record should be increased. A careful study of these facts though bring us to only one conclusion, that is, that the injuries had not increased since the first award. We cite only one statement of the employee’s doctor, which in effect embodies the whole proof. Dr. Keener, who likewise testified in the first trial, testified in this trial:

“No, he hasn’t made any improvement. In fact, I don’t know that he is worse, but he is no better.”

There is really no other conclusion that we could reach from reading the testimony herein. There is no factual showing that there has been any increase since the first hearing.

The result is that the judgment of the Chancellor must be reversed and this cause dismissed. The only way that such a mistake could be corrected, if one has been made, at this factual juncture of a compensation award, is for a change in the statute,