*1 Imperial Corporation Shirt C.
Willie
Jenkins.
Opinion January 5, filed 1966. plaintiff error, Nashville, Jr., DeWitt, WaRd Nashville, of Harbison, & Trabue, Sturdivant Minick, eonnsel. *2 error, Nashville, A. for defendant
Richard Jones, eonnsel. Nashville, of Entrekin, & Warfield opinion of Mr. Chief delivered the Justice Burnett the Court.
This is a suit wherein year only question not the one involved whether or and sec. 50- T.C.A. limitations, sec. 50t1003 applicable. action trial held that the The 1017, appeal by thus have the was not barred statute. We employer. ably briefed been of the The considering argued, cases cited and, making independent investigation matter, position in a to decide the case. now employee happened on December by the herein commenced action 1961, petition filing a on November a summons and At accident Jenkins 1964.
process tilting large something- a box when heard he slip pop day, in his On the back. same he consulted plant hospital nurse who sent him tc a local by where he was seen doctor. doctor advised him to for return heat treatments he did space one or two occasions within the or so week after the accident of 20th. Thereafter, December he con- regular job approximately years. on his tinued two During year only day the first missed an occasional he from work because of There were times when back. his back him bothered and times when he was free pain. spring He next saw doctor when of 1963 chiropractor Bowling 'Kentucky. he consulted Green, general practitioner Thereafter he saw another doctor, town wherein who lived, referred him Dr. *3 George Carpenter, orthopedic specialist an in Nashville. Upon Carpenter recommendation of and an Dr. associate spent period days Baptist his, of he of in the five Hos- pital prior returning an additional week at home to happened spring early work. to This sum- x-rays diag- A mer of 1963. series of were taken no but difficulty was at that Thereafter, nosis made time. his returned to condition work, better was little he increasingly painful his back became more until he specialist by again referred to a Nashville a. Avas local neurosurgeon, This he was to a who referred doctor. definitely performance myleogram, of a was diagnose as to his condition a herniated nucleus able pulposis. performed February operation
An 10, 1964, was ruptured repaired. disc remained in Petitioner days required hospital for eleven and was thereafter May, until from work about 1964. When he off May, returned to work in lie was told was no work there given unemployment slip. available and testimony specialist of this last who examined diagnosed him is to his condition on the effect January 24, as that this indicated, and above by specialized diagnostic type procedure. confirmed specialist suffering petitioner This found to be (20%) per permanent disability body twenty cent whole; aas he found that had a residual atrophy leg, extremity leaving left low his some right. three centimeters than smaller He was found legs to have weakness and in his discomfort and limita- tion movement and discomfort in his back and low back; This doctor also that it testifies not uncommon pulposis type go for a un- herniated nucleus of this diagnosed years for a and that it was not at all diagnosis made im- certain that such a could have been mediately following key certain this accident because present. symptoms apparently were doctor like- person wise testified it was not uncommon for a although having working a herniated continue suffered injuries pain experienced with disc and that such pain periods periods of increased varies with improvement. relative trial court found, such state facts the
Under follows: *4 petitioner injured on
“The Court finds scope employ- in the while 20, December 1961, petitioner although knew the that he suffered ment disability injury it was kind and a of some an February actually diagnosed until 4th, 1964, known * ** finds that the resulted in dam- The Court leg, leg I age believe the doctor said left to the left leg. right Dr. smaller than the is three centimeters permanent disability per at 20 cent estimates Cobh body disability that whole. Conrt finds as petitioner per disabled to that that 20 extent ’’ cent. not the limi- is, that the whether or Thns applied in tation statute (T.C.A. 50-1017) applicable. 50-1003 sec. and see. cases Humphrey, 199 Tenn. 528, In S.W.2d we1, Griffitts together Sections must be construed found that two these they liberally so must be construed that the limi- and that year begins from of one to run com- ation menceability than of loss the time of rather accident. applicable statutory found under In other we rules words, two statutes should be construction these taken to- gether T.C.A. statute, 50-1017, sec. since other reasons later enactment stated opinion was the statute to one apply considering in limit Com- these Workmen pensation at In con- cases. other arrived words, just period was not limitation from clusion injury. limitation accident but Compensation, work Yol. Mr. Larson his excellent regard say page this to 2, 78.41, has sec. interpretation given to such statutes: there great majority courts been sufficient- have
“Yet ly impressed of a literal unfairness with the acute implied language application con- read by running suspending of the statute until dition diligence it is discoverable reasonable care compensable apparent sus- been ’’ tained. says page this: at In the Section same *5 claim, “A Ms quali- fortiori, should not be barred when him, physicians present fled been unable . have with a diagnosis period of his condition within the of limita- ’’ tions. present The record shows that man years after this worked on for approximately two go merely but did to doctors who administered heat He went to treatments. two or three different kind of specialists doctors and of them none found out what the matter with him until the date trial found the statute January started run, Thus 1964. it is appli- these statements Mr. Larson become cable. page
Mr. Larson at sec. 78.42, same Vol- say ume, on here involved: “Twenty-two period states date claim from the 'injury’. most 'accident’; of the rest it from the date ‘injury’ type of Under the there is almost statute, now judicial complete agreement period that the claim runs compensable injury apparent.” becomes As decided said under our statutes above, “injury” period upon theory is the Larson statutes were Mr. enacted. discusses questions length, especially involved at here under the type says argument, statute, “accident” a definite course, there should be to deter- right begins mine when of action and that under the type it is the “accident” date of the accident, and the argument you “injury” type is if have the many questionable would be too indefinite and as result claims, says: presented, would be and he
‘‘ prove case, that claimant must still Ms Tlie answer is discovering including due work care connection requires injury. occasionally of his If nature employer claim to defend based an *6 years several earlier, inconvenience not injustice compared shocking refusing com- with the pensation through the claimant, for blindness because technicality his which no fault of could own, involves any never at time have a valid Sec. 78.42 filed claim.” (b), page supra. 265 of Larson, says, 78.42(c), following He at Section, sec. too, page 265, that: dating period the ‘accident’ the claim
“Statutes changed.” wrong, and should be supra, Humphreys, in eases We and other “injury” type changed not neces- have recog- by judicial by accepting sarily but determination Legislature construing nized statute standards enacting Legislature statute, first wherein many years pro- later 50-1003, T.C.A. sec. enacted and this vision T.C.A. sec. 50-1017, the other statute, precedence certainly over the takes later statute applicable statute, which makes first statute and “injury” type not limitations the type. read of this Thus, when the facts “accident” adopted clearly find that the trial case we “injury” type theory applied limita- statute of doing his facts warrant tions to accident because the so. contemplates Compensation Act
The Workmen’s liberality, only also but evidence, the admission in border- therefrom, be drawn the inferences to carry cases the court will line endeavor to out the benev- object olent of the Workmen’s Act and resolve doubts in favor of the claimant. This reported immediately, his accident was sent to a doctor, and the wrong doctor didn’t think there was with much him strap up him things told his back and ado few like that, his back hurt continued to off and on. He right couple years worked on for a and did not dis- really cover that he had an back, permanent leg to his as heretofore indicated, year long elapsed until after the had from the time that had had the accident. is no There of fraudu- part lent employer, concealment on the of the or the anything just doctors or kind. man had what thought simple kept these doctors was a accident and he working. really They injury, didn’t discover until long happened. after the time it had
As we see under the well reasoned this it, cases of country and of our State, those cited in the case, supra, clearly and this others, the trial warrants court holding begin that the statute didn’t to until run here permanent injury that discovered this was happened connected with accident which had subse quent thereto. ignorant person type man was uneducated, really knowledge
and he had no about Workmen’s Com- pensation anything Compensation, or that kind. Compensation, provided pain, is not is for compensation man suffered off and but on, is wages wages loss and man lost no until he finally went to the who determined doctor what was wrong with and when he him then went back to he work given speak. It so to then dismissal, was was he first maybe some kind com- to that was
realized entitled he pensation. Obviously, make a to he could no reason see anything give of the kind suit or claim notice or file or wages then determined off, and until after his were cut permanent injury. him this that accident had caused plaintiff brief in error his excellent Counsel for the in which the of cases to this Court a number cites they argument to this case. made that are permit taking up each of these cases not Time will particular showing does that of that case the facts apply several have read cases not here. these We participated Suffice of those most decisions. times, compar- say, cited it the facts of none the cases to except some that facts in the instant case able closely injuries, the facts so back were concerned brought parties in those each of attention the courts acci- cases that determined party had because dent the determinative time wrong something him there with at that time notice his claim. The have, filed he could should have, where especially Warrant, not instant do so facts did, has determined as he when the trier of facts why knowing seeing hearing all of witnesses support material not done. evidence There position, in this true it trier of and this facts merely of law for us under the comes down to by him to whether statutes do facts found they agree apply. the trial do not. We with *8 expressed judgment must herein the below For reasons be affirmed.
Opinion on Petition to Rehear very employer herein a courteous, has filed petition petition dignified rehear. to This and forceful
611 largely propositions, (1) based on the to-wit: that the recovery hospital trial conrt allowed for a doctor’s hill, bill and two weeks’ benefit the which occur prior red well within limitations statute of the the time that trial court found that herein the the compensable; (2) Pillsbury became of Engineering Co., v. United S.Ct. 223, U.S. Longshoremen’s 96 L.Ed. the construed dating Harbor Workers’ the Act, injury, than the time of the rather the controlling. was carefully considering questions,
After our con- these question clusion is first the of the doctor’s bill and ’ hospital compensation two was the bill and the weeks not way raised or other was court, trial nor one objection original us in was no before record. There trial court to the admission of these bills nor was question for allowance of bills these raised assignment motion a new trial error there- no naturally true, to this Court. made working paid heed date record little of said pre- way since bills one as the matter other, only question involved whether or sented to us the year applied of limitations as set one original opinion. forth in our presented are now
These items a forceful three they argument on the situation that since factual antedate year beginning the statute limitations it must determined that the accidental thus filing peti- happened year than before the more controlling items tion do not think these herein. We objection especially fact that no due to the there was presented they to them when made trial were court raised about Our no them. determination of *9 compensable solely the claim case was on basis that injury time from time of and not dates from the the the fully in forth our accident as discussed set is Again original opinion. Insurance case Travelers the pressed is 674, 206 Tenn. Jackson, 272, Co. S.W.2d original authority against in our conclusion as opin by re-reading opinion, of the Jackson careful ion it will found that the determined sole exactly is we that determined as have determined saying: the therein case, Court appears the rule “It that Compensation starting cases is determinative point running is of the statute for the the occurrence happening rather than the acci- ’’ dent. quotations opinion largely up of Then is made City Stores, Inc., Pittman v. 204 Tenn. 325 S.W.2d factually entirely from the differs facts opinion it this case. Thus is as read the Jackson legal proposition way same determined the same by original opinion determined in this is, was, as case. Pillsbury by case, above, said construction Supreme Long- Court States of the United Workers’ and Harbor
shoremen’s Act and by determination is based the con- Court of Longshoremen’s Act struction of the effect statutory runs from limitations of and not from the time of the as we con- by great our Act State, is construed strue majority original opinion. shown in our Slates as petition consideration of
After a careful rehear, overruled. must be