Aetna Cas. & Sur. Co. v. Long

• Decision Date: 07 August 1978
• Citation: 569 S.W.2d 444
• Court: Tennessee Supreme Court
• Parties: AETNA CASUALTY & SURETY CO., Appellant, v. Ollie K. LONG, Appellee. 569 S.W.2d 444

Page 444

569 S.W.2d 444

AETNA CASUALTY & SURETY CO., Appellant, v.Ollie K. LONG, Appellee.

569 S.W.2d 444

Supreme Court of Tennessee.

Aug. 7, 1978.

Robert R. Campbell, Knoxville, for appellant.

Joel E. Pearman, Harriman, for appellee.

OPINION

W. WAYNE OLIVER, Special Justice.

In this workmen's compensation case, in which the trial court found and held that the plaintiff is totally and permanently disabled by asthmatic bronchitis resulting from the conditions of her employment and awarded benefits accordingly, the defendant urges upon us in this appeal that there was no material evidence to sustain the judgment of the trial court(1) that the plaintiff's disease was so closely related to one of the statutory occupational diseases as to render it compensable under the Workmen's Compensation Law of this State, (2) that the plaintiff's disease met the statutory criteria of an occupational disease, and (3) that the plaintiff's claim was not barred by the notice and statute of limitations provisions of our Workmen's Compensation Law.

Of course, the defendant's insistence makes it incumbent upon us to determine whether there is any material evidence in the record to sustain the trial court's findings and judgment.The extent of this Court's authority in reviewing questions of fact involved in a workmen's compensation case here on appeal is to determine whether any material evidence appears in the record justifying the findings and judgment complained of.Davis v. Gulf Insurance Group, 546 S.W.2d 583(Tenn.1977).

The plaintiff, Mrs. Ollie K. Long, 54 years of age, testified she worked as a backwinder at Fibron, Inc. from about mid-August of 1972 until January of 1975; that her work involved quality control of plastic yarn and consisted in operating machines to rewind large spools of second quality yarn ". . . and try to get first quality out of them if I could"; that she was exposed to dust produced by the yarn with which she was working; and that a compressed air hose was used to clean the machines each time a package of yarn was removed and this process blew dust all over her face and clothing.She said her health was good when she began working at Fibron, Inc.; that "around '73, I think it was.Or '74.I don't know exactly the date"she"just suddenly accumulated a cough and that sneezing" and began experiencing difficulty in breathing, and this condition gradually became worse until she quit about January 6, 1975, because her request to transfer to the less dusty "packout" department was refused."Well, in '75, when I started back to work (after Christmas vacation), they had hired another girl in there She had previously worked there and they had fired her and they brought her back in and put her in packout.She knew how to run the backwinding where I had worked.They put her up on the packout instead of changing me.And I told my supervisor that it wasn't fair.And he said if I didn't like what he did, I could go home.And I walked out."

On cross-examination she said that she first learned she had bronchial asthma when she went to see Dr. Nat Swann at the Newell Clinic in Chattanooga about April 14, 1973.She said that initial visit to Dr. Swann was when she first started having breathing difficulty, that she continued to see him until she quit her job, and that he hospitalized her two or three times because of her breathing problem.

Further, she stated she began smoking when she was 13 or 14 years old and had never stopped, notwithstanding Dr. Domm (Sheldon E.) had advised her to do so.In addition to Dr. Swann and Dr. Domm, she had also seen Dr. I. M. Cox of Rockwood in regard to her condition.

Mrs. Long testified that, although in October or November of 1974she suffered a rib fracture when she fell over a box and her supervisor took her to the company doctor, she never told anyone at Fibron, Inc. about her lung condition, stating ". . . they knew about it, because I had been excused from a staff meeting in the quality control office one time because I could not stop coughing for the dust."She testified no one has ever told her that her bronchial asthma is related to the working conditions at Fibron.

On cross-examination she reiterated that she never at any time told any of her bosses at Fibron, Inc. that the dust was causing her breathing and coughing problems, either while she was working there or after she quit, saying she assumed they knew it was the dust that was causing her coughing.But she admitted this was only an assumption and that she did not know they knew that.And she explained that the reason she did not so inform the company officials, although she knew breathing the dust was causing those conditions, was because she loved her job and did not want to quit and needed to work, "And I was also afraid they would lay me off if I told them."

Testifying by deposition given on June 3, 1976(Exhibit 2), Dr. Isham M. Cox, a general practitioner in Rockwood, Tennessee, stated, upon examination by the plaintiff's counsel, that he first saw Mrs. Long on June 17, 1975, and found that she had an acute case of asthmatic bronchitis which she said she had had for some time; that she gave him no other personal history and told him nothing about the history of her working conditions; that asthmatic bronchitis is a chronic lung disease caused by "irritants in the lung or in the system producing wheezing, shortness of breath and inability to maintain good respiratory function.It can be caused from many things"; that he had seen Mrs. Long several times since her initial visit, had hospitalized her on occasions, had treated her with different bronchial dilators, and that her condition had not improved; and that she is a complete respiratory cripple incapable of doing any work and is 100 percent disabled.

Responding to a hypothetical question briefly outlining the nature of Mrs. Long's work and the associated dust, essentially in accordance with her description, Dr. Cox said her exposure to the dust "could be" the cause of her condition, "Yes, that can cause it."Persisting, plaintiff's counsel asked Dr. Cox "Is it your opinion that this condition could well have caused it?", to which the doctor replied, "It could well have caused it."Pressing the point, counsel asked, "Doctor, what is your opinion about the cause of this problem?"He replied, "I don't find any other condition in her history that would produce this."(As noted, however, Dr. Cox had already testified that Mrs. Long gave him no history except that she had had asthmatic bronchitis for some time, and told him nothing about her working conditions.)

Dr. Cox was asked whether the plaintiff's condition has "similar pathological effects and affects the lung as silicosis would," and his answer was "Similar, not exactly like it."On cross-examination, he agreed that silicosis is a disease caused by the inhalation of free silica or silica particles into the lungs, and that this can result in a fibrotic or nodule condition developing in the lungs, reducing the elasticity of the lungs and causing respiratory impairment; and that the pathological description of asthmatic bronchitis is different from silicosis.He said x-rays taken when the plaintiff was in the hospital with asthmatic bronchitis showed her lungs to be clear.He further testified that bronchial asthma is a seasonal allergic condition caused by "pollens and things," where as "Asthmatic bronchitis in contrast can come on any time that there is a favorable situation in the system whereby the lungs act up.It can follow a cold or pneumonia or be associated with them"; that "Lots of things can cause it. . . .Being allergic to your own germs that are causing a respiratory infection. . . .Also working around dusty areas could predispose to this"; that when he referred in his testimony to irritants in the system he meant "colds and respiratory infections being associated with it"; that it can be caused by infection, "Yeah, you can be allergic to the bug whether it be a virus or bacteria that's causing your respiratory infection.You can be allergic to that"; and that breathing cigarette smoke "can" cause it, but said he did not know whether or not Mrs. Long smokes.

Asked hypothetically whether smoking a pack of cigarettes a day from the time she was 13 years of age could be a cause of her asthmatic bronchitis, Dr. Cox said, "It could, it wouldn't necessarily have to.Everybody that smokes a pack of cigarettes from age 13 won't get that, they'll get emphysema more than likely."(Mrs. Long told Dr. Sheldon E. Domm, to whom she was referred by Dr. Cox on another matter, that she had smoked a pack a day for 40 years.Exhibit 5.)

Still under cross-examination, Dr. Cox was asked and testified "Q I take it as far as the breathing of the dust in Mrs. Long's work, I take it your answer there is the same it could be but you're not necessarily saying that it was?

A That's correct.

Q As to whether it was smoking or breathing dust at work or what it might be you can't just pick out and say it was one of these and not the other?

A No, I can't."

The doctor also stated that the plaintiff has hypertension, arthritis of the spine and obesity.(Dr. Domm's report, Exhibit 5, states that she weighs over 200 pounds.)

On re-direct examination, when asked about the physical effects of silicosis, Dr. Cox said "Now, we're talking about two different things."Under further questioning he said the particles breathed in over a period of time by silicosis victims will eventually cut the lungs and cause them to bleed and hemorrhage, that they have a cough, difficulty in breathing and reduced chest movement; and that Mrs. Long has some reduced chest movement, a severe cough and great difficulty in breathing.

Dr. Sheldon E. Domm, a thoracic surgeon of Knoxville, said in a letter to the plaintiff's attorney, included in his reports concerning the plaintiff(Exhibit 5), that he was unable to give an opinion...