Brewer v. Pocahontas Fuel Co.

• Decision Date: 08 March 1968
• Citation: 25 McCanless 130,425 S.W.2d 582,221 Tenn. 130
• Parties: , 221 Tenn. 130 R. E. BREWER, Appellee, v. POCAHONTAS FUEL COMPANY, Appellant.
• Court: Tennessee Supreme Court

Page 582

425 S.W.2d 582

25 McCanless 130, 221 Tenn. 130

R. E. BREWER, Appellee, v. POCAHONTAS FUEL COMPANY, Appellant.

Supreme Court of Tennessee.

March 8, 1968.

Egerton, McAfee, Armistead & Davis, Knoxville, for appellee; W. Keith McCord, Knoxville, of counsel.

Lee Asbury, Jacksboro, and William J. Turnblazer, Middlesboro, for appellant.

OPINION

BURNETT, Chief Justice.

This is a Workmen's Compensation case wherein the Chancellor found in favor of the employee and fixed his disability at permanent partial disability of seventy (70%) per cent to the body as a whole. The employer seasonably filed a petition to rehear, which was denied, and has appealed both parties filing very able briefs before us. After reading the record, these briefs, and authorities, we are now in a position to determine the questions here involved.

To the petition on behalf of the employee filed herein, the employer filed a plea in abatement based on the fact that any accident or injury of this employee had happened in the State of West Virginia under a contract made either in Virginia or West Virginia and not in this State and that there was no right of action in Tennessee. This plea in abatement was seasonably overruled and an answer filed in which it is set forth that any injury this man had happened while he was working for this employer in the State of West Virginia under a contract made in that State. The employee was a resident of the State of Virginia.

The petition on behalf of the employee alleges that the employee was injured while working for this employer on March 11, 1961, and that while thus working he sustained an injury to his back while lifting a heavy piece of equipment.

This record shows that for this injury which happened in Tennessee at the Morco Mine of the employer he was paid weekly compensation by checks issued by the company up until February 28, 1962. At this time his doctor told the man and the company that he was much improved and advised him that he could resume work which he did. He then worked for the defendant who had mines in both Tennessee and West Virginia until July 26, 1962, when he aggravated or re- injured his back and he was then let off and paid weekly benefits by the defendant on the same payroll sheet as paid for the injury of March 11, 1961. This sheet, showing these payments, doctors' bills, etc., of the defendant, shows under remarks that the injury was of March 11, 1961, and that it was aggravated on July 26, 1962, and these payments then continued until August 19, 1963. On this sheet the initials are R.T.W. 2/28/62, which apparently from this record would mean a return to work on February 28, 1962, and he worked until July 28, 1962.

This record also shows that on April 20, 1962, Dr. Henderson saw this man and says in his Progress Report that 'at which time he is working, although he still has some pain and weakness about the injured portion of his back. He was advised about care at home, and continuing at work.' The record also shows that on June 25, 1962, he was again seen by this doctor and at that time the doctor made the note, 'he is working but continues to have annoying pain and weakness about his lower back.' Again on July 21, 1962, the doctor makes the notation again that 'he is working but his condition has worsened somewhat. He was given an ultrasonic treatment and advised about care at home, and continuing at work.' On July 26, 1962, he was again seen by this doctor, and the doctor made the notation that on this date, that is July 26, 1962, 'he has an aggravation of his back pain and weakness as the result of doing heavier lifting than usual. He was given an ultrasonic treatment and advised about guarded activity, care at home and returning.'

Based on such evidence the trial judge found that the employee's payments as paid to him beginning in July, 1962, were a continuation of the payments which had been made for the admitted injury he had in Tennessee on March 11, 1961, and that these payments having been made to this man until August, 1963, the suit had been brought within one year after August, 1963, or within one year after the last payment was made to him as compensation.

The company argues very forcibly and ably that this record shows that this was a West Virginia contract and not a Tennessee contract; that these payments made from July, 1962, were payments made for an injury received in West Virginia and had nothing to do with the Tennessee injury. They argue very forcibly that this being true under the authority of Davis v. Swift & Co., 175 Tenn. 210, 133 S.W.2d 483, and § 50--917, T.C.A., this man was working out of the State under a contract, etc., not made in Tennessee and consequently under the Davis v. Swift case and the statute referred to he could not bring his cause of action in this State.

From what has just been said above though it is evident, and based on material evidence, that the Chancellor based his finding of the disability of this man on an aggravation of the Tennessee injury and was not for any injury received by the man while working out of the State. Clearly, this deduction can be reached from this record as the records of the company itself show that these payments were made for the Tennessee injury. For instance, one of the exhibits in the record is a check from the defendant to this man, dated January 8, 1963, which shows that it was for Workmen's Compensation and was a payment from ...