Brown Shoe Co. v. Reed

• Decision Date: 26 July 1961
• Citation: 350 S.W.2d 65,13 McCanless 106,209 Tenn. 106
• Parties: , 209 Tenn. 106 BROWN SHOE COMPANY v. John H. REED.
• Court: Tennessee Supreme Court

Page 65

350 S.W.2d 65

13 McCanless 106, 209 Tenn. 106

BROWN SHOE COMPANY v. John H. REED.

Supreme Court of Tennessee.

July 26, 1961.

Rehearing Denied Oct. 20, 1961.

Gayle Malone, Trenton, Senter & Senter, Humboldt, for plaintiff in error.

R. R. Haggard, Jr., Waynesboro, W. W. Lackey, Savannah, for defendant in error.

BURNETT, Justice.

This is a Workmen's Compensation suit brought and prosecuted pursuant to Section 50-901 et seq., T.C.A. After hearing the case fully the trial judge found in favor of the injured employee and against the Shoe Company and awarded compensation. An appeal has been seasonably perfected, able briefs filed, and arguments heard. After considerable study of the record, briefs and other authorities we have the matter for disposition.

The alleged injury of Reed happened as a result of repeated movement of the left hand and arm of Reed in the operation of a machine in trimming soles on shoes, the work being designated as 'rough trimming'. In doing this work a severe strain was placed on the arm of Reed, and in so doing this 'rough trimming' it appears that the ulnar nerve of Reed, which is sometimes designated as the 'funny-bone' nerve, repeatedly jumped out of its normal position and rubbed across the end of one of the bones of the elbow. Doctors testify to this injury as the 'repeated movement of the ulnar nerve in and out of the groove which it normally occupies.' This repeated movement of the ulnar nerve across the end of the bone, each such movement in effect being a separate traumatic injury to the nerve, resulted in the injuries for which compensation was sought and allowed.

The trial judge made a very comprehensive finding of fact. We have read this record and find that unquestionably this finding of fact is supported by material evidence. It is true that in some instances there is proof to the contrary or other conclusions might be drawn from the statements of different witnesses as read together, but taking the record as a whole we find that unquestionably there is material evidence to support this finding of the trial judge. After all, he saw and heard these witnesses testify, except the doctors who testified by depositions, and his finding as to their credibility is binding on us. When such a finding is supported by material evidence as herein we are likewise bound thereby. The trial judge in part found:

'The employee apparently thought little about this tiring or paining but assumed that he would become accustomed to this strain on his arm and particularly the left arm, as he continued to perform such work. This went on for some length of time and the soreness or pain in the left arm of the employee subsided overnight but apparently usually returned upon his use of the arm in the particular manner required by the job the following day. It seems that this employee was subsequently on one or more occasions taken off of this rough trimming job, and during such period or periods the pain or soreness subsided, but on his returning to such rough trimming the pain would again commence. Later, however, such pain or soreness in the left hand and arm of the employee began to be continuous. Finally, in about the latter part of 1958 or early 1959, the employee reported to the First Aid Office maintained at this Brown Shoe Company plant where the person in charge suggested that he soak the arm in hot water. This the employee did for some weeks. Then in the early part of March, 1959, the employee noticed that the thickness of the flesh between the thumb and forefinger on his left hand was somewhat smaller than that of the right hand, and since the pain in the left arm and hand had not subsided by the hot soaking recommended to him, the employee went to his physician in Savannah, Dr. T. R. Williams.

'Dr. Williams noticed that the employee had an atrophy of the web muscles of the left hand which would normally be caused by an injury to the ulnar nerve, or the funny bone nerve. Dr. Williams first suggested that the employee use the arm as little as possible and see if it did not get better. When the condition of the hand failed to improve in a few weeks, Dr. Williams referred the employee to a neuro surgeon in Memphis, Tennessee, for examination, and later, after such examination by the neuro surgeon and the report by the neuro surgeon to Dr. Williams, Dr. Williams recommended to the employee that he not use his left arm and that he have an operation to prevent further damage to the nerve. It was thus on the recommendation of doctors that the employee declined to use his left arm so as to prevent further injury thereto and disability therefrom.

'This injury apparently affected the employee by causing numbness in the little finger and ring finger and the portion of the hand between these fingers and the wrist. It also caused a shrinking or withering of the muscles between the thumb and forefinger of the left hand. It likewise caused him to lose his ability to grip tightly and caused some pain and numbness in the arm. After such recommendation by the doctor that he not use his left hand and arm at all, the employee again talked with the superintendent of the Brown Shoe Company plant in Savannah with respect to his condition and the recommendation of the doctors. Since there were no other jobs available at the plant which could be performed by the employee without using his left hand and arm, the employee accordingly quit his job on April 27, 1959, and the Court finds that April 27, 1959, is the date of the disabling injury received by the employee. The employee has not worked since April 27, 1959.'

The primary and basic question made on this appeal is that this injury, if any, suffered by the employee was not a compensable injury, and that no notice was given of the injury until long after it happened and no suit was brought within a year from the happening of the injury. Thus without repeating the assignments seriatim, we will deal with these various questions hereinafter.

Of course, under subdivision (d), Section 50-902, injury and personal injury are defined and it is said that they 'shall mean any injury by accident arising out of and in the course of employment * * *.' In our research on the matter we have run into what we consider one of the best definitions of an injury applicable to these Workmen Compensation cases. This is: 'In common speech the word 'injury,' as applied to a personal injury to a human being, includes whatever lesion or change in any part of the system produces harm or pain or lessened facility of the natural use of any bodily activity or capability.' Burn's Case, 218 Mass. 8, 105 N.E. 601, 603.

This record shows that the injury to this employee was the result of repeated trauma to the ulnar nerve caused by the constant and continued maneuvering of the left arm of petitioner while placing considerable strain thereon, all of which occurred while he was working for the defendant. This statement is conceded by the defendants and they take the position that if this was an injury the employee should have called the attention of his employer to this fact when he first began to have the pain. This though, as shown by the finding of fact of the trial judge above, would not necessarily follow because when he would quit doing this or was off at times this pain would ease up and it really wasn't until just about the time he went to the foreman, Trent, and the First Aid Station that there seemed to be any particular worry, or that he knew that he had any extended injury or disability.

The suit herein was instituted on October 3, 1959. He first learned of any extended injury in the spring or early part of 1959, or about the time, as found by the trial judge, that he was laid off on the advice of these doctors after going to his foreman and to the First Aid Station in March or April of that year. Thus it unquestionably appears from this proof that these repeated injuries to this nerve, no one of which resulted in disabling him, but the accumulation of which, resulted in substantial permanent disability to this arm. Thus it was that both doctors, Williams and Ingram, testified that this repeated movement, several hundred times daily, day after day, caused the slipping and irritation of the ulnar nerve and eventually caused neuritis of the nerve, pain and atrophy.

As a result of this there was numbness to the fingers, loss of sensation, and atrophy, and this was the natural result of the irritation and the neuritis of this nerve caused by these repeated movements. This repeated trauma to these nerves produced this injury and there was no intervening bacteriological or other infectious process or cause of the injury or disability according to Dr. Ingram.

We have given above the statutory as well as an excellent definition of what injury is. Now we must see whether or not under the factual situation herein if this injury was an accident as is used in the Workmen's Compensation Law. An accident is generally an unlooked for mishap, an untoward event, which is not expected or designed. Generally in most such cases this Court has repeatedly said that a compensable injury should be the result of something happening by accidental means though the act involving the accident was intentional. Accidental means ordinarily...