Brown v. John Martin Const. Co.

• Decision Date: 15 November 1982
• Citation: 642 S.W.2d 145
• Parties: Robert BROWN, Jr., Plaintiff-Appellee, v. JOHN MARTIN CONSTRUCTION COMPANY, et al., Defendants-Appellees, and Harlan Mathews, Jr., Treasurer of the State of Tennessee and Custodian of the Second Injury Fund, Defendant-Appellant. 642 S.W.2d 145
• Court: Tennessee Supreme Court

Page 145

642 S.W.2d 145

Robert BROWN, Jr., Plaintiff-Appellee, v.JOHN MARTIN CONSTRUCTION COMPANY, et al., Defendants-Appellees and Harlan Mathews, Jr., Treasurer of the State of Tennessee and Custodian of the Second Injury FundDefendant-Appellant.

642 S.W.2d 145

Supreme Court of Tennessee.

Nov. 15, 1982.

Frank J. Scanlon, Sr. Asst. Atty. Gen., Nashville, for defendant-appellant.

James C. Lee, Chattanooga, for plaintiff-appellee.

Spears, Moore, Rebman & Williams, Goins, Gammon, and Baker, Jeffrey L. Cleary, Chattanooga, for defendants-appellees.

OPINION

DROWOTA, Justice.

Two issues involving the Second Injury Fund are raised in this worker's compensation case: (1) whether an injury to the back qualifies, under T.C.A. Sec. 50-1027, as an injury entitling the plaintiff-employee to receive benefits under the Second Injury Fund of the State of Tennessee; and (2) whether an employee-supervisor's knowledge of his own prior disability can be imputed to the employer to satisfy the "written record" requirement of T.C.A. Sec. 50-1027.

The plaintiff-employee, Robert Brown, Jr., first sustained a back injury in 1962, which required three back operations, the last being a spinal fusion in early 1966.Plaintiff had a 25% permanent partial disability as a result of his 1962 injury.After the 1966 spinal fusion, Brown was able to resume normal employment with the defendant, John Martin Construction Company.Brown became a supervisor with the defendant company and on December 6, 1977, he fell from a wall fracturing his right heel.Brown was recovering from the fractured heel when he again developed back problems which required more surgery to remove several discs and to repair the site of the previous fusion.The undisputed testimony was that, due to the present condition of his back, Brown is now 100% permanently disabled.

The Chancellor found Brown to be permanently and totally disabled as a result of the injury which occurred on December 6, 1977.The Chancellor awarded the plaintiff maximum benefits for total permanent disability.He ordered the defendant-employer to pay for 75% of the disability and assessed the remaining 25% against the custodian of the Second Injury Fund.

I

It is well established that a back injury qualifies under T.C.A. Sec. 50-1027 as an injury entitling the employee to receive benefits from the Second Injury Fund.See, e.g., E.I. du Pont de Nemours & Company v. Friar, 218 Tenn. 554, 404 S.W.2d 518(1966);Stovall v. General Shoe Corp., 204 Tenn. 358, 321 S.W.2d 559(1959).The Second Injury Fund argues, essentially, that the legal maxim inclusio unius est exclusio alterius should govern the construction of the statute.Since the legislature has specifically enumerated disabilities occasioned by loss of, or loss of the use of, a hand, arm, foot, leg or eye, the appellant contends the legislature has excluded other disabilities.We cannot agree.We are admonished by the legislature to give the worker's compensation statutes an equitable construction.T.C.A. Sec. 50-918 provides: "The rule of common law requiring strict construction of statutes in derogation of common law shall not be applicable to the provisions of the Workmen's Compensation Law, but the same is declared to be a remedial statute which shall be given an equitable construction by the courts to the end that the objects and purposes of this law may be realized and attained."Back injuries are common among industrial workers, and employers who hire those with previous back injuries should benefit from the legislature's benevolence along with employers who hire persons with one of the enumerated disabilities.The custodian of the Second Injury Fund raised this question in Stovall v. General Shoe Corp., supra, and in E.I. du Pont de Nemours & Company v. Friar, supra.In these cases, this Court rejected the strict construction advocated by the custodian.We think our holdings addressing this issue are correct, and we reaffirm them.

II

We now address the "written record" issue raised by the Second Injury Fund.T.C.A. Sec. 50-1027 provides:

"To receive benefits from the second injury fund, the injured employee must be the employee of an employer who has properly insured his worker's compensation liability or has qualified to operate under the Tennessee Worker's Compensation law as a self-insurer, and the employer must establish by written records that the employer had knowledge of the permanent and pre-existing physical impairment at the time that employee was hired or at the time the employee was retained in employment after the employer acquired such knowledge but in all cases prior to the subsequent injury."

In the case before us, John Martin Construction Company did not establish by written record that it employed Brown with knowledge of his previous disability or that it acquired such knowledge before the employee's second injury and the Company does not contend that it has actual knowledge.John Martin Construction Company asserts that since the employee was a supervisor at the Company, and since the employee was aware of his own disability, the employee's knowledge is imputed to the...