Central Franklin Process Co. v. Gann
Decision Date | 25 November 1939 |
Citation | 133 S.W.2d 503,175 Tenn. 267 |
Parties | CENTRAL FRANKLIN PROCESS CO. v. GANN. |
Court | Tennessee Supreme Court |
Appeal from Circuit Court, Hamilton County; L. D. Miller, Judge.
Proceeding under the Workmen's Compensation Act, Code 1932, § 6851 et seq., by Lou Rena Gann, employee, opposed by the Central Franklin Process Company, employer. From action of the trial court in sustaining a petition for writ of error coram nobis and awarding compensation, employer appeals.
Affirmed.
Hodges & Doughty, of Knoxville, for plaintiff in error.
Jac Chambliss and Clarence Kolwyck, both of Chattanooga, for defendant in error.
The parties will be referred to as petitioner and defendant according to their status in the trial Court.
This is a suit by the petitioner, Mrs. Gann, against the Process Company, seeking to recover Workmen's Compensation for total and permanent disability. While in the employ of the defendant and in line of duty, the petitioner, on September 7, 1937, slipped upon an oily floor of defendant's manufacturing plant, falling heavily on her left side and left arm. Both bones of her left arm were broken at the wrist, and her left side and her left hip received painful injuries. As a result of these injuries petitioner was confined at her home, unable to return to work, until November 21, 1937. During that time she was treated by Dr Reynolds, a physician employed by the defendant. At or about the time she returned to work, she was paid total disability benefits amounting to $72.38, for about eleven weeks disability.
The settlement of the question as to whether she had any permanent partial disability, and if so, the extent thereof, was postponed until a later date. In the meantime, the defendant required her to go to Dr. Campbell, another of its physicians and surgeons, for examination and treatment of her arm.
About three weeks after petitioner returned to work, her back and side began to pain her very acutely. Her suffering continued to increase, finally resulted in total disability, and she had to give up her job in the defendant's manufacturing plant. She thought this condition of her back and side resulted from her injuries, but she was advised by Dr. Campbell this was not true. Dr. Campbell likewise so advised the defendant.
On June 24, 1938, Dr. Campbell made a written report to the effect that she had ten per cent partial permanent disability resulting from the injury to her left arm. The report concluded, "I feel certain that the sciatica of which she complains does not relate in any way to the accident." The condition of her back and side referred to had been diagnosed as sciatic rheumatism.
On July 9, 1938, petitioner was visited at her home by W. S. Buck, Adjuster for the Insurance Company carrying the risk of the defendant. Mr. Buck sought to make a settlement with the petitioner. Under Dr. Campbell's report she was entitled to partial permanent disability benefits for fourteen weeks subsequent to November 21, 1937, that being the date when she returned to work. He offered her $92.12, which added to the $72.38 theretofore paid her, would make a total of $164.50. The period of fourteen weeks of partial permanent disability had long expired. Mrs. Gann was not willing to settle at that time, stating that she thought the condition of her back and limb resulted from her fall. Mr. Buck assured her that it did not, stating it had no connection with her fall, and that Dr. Campbell had so reported.
Petitioner stated she wanted further time to consider the matter. On July the 15th, Mr. Buck returned and again made the positive statement that Dr. Campbell, an experienced and skilled physician, reported that petitioner's sciatic condition did not result from the fall.
He presented to her a form of release which he wanted her to sign, and petitioner and her husband testify he assured her that it covered only the injuries to her left arm, and not injuries to her hip and back. This release, bearing date July 15, 1938, stated that it was in consideration of $92.12 then paid, making in all with said previous payments, $164.50,
The release, as required by law, provided that before it became effective it must be approved by the Circuit Judge. Mr. Buck arranged with the petitioner and her husband for them to meet him the next day at the Circuit Court Clerk's office for approval of this settlement.
At the appointed hour, petitioner and her husband met Mr. Buck and an attorney for the defendant at the Circuit Court Clerk's office, where a petition which had already been prepared was presented to petitioner, and she was requested to verify it by affidavit. Petitioner was at that time suffering intense pain in her back and limb. She and her husband had a discussion with Mr. Buck about the condition of her back, and were again assured that Dr. Campbell advised and reported that her sciatic condition did not result from the accident.
After a brief time, Circuit Judge Yarnell came into the Clerk's office. He did not formally open court. Petitioner was not represented by counsel. Judge Yarnell read the petition hastily, or the contents of it were stated to him. He asked petitioner if the settlement met with her approval, and she stated that it did so far as it covered injuries to her arm, but that she was suffering pain in her back and limb which she thought resulted from the injury. Thereupon, the attorney for defendant presented to the Court the written statement, unsworn to, of Dr. Campbell above referred to. The Judge stated that Dr. Campbell was a capable and reliable physician, and giving credit to this statement, he approved the settlement. No evidence was heard. The hearing was most informal and very brief. The order was entered on July 16, 1938.
The petitioner's condition continued to grow worse, and on August 15th--that being the thirtieth day after the entry of the order aforesaid--she went to Dr. Marchbanks, a radiologist, and had X-ray pictures taken of her back. These pictures showed that she was suffering from arthritis affecting the lower joints of her vertebra, and the resulting deposits in the joints of the lower vertebra were impinging upon the sciatic nerves, thus producing sciatic rheumatism in her back and left leg. She was advised this condition was permanent, and that it resulted, no doubt, from the traumatic injuries which she received in the fall. This was the first definite information given her by a physician that the condition aforesaid resulted from her said injuries.
The next day petitioner's husband advised one of the officials of the defendant of Dr. Marchbanks' diagnosis, and made demand for payment of additional compensation. The official, in Mr. Gann's presence, dictated a letter to the insurance company covering the risk, reporting what Mr. Gann had advised. The insurance company never thereafter communicated with the petitioner or her husband.
On or about September 1st, petitioner and her husband first consulted counsel and were advised as to petitioner's rights. Counsel thereupon prepared a petition addressed to the Judge of the Circuit Court, seeking to have the order approving the settlement re-considered, vacated, and a new hearing had. This petition was filed on September 1st.
It was averred in the petition that in the fall aforesaid petitioner received not only injuries to her left arm, but ...
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Floyd v. Indemnity Ins. Co. of North America
... ... trial court is supported by any material evidence ... Central Franklin Process Co. v. Gann, 175 Tenn. 267, ... 133 S.W.2d 503 ... ...