Central Franklin Process Co. v. Gann

Decision Date25 November 1939
Citation133 S.W.2d 503,175 Tenn. 267
PartiesCENTRAL FRANKLIN PROCESS CO. v. GANN.
CourtTennessee 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.

KENNERLY Special Justice.

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, "in full settlement of compensation *** on account of injury, to-wit: fracture left radius and ulna resulting in ten per cent permanent disability of left hand resulting to Lou Rena Gann on or about September 7, 1937. ** Said compensation dating from September 8, 1937, to full, final and complete settlement and being in amount $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 "a severe and painful injury to her left hip and back, in that the bones and muscles of her hip and back were jarred, sprained and dislocated severely. *** That the injury to her back was not immediately apparent, and she went back to work on or about November 21, 1937, *** but that the pain in her back became progressively worse until finally, some three or four months ago she had to cease her work on account of the pain therein. Petitioner respectfully shows that at that time she had pending the matter of settlement of a total partial disability to her left arm, and she was examined by medical counsel for the Central Franklin Process Company both for the injury to her left arm and for the injury to her back, which injury had become severe. *** That she was advised at that time by the medical representative of the Central Franklin Process Company that the condition of her back and hip could not be attributed to the accident which she had, and that the company was not liable for that condition, and it was entirely independent of her fall which she had suffered on September 7, 1937. Petitioner was suffering excruciating pain on account of the condition in her back at the time, (referring to the date of the settlement) but relying solely on the statements of fact made to her by the medical representative of the company, she agreed to accept the sum $92.12 for disability to her arm, being unequivocally advised that the condition in her back had no connection with the accident. *** Since the original order in this cause was entered she has gone to other medical authorities who have examined her and x-rayed her, and who now advise her positively that the condition of her back is due solely to the accident. *** Accordingly, petitioner alleges that she entered into the settlement agreement while under a mistake of facts, and into which she was led by defendant's representatives, and the sum of $92.12 which she received as compensation for permanent partial disability to her arm is grossly inadequate to compensate her...

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1 cases
  • Floyd v. Indemnity Ins. Co. of North America
    • United States
    • Tennessee Supreme Court
    • February 1, 1947
    ... ... trial court is supported by any material evidence ... Central Franklin Process Co. v. Gann, 175 Tenn. 267, ... 133 S.W.2d 503 ... ...

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