Christopher v. Consolidation Coal Co.
| Decision Date | 18 April 1969 |
| Citation | 222 Tenn. 727,440 S.W.2d 281,26 McCanless 727 |
| Parties | , 222 Tenn. 727 Francis E. CHRISTOPHER v. CONSOLIDATION COAL COMPANY. |
| Court | Tennessee Supreme Court |
W. Keith McCord, Knoxville, for appellant; Egerton, McAfee, Armistead & Davis, Knoxville, of counsel.
William J. Turnblazer, Middlesboro, Ky., and Roy Asbury, Jacksboro, for appellee.
This is a Workmen's Compensation case brought by the employee against his employer. The employer is self-insured as far as compensation purposes are concerned and it is conceded by both parties that it was operating under the provisions of the Tennessee Workmen's Compensation law, T.C.A. § 50--901 et seq.
The questions presented by this petition are the application of the statute requiring notice of disability, T.C.A. § 50--1107 and the limitation statute, T.C.A. § 50--1108, when the facts of this particular case come under these sections of the Code.
The petitioner was a coal miner of some thirty years' experience and has worked for the defendant from 1953 until he voluntarily quit on August 20, 1963, because of disability. At the time he quit he was hospitalized and his doctor informed him that he had rock and coal dust on his lungs and would not be able to return to work in the mines because of this disability. Shortly thereafter he moved to Cumberland County, Tennessee, where he remained for four years and was hospitalized several times there and treated by three different doctors for a lung condition. All of these doctors told him that he had coal and rock dust on his lungs, and this coal and rock dust was caused by his occupation as a coal miner. One of these doctors assisted him in the year of 1963 in obtaining Social Security. This petitioner knew in July, 1963, he says, that he had an occupational disease, but he denies on direct examination that he knew what caused his disability.
The Chancellor after hearing this man testify and hearing the depositions read determined 'that there was some doubt, much doubt in this mans mind as to what his condition was.' The Chancellor then after making this finding determined that under the circumstances the man was excused from giving notice under the act and for not filing suit within one year from the time he quit work, and he gave judgment for certain medical bills.
This suit was not commenced until after petitioner had been examined by a specialist in Knoxville and this specialist had determined that 'this was due to the disease which we saw in his lungs, although I did not personally originally feel that it was that severe.' This conclusion of the doctor was made after his examinations of August, 1967, some four years after he had left the employ of the company. This doctor likewise testifies that there isn't any treatment for the disease he had and that there isn't any cure. It can remain static or it can progress after a man leaves the mines. This doctor, of course, tells how he made his examination, and his different conclusions from this, that and the other thing, but he concludes finally that the man had silicosis and/or 'coal workers pneumoconiosis'. This doctor likewise in testifying says that when he first examined this man that he felt that the shortness of breath and things of that kind which the man had complained of for about four years was in his mind and stated, 'he does have a psychiatric diagnosis, * * *' In other words, the doctor thought a whole lot of the trouble was in the man's mind rather than his actually having trouble, but after the man was hospitalized and a thorough examination made the doctor did conclude that this man had a compensable disease acquired while he was working in these mines. As a result of that he wrote a letter to the man's doctor in Cumberland County and a 'To Whom It May Concern' note, and then following this notice in 1967 within a very few days this suit was brought.
Obviously, from what has heretofore been said the employer plead the lack of notice under the statute, T.C.A. § 50--1107, and the statute of limitations as shown by T.C.A. § 50--1108.
This record shows by cross-examination of the employee the facts above set forth as well as many instances in his proof in answer to questions on cross-examination that he had been told in 1963 that he could never go back to the mines and he knew he had rock dust in his lungs and that he would be unable to work; that he knew at that time that he was totally disabled. He had been examined, and had been to see his local doctor in Oak Ridge several times. He admitted that this doctor told him at the time that he had rock and coal dust on his lungs. He likewise when he moved to Cumberland County was examined again by doctors there and said they told him about the same thing as the doctor in Oak Ridge had told him. The proof shows that he never did get any statement from these doctors though that he had silicosis or what was the matter with him. He was asked:
Q. 'That you had an occupational disease?
A. 'Yes, sir.'
But even admitting that the doctors told him he had an occupational disease, he never did get any statement from them setting forth that he did have such a disease or what was the matter with him. He concedes that he got Social Security because he had a disease of his lungs. He was asked the question if it was an occupational disease and he answered that it was; that he knew he had rock dust on his lungs, and as a result he filed this claim for Social Security and it was granted. These questions were repeated time and again on cross-examination and in each instance the man conceded that he had such a disease, but he says very emphatically that he did not know what it was until he had the examination by Dr. Rogers in 1967 and he had then for the first time notice that he did have silicosis or a compensable disease. The cross-examination of Christopher brought out that between 1963 and 1967 he went to two different lawyers at different places but they would not bring an action for him against his employer because he did not have a statement from a doctor that he had a compensable disease. He frankly concedes that he did that and the record is replete with the inference at least that these lawyers would not bring a suit unless he had a letter or a direct statement from a doctor that he had such a compensable disease. There was no action taken, or notice given, or anything of the kind until after he had Dr. Rogers in Knoxville examine him, and Dr. Rogers gave him the letter to the effect that he did have a compensable disease. Then it was this suit was brought, the proof taken and with the result as heretofore indicated.
In reading Dr. Rogers' testimony it is shown very clearly that at first he didn't think there was anything wrong with the man; he tells how he examined different things, blood pressure, his breathing and things of that kind, and concluded that he was largely in a psychiatric condition until after he made these thorough tests in the hospital, and then it was that he concluded that the man had silicosis. One reading this testimony is forced to the conclusion that maybe when he went to see these other doctors they, too, didn't think he had an occupational disease or one that was compensable and that is the reason that none of them gave him a statement.
The records of these two personal doctors he had before he went to Dr. Rogers in Knoxville are not shown in this record. He was asked if the company would be permitted to have access to their records about the examination of him and he denied the company this privilege. Of course, the denial of the privilege is a fact question and one that makes the finder of facts conclude that maybe such testimony might have been against the man, and yet the question raised is purely a factual question and one cannot say by reading this testimony that the trial judge reached the wrong conclusion. Clearly, the trial judge was warranted under this proof in reaching a conclusion that the man did not know whether or not he had an occupational disease until it was discovered in 1967, and, of course, this then brings us down to the question when such a notice must be given. This Court as well as other courts over the country has had this question before it time and time again. We in addition to reading all of our authorities, that is, the opinions written by this Court on the question, have likewise read an annotation in 11 A.L.R.2d, beginning at page 277. All of this is indeed very instructive, and a number of the cases we have read, cited in that annotation, and its follow up in the supplemental service issued by A.L.R. in 1964, are found to be very interesting on this question. We find, among other things, at page 302 of 11 A.L.R.2d this statement:
'The ideal rule, it seems, would postpone the running of the time until actual disability and a reasonably sufficient opportunity to discover the disease and its relation to the employment occur; in fact that is the substance of the rule applied in many of the cases.'
We frankly agree to such a rule and it is in substance the rule that has been adopted by this Court.
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...the point where doubt was so far removed as to enable a physician to diagnose the trouble as [such]." Christopher v. Consolidation Coal Co., 222 Tenn. 727, 737, 440 S.W.2d 281 (Tenn.1969) (applying T.C.A. § 50-1107). Applying Christopher to a case involving a disability insurance, as in the......
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