Consolidation Coal Co. v. Brown
| Decision Date | 06 December 1971 |
| Citation | 225 Tenn. 572,3 Pack 572,474 S.W.2d 416 |
| Parties | , 225 Tenn. 572 CONSOLIDATION COAL COMPANY, Appellant, v. Elmer J. BROWN, Appellee. CONSOLIDATION COAL COMPANY, Appellant, v. Charlie PHILLIPS, Appellee. |
| Court | Tennessee Supreme Court |
Donald F. Paine, Knoxville, for appellant.
J. H. Hodges, Knoxville, J. Carson Ridenour, Clinton, for appellee.
This opinion involves two appeals perfected by the employer of the appellees from the Law Division of the Law and Equity Court of Anderson County. The trial judge determined that appellees were suffering from the occupational disease of pneumoconiosis or silicosis which rendered them permanently and totally disabled within the purview of the Workmen's Compensation Law, and that this disease arose out of and in the course of appellees' employment with appellant.
It was also further determined that appellee Phillips was entitled to recover certain material expenses from appellant in the amount of $63.50.
In this opinion the parties will be designated by their adversary status in the trial court; that is, Elmer J. Brown and Charlie Phillips, as petitioners, and Consolidation Coal Company, as defendant.
Each of the petitioners filed his petition seeking compensation. The material allegations of each petition are identical. The substance of both petitions is that, prior to March 31, 1970, defendant operated a coal mine near Devonia, Tennessee; that petitioners were employed by defendant and worked in the mine at Devonia; that while performing their duties petitioners were exposed to and forced to breathe air which contained great concentrations of dust, silica particles and other deleterious materials; that petitioners continued working in this atmosphere until March 31, 1970, when defendant ceased to operate the mine at Devonia; that after being examined by a physician on April 17, 1970, petitioner Brown learned for the first time that he was suffering from the disease of silicosis; that petitioner Phillips learned on June 17, 1970, that he was suffering from the disease of silicosis, after being examined by Dr. William Swann; that this malady was brought about by working in dust laden air; and that petitioners are permanently and totally disabled within the meaning of the Workmen's Compensation Law and justly entitled to relief.
Defendant filed its answer to each petition. In each answer, defendant admits that petitioner was employed by defendant, and had worked in the coal mine for a number of years. Defendant denied that petitioners were exposed to silica dust while working in its mine and that petitioners were totally and permanently disabled. Defendant further avers that if petitioners are suffering from silicosis, then petitioners knew, or should have known, that they were suffering from this disease more than one year prior to the commencement of their suits against defendant. Defendant denies that petitioners contracted silicosis from working in the coal mine at Devonia.
The evidence presented at the hearings on the two petitions may be summarized as follows:
Petitioners have spent their entire economic lives working in coal mines, and neither of the petitioners has had the benefit of much formal education. Petitioner Brown has worked in the coal mining industry for forty-eight years and has an eighth-grade education. On the other hand, petitioner Phillips has spent twenty-seven years in the coal mines, and has a third-grade education. Mr. Brown has worked for defendant for seventeen years, while Mr. Phillips has been in the employ of defendant at its Devonia mine for fifteen years.
Both petitioners testified that they experienced extreme difficulty in breathing and that their breathing has been severely strained for the past one or two years. Petitioners stated that they were unaware of what caused the shorness of breath until they visited physicians after the mine closed on March 31, 1970. Petitioner Brown stated that he thought that his breathing difficulties were caused by 'heart trouble' since his father and one of his brothers had died of heart disease.
On April 17, 1970, Mr. Brown was examined by Dr. William Rogers. He learned for the first time that he had a great accumulation of rock and coal dust in his lungs. Petitioner Brown testified that he was told by Dr. Rogers that this condition was incurable and would continue to become more acute. Mr. Brown further testified that his breathing has become progressively more strained and difficult since he was examined by Dr. Rogers.
Mr. Phillips was examined by Dr. William Swann on June 17, 1970. After the examination was completed, Mr. Phillips likewise was informed that he had contracted silicosis. Petitioner Phillips further testified that he has experienced more difficulty in breathing since he was originally examined on June 17, 1970.
At the hearing on their respective cases, each petitioner stated that he was not able to perform any type of work. Petitioner Brown testified that he had tried to mow his lawn and run the vacuum cleaner for his wife but that he could not perform these simple tasks since his breathing was impaired. Mr. Phillips stated that he had tried 'to make a garden' but he could not finish this task since he could not breathe a sufficient quantity of air.
At the hearings below petitioners' wives, Josephine Brown and Edith Phillips, also testified. Their testimony corroborated the testimony of petitioners, in every respect.
At the hearing on Mr. Brown's petition, the deposition of Dr. Rogers was introduced into evidence. Dr. Rogers stated that he found Mr. Brown's physical condition to be as follows:
Dr. Rogers further said that the condition described above is permanent and that it may get worse.
At the hearing on Mr. Phillips' petition, the deposition of Dr. William Swann was received into evidence. Dr. Swann stated that after examining Mr. Phillips, he found that petitioner had contracted silicosis. After petitioner Phillips' disease was diagnosed by Dr. Swann, Dr. Rogers examined him. In his deposition, which was also introduced into evidence, Dr. Rogers stated that Mr. Phillips had contracted silicosis and that this condition would be permanent.
From each adverse judgment below defendant has seasonably perfected an appeal-in-error to this Court. Defendant assigns three errors in the judgment rendered for petitioner Brown. The substance of these assignments are: (1) that the trial court erred in adjudging petitioner Brown permanently disabled since this finding is not supported by expert medical evidence; (2) the finding of fact that petitioner is totally disabled is inconclusive since the trial judge disregarded material evidence in the record that Mr. Brown was not totally disabled; (3) petitioner's right to compensation is barred by T.C.A. § 50--1108 since he did not commence his suit until more than one year after he knew that he had contracted the disease.
Defendant has also assigned three errors to the judgment below rendered for petitioner Phillips. The substance of these assignments are: (1) that the trial court erred in adjudging petitioner Phillips permanently disabled since this finding is not supported by expert medical evidence; (2) the finding of fact that petitioner is totally disabled is inconclusive since the trial judge disregarded material evidence in the record that Mr. Phillips was not totally disabled; (3) the trial court erred in allowing medical expenses for treatment by a physician not designated by defendant.
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