Crowder v. Klopman Mills, Division of Burlington Industries, Inc.

• Citation: 627 S.W.2d 930
• Parties: Anna Ruth CROWDER, Plaintiff-Appellant, v. KLOPMAN MILLS, A DIVISION OF BURLINGTON INDUSTRIES, INC., and Liberty Mutual Insurance Company, Defendants-Appellees.
• Decision Date: 16 February 1982
• Court: Tennessee Supreme Court

Page 930

627 S.W.2d 930

Anna Ruth CROWDER, Plaintiff-Appellant, v. KLOPMAN MILLS, A DIVISION OF BURLINGTON INDUSTRIES, INC., and Liberty Mutual Insurance Company, Defendants-Appellees.

Supreme Court of Tennessee.

Feb. 16, 1982.

Max E. Wilson, Mountain City, for plaintiff-appellant.

Thomas R. Grayson, Mountain City, for defendants-appellees.

OPINION

HARBISON, Chief Justice.

This worker's compensation claim was dismissed as being barred by the statute of limitations, T.C.A. § 50-1003. The employee insists that the employer voluntarily furnished medical services so as to waive or toll the statute of limitations. Undisputed evidence in the record, seemingly not called to the attention of the trial judge, supports that contention. Accordingly the judgment of the trial court is reversed and the cause is remanded for a new trial.

Appellee was employed at a textile mill operated by her employer in Mountain City, Tennessee. Her duties involved strenuous use of her hands and arms. She developed a ganglion cyst in the area of her right wrist as a result of these activities. She was seen by a physician on several occasions in September and early October 1978 for this condition. She was hospitalized, and on October 16, 1978, the cyst was removed by surgery.

Appellant was off from her work for only four days, so that she did not qualify for temporary total disability benefits under the Worker's Compensation Act, T.C.A § 50-1005. When she returned to work, however, she was placed on light duty and was told by her employer that she would be notified when she was able to return to her original job. This never occurred. Appellant continued to have complaints of pain and discomfort in the wrist and in the area where surgery was performed for the remainder of her employment with Klopman Mills, which terminated on February 4, 1980.

The worker's compensation insurance carrier for the employer paid the medical and hospital expenses in connection with appellant's surgery. Its last voluntary payment to the surgeon, according to affidavits in the record, occurred in December 1978. Thereafter, insofar as the record discloses, neither the employer nor the insurance carrier has made any expenditures on behalf of the employee.

On five occasions after the date of the surgery, once in 1978, three times in 1979 and finally on February 11, 1980, the employee reported to a registered nurse maintained at the plant by the employer. She had also been seen by the nurse on six occasions prior to the date of the surgery. The nurse did not testify, however, nor were her records filed in evidence. The testimony of the employee does not coincide with the dates stipulated as to when services were rendered by the nurse. Apparently the employer maintained a first-aid station. The employee testified that shortly after the surgery the nurse on several occasions dressed the surgical wound, and thereafter from time to time furnished the employee with "an elastic band around my wrist." The visits to the nurse continued until a few days before suit was brought in this case, February 29, 1980, the last visit occurring a week after appellant ceased work at the plant.

It is the insistence of the employee that the supplying of nursing services in and of itself constituted a sufficient voluntary furnishing of medical care to toll the statute of limitations within the purview of T.C.A. § 50-1003. The record, however, is so meager and the testimony so vague and general that we are unable to sustain this contention. We cannot, for example, ascertain whether the nursing care was prescribed by an attending physician as required by T.C.A. § 50-1004 ("such nursing services as ordered by the attending physician").

The employer and its insurer, of course, insist that more than one year had elapsed between the last voluntary payment of medical expenses in December 1978 and the commencement of the suit on February 29, 1980. They therefore insist that the action is barred under T.C.A. § 50-1003.

This, however, overlooks several facts which are undisputed in the record. The record itself is quite sketchy and brief, and the case was tried in a rather unusual manner. Dr. Obregon, the physician who performed the surgery, did not testify. It was stipulated that he would testify that appellant retained fifteen percent permanent partial disability to her right hand as a result of her admittedly compensable injury. It was further stated that, if called, he would testify that her condition would have prevented her from working at her normal duties at the plant since she was terminated on February 4, 1980.

It does not appear why the attending physician was not called as a witness or at least a report obtained from him, nor does it appear when he last saw appellant. She testified that she went to his office "on a number of occasions" after the surgery, but the record is quite unclear as to whether she was furnished any medical services by him after the date of the last payment by the insurance carrier in December 1978 or as to when he billed therefor. Appellant further testified that she had required the services of a physical therapist on several occasions since her termination in February 1980, and she stated that she had brought the bills for this therapy to her attorney. The therapist did not testify, however, nor were any of the bills for such therapy introduced in evidence.

Nevertheless, it clearly appears from the record that in September 1980-nearly seven months after suit was filed-counsel for the appellees referred appellant to a physician, Dr. Donald R. Walters, for evaluation. Dr. Walters testified by deposition, which was filed as evidence on behalf of appellees.

Of course, it is well settled that the action of an employer in...