Johnson v. Anderson

• Decision Date: 17 January 1949
• Citation: 217 S.W.2d 939,188 Tenn. 194
• Parties: JOHNSON et al. v. ANDERSON.
• Court: Tennessee Supreme Court

217 S.W.2d 939

188 Tenn. 194

JOHNSON et al. v. ANDERSON.

Supreme Court of Tennessee.

January 17, 1949

Rehearing Denied March 11, 1949.

Error to Circuit Court, Jackson County; John D. Holladay, Judge.

Proceeding under the Workmen's Compensation Law for permanent total disability by Edgar (Bud) Anderson, opposed by Vestal Johnson, employer, and another. To review a judgment affirming an award, the employer and insurance carrier bring error.

Affirmed.

On Petition to Rehear.

C. W. Spear and T. B. Finley, both of Lebanon, for plaintiffs in error.

Anderson & Anderson, of Gainesboro, for defendant in error.

GAILOR Justice.

This appeal presents a petition under the Workmen's Compensation Act, Code,§ 6851 et seq., which was filed originally in the County Court, appealed by the defendants to the Circuit Court, and again appealed by them to this Court. Both in the County Court and in the Circuit Court, the petitioner Anderson was awarded judgment against the employer and the insurance carrier for permanent total disability in the sum of $5,000 less credits for amounts already paid for compensation.

The assignments of error and supporting arguments in the briefs filed here, go far beyond the limits and scope of our review on such an appeal. If supported by material evidence, all questions of fact have been conclusively determined by the concurrence of the two lower Courts. So the assignments of error and argument on the weight of the evidence and the credibility of the various physicians are alike useless and irrelevant.

We take that view of the evidence most favorable to the employee's claim, and we will not disturb the award of the Trial Judge if we find material evidence to support it. Milne v. Sanders, 143 Tenn. 602, 228 S.W. 702; Vester Gas Range & Mfg. Co. v. Leonard, 148 Tenn. 665, 257 S.W. 395; Mullins v. Tennessee State & Lumber Co., 155 Tenn. 132, 290 S.W. 975; DuPont Rayon Co. v. Bryant, 160 Tenn. 362, 24 S.W.2d 893.

Properly limited by applying the foregoing rules, the appeal presents only two questions which are open for our review (1) Should the award have been based on loss of earning capacity or on loss of use of the right leg?

(2) Should the Trial Judge have modified his award on account of evidence that the employee's disability would be lessened by further surgical operation?

Consideration of these questions necessitates a brief statement of the evidence of petitioner's accident and injury in the light most favorable to his claim. Prior to the accident, he was employed as a sawmill hand, and was on account of the limits of his education and training, capable of performing only manual labor. On October 11, 1946, while he was sawing a log a slab split off and fell on his right foot and leg, breaking the ankle, bruising and crushing the foot and leg. No question is made but that the injury rose out of and in the course of employment, and for some weeks after the injury liability was admitted and compensation paid. In March 1947 payment of compensation was stopped and petitioner filed this suit for an award based on permanent total disability, less credits for the amount of compensation already paid.

Bearing in mind the 'material evidence rule,' Vester Gas Range & Mfg. Co. v. Leonard, supra, it is only necessary to consider the evidence of petitioner's witness, Dr. R. C. Gaw, who had been in general medical practice for 35 years, and who knew petitioner and had examined and treated him both before and after the injury. The doctor testified that petitioner, as a result of the injury, had a 'permanent condition of atrophy' which would be 'progressive;' that an operation would not better the condition, but on account of the deficient blood supply would be dangerous; and that on account of the condition of the leg, petitioner was permanently, totally disabled and incapable of performing manual labor (which was the only gainful occupation he was skilled to follow). On a subsequent hearing, Dr. Gaw examined petitioner in Court before the Trial Judge and pointed out a rash which had developed, not only on the injured right leg, but on the left. The doctor testified that this rash was a symptom of atrophy and that evidence of the rash on the left leg supported the testimony that he had given eight months before, that the atrophy was progressive. The legal importance of this last testimony on this appeal is that it furnished material evidence that the result of the accident and injury were not confined to the right leg.

So far as the application of the statute to the facts and the fixing of the amount of the award are concerned, the case is identical with Plumlee v. Maryland Casualty Co., 184 Tenn. 497, 201 S.W.2d 664. There the injury was to the leg which was not amputated but rendered useless, and in his testimony, one of the doctors refused to limit the result of the injury to the leg. We approved an award based on loss of earning capacity and not limited to the lump sum for 'loss or loss of use' of a leg. The same basis for award was used in Hix v. Cassetty, 187 Tenn. ----, 210 S.W.2d 481.

Since Dr. Gaw testified that the atrophy was progressive and spreading from the injured leg to other parts of the body, there was evidence that the injury was not confined to the leg, but since the loss of the use of the right leg resulted in permanent total disability to follow the only gainful occupation for which the petitioner was trained or suited, this disability alone, justified the award. In the original Workmen's Compensation Act Chapter 123, Public Acts of 191...