McKenzie v. Campbell & Dann Mfg. Co.

• Decision Date: 08 February 1962
• Citation: 13 McCanless 475,354 S.W.2d 440,209 Tenn. 475
• Parties: , 209 Tenn. 475 James W. McKENZIE v. CAMPBELL AND DANN MANUFACTURING COMPANY et al.
• Court: Tennessee Supreme Court

Page 440

354 S.W.2d 440

13 McCanless 475, 209 Tenn. 475

James W. McKENZIE v. CAMPBELL AND DANN MANUFACTURING COMPANY et al.

Supreme Court of Tennessee.

Feb. 8, 1962.

Thomas A. Wiseman, Jr., Tullahoma, for petitioner.

Henry, McCord & Forrester, Tullahoma, for respondents.

WHITE, Justice.

This is a proceeding under the Workmen's Compensation Law and from the action of the Chancellor all parties have appealed.

The record discloses that on or about November 16, 1959 James W. McKenzie sustained an accidental injury to his ankle and leg which grew out of, and in the course of, his employment while working in the plant of the defendant, Manufacturing Company. McKenzie was working on a packing bench when he stumbled and fell and as a result of such fall he received severe injuries to his ankle and leg and his entire nervous system according to his petition. Immediately after the happening of said accident he went to the offices of Drs. Galbraith and Snoddy in Tullahoma where he was examined and treated. Thereafter he was treated by several doctors and finally was hospitalized on September 18, 1960 for a period of eight days and underwent an operation for the severance of nerves feeding his leg and other surgical procedures to reinstate the circulation in his leg and ankle which had been cut off as a result of his accident and injury. The employer, acting through its insurance carrier, the defendant Travelers Insurance Company, made voluntary payments to the petitioner for temporary total disability from the date of the injury through June 22nd, 1960, at which time they were discontinued but they were resumed on September 19th, 1960, the date of the operation, and such payments were continued through January 1, 1961, at which time a final settlement based upon twenty-two (22%) percent permanent partial disability to the leg was offered petitioner and refused by him. McKenzie in his original petition seeks to recover compensation for permanent total disability or such degree of lesser disability to the body as a whole as the Court in its discretion may determine from the proof in the case.

The defendants filed an answer in which they admitted that the petitioner had sustained an accidental injury growing out of and in the course of his employment and that the payments for temporary total disability were made as alleged in the petition, but denied that the petitioner is entitled to an award of permanent total disability but avers on the contrary that he is entitled to receive compensation based upon twenty (20%) percent permanent partial disability to his left leg. At the hearing the defendants amended their answer to admit liability to the extent of twenty-five (25%) percent to the body as a whole. The defendants expressly denied, however, that the entire nervous system was injured as a result of said accident.

A number of doctors treated the petitioner, and their testimony was received by the Court either orally or by deposition. The Chancellor stated that the testimony of Mrs. McKenzie and Hince Sain with reference to the extent of the disability of the petitioner did not aid the Court to any great extent and that the testimony of the petitioner as to his condition was largely reflected in the medical testimony. The Court stated that the determination of the real question depends, as in many such cases, almost wholly upon the testimony of the doctors who are witnesses in the cause. (Emphasis supplied.) This statement did not mean that the Court rejected the testimony of the lay witnesses, including the petitioner, about the extent of his disability but it only indicated that the Chancellor placed a greater reliance upon and gave more weight to the testimony of the doctors in making his final decision that he did to the lay witnesses.

The rule in this State in that a lay witness may testify to his own physical condition or that of another person provided that the witness first states the detailed facts and then gives his opinion or conclusion. Norton v. Moore, 40 Tenn. 480; Stephens v. Clayton, 22 Tenn.App. 449, 124 S.W.2d 33; Hamlin & Allman Iron Works v. Jones, 200 Tenn. 242, 292 S.W.2d 27.

In the case of Hamlin & Allman Iron Works v. Jones, supra, it was stated--'the court will evaluate the testimony of a lay witness with reference to whether such witness has stated any material facts that justify the witness' conclusion to which he testifies'. The record shows that the Court did give consideration to the testimony of lay witnesses in this case, but concluded that such testimony was not of great benefit to him in deciding the issues involved. We think the Court was correct.

As set out in the brief of petitioner the testimony of the several doctors may be summarized as follows:

(1). Dr. Arnold Haber testified by deposition on May 12, 1961 that the petitioner suffered a permanent partial disability of twenty (20%) to twenty-five (25%) percent to the left lower extremity. On re-examination on June 3rd, 1961 Dr. Haber raised his estimate of permanent partial disability to twenty-five (25%) percent of the body as a whole.

(2). Dr. James Kirtley estimated the permanent partial disability of the petitioner as of December 16th, 1961 as twenty (20%) to twenty-five (25%) percent of the body as a whole.

(3). Dr. Howard Farrar estimated the permanent partial disability of the petitioner to be fifty (50%) to sixty (60%) percent of the body as a whole.

(4). Dr. Henry Brackin, Sr., a psychiatrist, estimated the disability of petitioner to be one hundred (100%) percent with the possibility of improvement to seventy-five (75%) percent of the body as a whole.

(5). Dr. Jack T. Farrar was not asked for a percentage figure, but testified that petitioner was unable to perform any job requiring manual labor or physical exertion.

Based upon all the testimony in the case the Chancellor held that the petitioner sustained an injury or injuries growing out of and in the course of his employment resulting in a permanent disability of fifty (50%) percent to the body as a whole.

In the case of Anderson v. Volz Const. Co. et al., 183 Tenn. 169, 191 S.W.2d 436, the Court said:

'On appeal under Workmen's Compensation Act, Supreme Court does not reweigh evidence, but searches record only so far as necessary to determine whether there is material evidence to support finding of trial judge, who finally determines weight of evidence and witnesses' credibility.'

No one could find fault with the statement that the record in this case reveals material evidence to support the finding of the Trial Judge. Therefore, we affirm his action in determining that the petitioner has suffered a permanent partial disability of fifty (50%) percent to his body as a whole.

In the case of Claude Henninger Company v. Bentley, 205 Tenn. 241, 326 S.W.2d 446, the Court held:

'If an employee receives an injury that is enumerated in the statute (that is an injury to a member of his body compensation for which is specifically scheduled) and this injury affects his body as a whole, a recovery may be had for either total permanent disability or permanent partial disability.'

The Chancellor found that the petitioner had suffered a fifty (50%) percent permanent partial disability to the body as a whole. There was proof in the record that the petitioner was earning as much or more at the time of the hearing of this cause as he had been earning at the date of his injury. The question, however, is not what the petitioner happened to have been earning at the time of the trial of this cause, but what he is able to earn in his disabled condition on the open labor market. This reasoning was adopted by the Court in Greeneville Cabinet Company v. Ramsey, 195 Tenn. 409, 260 S.W.2d 157, and which we believe to be sound in principle and which we reaffirm.

The defendants contend that the allegation in the original petition to the effect that the accident had severely injured his ankle, leg and his entire nervous system was not a sufficient averment to permit testimony that the petitioner was suffering from traumatic neurosis.

Dr. Brackin testified that his practice is in the general field of psychiatry. In his long experience in the medical practice he has specialized in diagnosis and treatment of all kinds of nervous and mental diseases. He states that the petitioner is suffering from a post-traumatic neurosis which is a nervous condition resulting from an accident. In examining the testimony of Dr. Brackin we are fully convinced that a diagnosis of post-traumatic neurosis is an injury to the nervous system.

The American Illustrated Medical Dictionary, Eleventh Edition, revised and enlarged, defines neurosis as 'a nervous disease: more especially a functional disorder of the nervous system; a disorder of the nervous system not dependent on any discoverable lesion.' 'The component parts of the nervous system include the brain and spinal cord, the ganglia of the central nervous system, the peripheral nerves and the sympathetic nervous system.' 2 Gray, Attorneys' Textbook of Medicine, Sec. 107.03, p. 1187.

Again in Webster's Third New International Dictionary Unabridged neurosis is defined as 'a functional disorder of the central nervous system'.

Therefore, a traumatic or posttraumatic neurosis is one that is occasioned by or results from an accident to the nervous system. The general averment that the petitioner had suffered an injury to his entire nervous system, although general in terms, is sufficient to put the defendants upon notice of the claim of the petitioner. In their answer they say 'defendants deny that petitioner's leg and entire nervous system were injured', which shows beyond question they had notice of the claim of the petitioner.

One medical witness in describing the injury sustained by the petitioner used the words 'unstable nervous system'. The defendants made no objection to the medical testimony relating to this averment of the...