McKinney v. Feldspar Corp.
Decision Date | 23 February 1981 |
Citation | 612 S.W.2d 157 |
Parties | Hayden C. McKINNEY, Plaintiff-Appellee, v. FELDSPAR CORPORATION, Defendant-Appellant. |
Court | Tennessee Supreme Court |
James S. Pate, Erwin (Paul J. Sherwood, Erwin, of counsel), for plaintiff-appellee.
Michael J. Hickie, Johnson City (Weller, Miller, Carrier & Miller, Johnson City, of counsel), for defendant-appellant.
This is a worker's compensation case. The Chancellor awarded benefits for permanent total disability, finding that the plaintiff suffers permanent total disability from silicosis contracted from the breathing of silica dust while employed in the Feldspar mine of the defendant.
The principal issue raised by the defendant is that the statute of limitations of one year, T.C.A., § 50-1017, ran prior the the filing of the plaintiff's suit on November 28, 1978.
The plaintiff contends that he was not aware of his cause of action until he was clearly and unequivocally informed by his physician, Dr. Nat Hyder, on November 11, 1978, that he suffered from silicosis which was brought about by his breathing of silica dust while employed from 1954 to 1962 in the mine operated by the defendant. The defendant asserts, however, that the plaintiff knew that he had a compensable disease on November 11, 1977, when he was examined by Dr. C. P. Cole. The Chancellor found this issue in favor of the plaintiff, so that, the question before us is whether there is any material evidence to uphold that finding.
The rule established by our decisions is that the statute of limitations does not begin to run in cases of occupational disease until the disease manifests itself in an incapacity for work by the employee and the employee acquires actual or constructive knowledge from a medical expert that he in fact suffers from the occupational disease and that it arose out of and in the course of his employment. Consolidation Coal Company v. Brown, 225 Tenn. 572, 474 S.W.2d 416 (1971); Tennessee Products & Chemical Corp. v. Reeves, 220 Tenn. 148, 415 S.W.2d 118 (1967); Christopher v. Consolidated Coal Company, 222 Tenn. 727, 440 S.W.2d 281 (1969).
Dr. Cole's testimony concerning his diagnosis of the plaintiff's condition in November, 1977, and his explanation thereof, if any, to the plaintiff, was ambiguous and equivocal. For example:
Cross examination:
The plaintiff, McKinney, testified that on the occasion of his examination by Dr. Cole in November, 1977, that the Doctor remarked to him "Did you know you have dust?" To which plaintiff replied "No, Sir, I don't think I've got any dust." He testified that Dr. Cole never stated to him that he suffered from silicosis or that he suffered from any disease contracted while employed in the defendant's mine. He denies that he had any knowledge that he suffered from silicosis and that it was contracted during his work for the...
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...and work related cause of the disease." Taylor v. J.P. Stevens Co., 300 N.C. 94, 265 S.E.2d 144 (1980); see also McKinney v. Feldspar Corp., 612 S.W.2d 157 (Tenn.1981); Fulks v. Avondale Shipyards, Inc., 637 F.2d 1008 (5th Cir.1981), cert. denied 454 U.S. 1080, 102 S.Ct. 633, 70 L.Ed.2d 613......
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