Oliver v. State

• Decision Date: 05 December 1988
• Citation: 762 S.W.2d 562
• Parties: William Wayne OLIVER, Jr., Plaintiff/Appellant, v. STATE of Tennessee, Defendant/Appellee. 762 S.W.2d 562
• Court: Tennessee Supreme Court

Page 562

762 S.W.2d 562

William Wayne OLIVER, Jr., Plaintiff/Appellant, v. STATE of Tennessee, Defendant/Appellee.

762 S.W.2d 562

Supreme Court of Tennessee at Knoxville.

Dec. 5, 1988.

John T. McArthur, Kizer & Black, Maryville, for plaintiff/appellant.

Charles W. Burson, Atty. Gen., and Reporter, George H. Coffin, Jr., Asst. Atty. Gen., Nashville, for defendant/appellee.

OPINION

DROWOTA, Justice.

In this appeal of a workers' compensation action from the Tennessee Claims Commission, the Plaintiff/Appellant, William Wayne Oliver, Jr., contends the Commissioner erred in denying him benefits on the basis that he failed to demonstrate he had an existing earning capacity which was diminished when his work-related disability appeared. Two primary issues were presented to the Commissioner: (1) whether the statute of limitations bars recovery, and (2) whether compensation should be determined by the schedule of benefits in effect at the time of the accident, 1965, or by the schedule in effect at the time the disability became apparent, 1985. The Commissioner found in favor of the Appellant on the statute of limitations issue. The Commissioner did not reach the second issue because he found that Appellant failed to demonstrate that he had an existing earning capacity which was diminished when his work-related disability appeared.

The Appellant, William Wayne Oliver, Jr., began working with the Tennessee Game and Fish Commission (the predecessor to the Tennessee Wildlife Resources Agency) in 1963 at the age of 24. Appellant was a wildlife enforcement officer and on March 23, 1965, he was checking trout stamps, fishing licenses and limits in the valley of the three forks of Wolf River in Fentress County. He started down to the river's edge to check a fisherman's license and trout stamp and "slipped and fell and just took a header, bounced off a rock and landed out in a deep hole of water...." As a result of this fall, Appellant sustained a compound fracture to his left wrist and arm. At the time of the accident, a timely report was made to Appellant's immediate supervisor. After the accident, Appellant drove himself to the emergency room at Jamestown, Tennessee, where he was hospitalized and received treatment from Dr. Jack Smith, who set his broken wrist. Appellant returned to the hospital a few days later at Dr. Smith's request because an x-ray taken after the setting of the wrist indicated it had not been properly set. Appellant was placed under general anesthesia and the wrist was re-broken and re-set. As events later indicated, it appears that the doctor did not set the wrist correctly the second time. After wearing a cast for a few weeks, it was removed and the Appellant went about his normal duties without difficulty from the injury. Appellant returned to work and nothing led him to believe that he had any permanent damage as a result of the fracture. The record reveals that at the June 17, 1965 meeting of the Board of Claims, the Board approved payment of $90 to Dr. Jack Smith and $114 to Fentress County General Hospital. Plaintiff never received any compensation as a result of the accident.

In June 1966, the Appellant accepted a position with the U.S. Treasury Department as a special agent with the Bureau of Alcohol, Tobacco and Firearms assigned to the Americus, Georgia office. In the Spring of 1967, the Plaintiff suffered a bad injury to his back when he fell off a cliff while moving through the woods in an effort to capture a criminal. After recovery, he returned to work, but later suffered an automobile accident in which his vehicle was rear-ended by a large truck, which accident aggravated his back injury. After recovery from these injuries, Appellant returned to work with the Treasury Department and continued to work there until 1974 when his supervisor determined that his physical condition would possibly present a danger to his fellow officers. He was asked to retire. Despite his wishes to the contrary, Mr. Oliver was prevailed upon by his supervisors and he retired under civil service disability. Appellant has not worked since January of 1974.

In the Spring of 1985, Appellant's wrist began to throb and twinge with pain and became swollen and red. Appellant testified that the pain radiates into the hand and affects the function and use of the hand. He stated that the wrist hurts most of the time and he takes aspirin for it. Appellant testified that his wrist was never reinjured from the time he left his employment with the State. His wrist had not troubled him until the Spring of 1985. Appellant testified that the pain in his wrist limits his driving and interferes with minor household chores. He also stated: "I've lost half the use of the wrist and hand and arm at least." As a result of the problems he was experiencing, Appellant was examined by Dr. J.C. Serrato, an orthopedic surgeon in Columbus, Georgia. Dr. Serrato submitted a report dated June 7, 1985, which indicates Mr. Oliver has a permanent anatomical change and impairment of the left upper extremity which is equivalent to a 50% disability to the left wrist joint. Dr. Serrato stated that this condition cannot be improved, it is permanent and it requires no specific treatment at the present time. Dr. Serrato further stated the impairment had resulted from the residuals of an injury Mr. Oliver received on the job in 1965.

The Appellant filed a claim for workers' compensation benefits with the Tennessee Division of Claims Administration on January 31, 1986, for injuries arising from a work-related accident which occurred on March 23, 1965. The claim was denied on February 7, 1986, on the basis that the statute of limitations had run in that the Appellant had failed to file the claim within one year of the date of the accident. Mr. Oliver appealed this denial to the Tennessee Claims Commission on February 13, 1986. By order dated December 31, 1987, the Commissioner found the Appellant suffered an anatomical impairment which did not manifest itself until approximately 20 years after the injury and approximately 11 years after Mr. Oliver ceased working. The Commissioner further held that Appellant had filed within the one-year statute of limitations; however, he denied the claim on the basis that Mr. Oliver had not demonstrated an existing earning capacity which was diminished when the work-related disability appeared. The issue of whether the 1965 or 1985 schedule of compensation should be applied was, therefore, not addressed by the Commissioner.

I.

Plaintiff's injury occurred prior to the effective date of the 1985 amendment to the Workers' Compensation Act, which requires de novo review of the record in this Court, and is thus controlled by the material evidence standard of review. See Alley v. Consolidation Coal Co., 699 S.W.2d 147 (Tenn.1985). The review by this Court is, therefore, limited to a determination of whether there is any material evidence in the record to support the Commissioner's findings, not where the preponderance of the evidence lies. And, if there is any material evidence in the record to support the Commissioner's findings, we are bound to accept them. The Commissioner found: "[I]nasmuch as the Plaintiff filed his claim within one year from the date when the Plaintiff was first aware that he had a disability and was advised that the disability was related to the accident, the Plaintiff has filed within the one-year statute of limitations."

The State avers that Appellant's action is barred by the one-year statute of limitations set forth in T.C.A. Sec. 50-6-203 and Sec. 50-6-224. The State contends that workers' compensation benefits ought not to be awarded in a factual situation such as this one. Here, we have a situation where a permanent disability did not manifest itself until after the worker had terminated his employment with the State, obtained other employment for a period of some eight years, and retired from that employment for a completely unrelated cause. The State avers that it is difficult to see how the Appellant's permanent disability to the wrist can be said to arise out of and in the course of his employment when the same did not manifest itself until almost 20 years after the employer-employee relationship, which is the basis for liability, had been voluntarily terminated by the Appellant to seek other employment.

As noted by Justice Cooper in Hibner v. St. Paul Mercury Ins. Co., et al, 619 S.W.2d 109, 110 (Tenn.1981):

"The determination of the time the statute of limitations begins to run [in a workers' compensation case], often is troublesome, not from the standpoint of what triggers the running of the statute, but from a factual standpoint. It is now settled that the date the employee's disability manifests itself to a person of reasonable diligence, not the date of the accident, triggers the statute of limitations."

Plaintiff testified that nothing led him to believe that he had any permanent damage as a result of the fracture in March, 1965. It is undisputed that the disability did not manifest itself until the Spring of 1985, some 20 years after the accident. Until that time, Mr. Oliver had no problems or limitations with his wrist and arm and had no reason to expect or foresee any limitations or problems with his wrist and arm. It was not until the Spring of 1985 that he began to have swelling and severe pain in his wrist. The statute of limitations was not triggered until Mr. Oliver was examined by Dr. Serrato and learned he had a permanent anatomical change and impairment of the left upper extremity which was equivalent to a 50% disability to the left wrist joint. There is ample material evidence in this record to support...