Osborne v. Burlington Industries, Inc., Klopman Div.

• Citation: 672 S.W.2d 757
• Parties: James Glen OSBORNE, Plaintiff-Appellee, v. BURLINGTON INDUSTRIES, INC., KLOPMAN DIVISION, Defendant-Appellant.
• Decision Date: 25 June 1984
• Court: Tennessee Supreme Court

Page 757

672 S.W.2d 757

James Glen OSBORNE, Plaintiff-Appellee, v. BURLINGTON INDUSTRIES, INC., KLOPMAN DIVISION, Defendant-Appellant.

Supreme Court of Tennessee at Knoxville.

June 25, 1984.

Thomas R. Grayson, George T. Wright, Mountain City, for defendant-appellant.

Dean Greer, Kingsport, for plaintiff-appellee.

OPINION

DROWOTA, Justice.

This worker's compensation action was filed by James Glen Osborne, Appellee, to recover benefits for a back injury which he received while employed by Appellant, Burlington Industries, Inc., Klopman Division. The trial judge found that Mr. Osborne suffered a continuing or gradual injury which originated on July 10, 1980, that proper notice of the injury was timely given to Burlington and that the action was filed within the statute of limitations. Mr. Osborne was awarded temporary total disability from January 22, 1983, to May 12, 1983, permanent partial disability to the body as a whole which was commuted to one lump sum, and medical expenses which he incurred as a result of the injury. Burlington Industries raises three issues on appeal to this Court: (1) whether timely notice of the injury was given; (2) whether the action is barred by the statute of limitations; (3) whether material evidence supports a finding that the injury arose out of and in the course of Mr. Osborne's employment.

At the time of his injury, Mr. Osborne was employed by Burlington Industries as a "doffer packer," a job that required continuous lifting and twisting. On July 10, 1980, while performing his normal duties, he experienced a sharp pain in his back. He immediately informed his supervisor who took him to the aid station where he was treated with heat and aspirin. Subsequent to the injury, Mr. Osborne was seen by his personal physician, Dr. Donald Tarr, who prescribed "muscle relaxers." He was seen on occasion by both Dr. Tarr and Dr. Kahn at Veteran's Administration Hospital to determine the nature of his back injury. Although the acute symptoms of his injury subsided following the July 10, 1980, incident, Mr. Osborne nevertheless developed pain in his legs and pain in his back.

Notwithstanding his condition, Mr. Osborne continued to work. He discussed his condition with his new supervisor who occasionally assigned him lighter work and also treated him at the Burlington Industries aid station. Over a period of time, his condition gradually deteriorated and he was again referred to the Veterans's Administration Hospital by Dr. Tarr in January, 1983. He was initially seen by Dr. Kahn who then referred him to Dr. John Barwick, Chief of Orthopedics. On January 19, 1983, Dr. Barwick diagnosed Mr. Osborne as having a ruptured disc and recommended immediate hospitalization.

Mr. Osborne was admitted to the Veteran's Administration Hospital on Saturday, January 22, 1983. He did not enter the hospital immediately because he did not want to miss work and Burlington Industries was closed down during the week following the day he entered the hospital. He was subsequently transferred to the hospital in Durham, North Carolina where a myelogram was performed on January 26, 1983. The results of the myelogram confirmed Dr. Barwick's diagnosis and Mr. Osborne underwent surgery on February 2, 1983.

At the time of his discharge on February 10, 1983, Mr. Osborne was considered one hundred percent disabled until his follow-up evaluation; however, his doctors informed him that he could expect to return to his former job in four to six weeks. He did not improve as expected, and on May 11, 1983, he was advised for the first time that he had a permanent back injury. On June 20, 1983, he filed this cause of action.

Regarding the question of notice, Burlington Industries argues that the initial notice of the injury on July 10, 1980, was inadequate. Burlington takes the position that Mr. Osborne had thirty days from January 21, 1983, his last day of work, in which to give notice. It is undisputed, and the trial judge found, that Mr. Osborne gave notice of his initial injury to his supervisor on July 10, 1980. The trial judge also found that the injury was of a continuous or gradual nature and that Mr. Osborne's condition deteriorated after July 10, 1980. The question remains whether the notice given on July 10, 1980 satisfied the notice requirements under our worker's compensation law.

The statutory provision that covers notice of injuries, T.C.A. Sec. 50-6-201, provides in pertinent part:

Every injured employee or his representative shall, immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, give or cause to be given to the employer who has not actual notice, written notice of the injury.

There is no question that Mr. Osborne informed his supervisor of the pain he experienced on July 10, 1980. He also discussed his back condition with his new supervisor who assigned him less strenuous work and even treated him at the aid station.

In Quaker Oats Co. v. Smith, 574 S.W.2d 45 (Tenn.1978), this Court addressed...