Tennessee Products & Chemical Corp. v. Reeves

• Decision Date: 20 April 1967
• Citation: 415 S.W.2d 118,24 McCanless 148,220 Tenn. 148
• Parties: , 220 Tenn. 148 TENNESSEE PRODUCTS & CHEMICAL CORPORATION, Plaintiff in Error, v. Fredell REEVES, Defendant in Error.
• Court: Tennessee Supreme Court

Page 118

415 S.W.2d 118

24 McCanless 148, 220 Tenn. 148

TENNESSEE PRODUCTS & CHEMICAL CORPORATION, Plaintiff in Error, v. Fredell REEVES, Defendant in Error.

Supreme Court of Tennessee.

April 20, 1967.

A. Allan Kelly, South Pittsburg, Kelly & Cameron, South Pittsburg, of counsel, for plaintiff in error.

William M. Ables, Jr., South Pittsburg, for defendant in error.

OPINION

DYER, Justice.

This case presents the issue of determining the beginning date of the one year statute of limitations in Workmen's Compensation Cases involving occupational diseases.

T.C.A. Sec. 50--1108 provides as follows:

The right to compensation for occupational disease shall be forever barred unless suit therefor is commenced within one (1) year after the beginning of the incapacity for work resulting from an occupational disease, and if death results from the occupational disease, unless a suit therefor be commenced within one (1) year thereafter; provided, however, that if upon the date of the death of the employee the employee's claim has become barred, the claim of his dependents shall likewise be barred, and in such case the claim shall be barred whether or not the employer gives the notice required by subsection (2) of Sec. 50--1017.

It is clear there could be a different application of this statute where the employee died from an occupational disease, than the application to be given the statute where death did not result. In the case, sub judice, death did not result and this opinion is only concerned with the application of the statute on that basis.

Pertinent to this matter is that part of T.C.A. Sec. 50--1105 as follows:

* * * the partial or total incapacity for work or the death of an employee resulting from an occupational disease as herein listed and defined shall be treated as the happening of an injury by accident * * *.

In Adams v. American Zinc Co., 205 Tenn. 189, 326 S.W.2d 425 (1959) this Court in regard to these two statutes said:

Such beginning of incapacity is the happening of the 'injury' within the meaning of Section 50--1105. The right to bring suit commences with the happening of the injury. So the expression 'beginning of the incapacity', Section 50--1108, carries necessarily the same meaning as 'the happening of the injury'. Section 50--1105, T.C.A.

In the case of Holeproof Hosiery Co. v. Wilkins, 194 Tenn. 683, 254 S.W.2d 973 (1952) in regard to the statute here at issue this court said:

The statute is not tolled as of the date of the commencing of the disease, for that would be impossible to determine with any degree of accuracy, but is tolled at the beginning of 'incapacity for work'. * * * the Legislature did not intend to burden the injured employee with the duty of proving when a compensable injury 'commenced' for in many cases no one could say when his right of action actually accrued, i.e. his 'incapacity for work.'

On the issue here the holding in the Holeproof Hosiery case is negative in nature. It does not determine the beginning date of the statute; but does hold the commencing of the disease is not in and of itself the beginning date.

The case of Wilson v. Van Buren County, 196 Tenn. 487, 268 S.W.2d 363 (1954) involved an employee suffering an 'incapacity for work.' In this case the court held the employee would be required to exercise ordinary care to determine the cause of his 'incapacity to work.'

In Brown Shoe Company v. Reed, 209 Tenn. 106, 350 S.W.2d 65 (1961) this court stated the rule in the following language:

Under our statute, covering these occupational diseases, the statute of limitations commences to run when the accumulated effects of the latent disease culminate in a disability which is traceable to such disease as the primary cause and which is apparent to the employee or could have been discovered by the exercise of reasonable care and diligence.

It results before the statute of limitations in occupational disease cases begins to run there must be: First, an incapacity for work; Second, either actual or constructive knowledge an occupational disease is the cause of the incapacity for work. In relating the incapacity for work to the disease an employee is required to exercise reasonable care and diligence; and if he does not he could be charged with constructive notice.

In the case, sub judice, the trial court made an award to the employee for the occupational disease of silicosis. The issue is whether the employee exercised reasonable care and diligence in discovering he suffered from this disease, which necessitates a review of the evidence on this point.

Employee worked for employer for a number of years, as a coal miner, until discharged due to reduction in work force in May 1960. Employee at this time was in apparent good health. In March or April 1963 employee noticed a shortness of breath, when working, but did not seek medical aid. In the fall of 1963 employee made application to the...