Columbia Construction Co. v. Sims

600 S.W.2d 706, 1980 Tenn. LEXIS 462
CourtTennessee Supreme Court
DecidedMarch 31, 1980
StatusPublished

This text of 600 S.W.2d 706 (Columbia Construction Co. v. Sims) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Columbia Construction Co. v. Sims, 600 S.W.2d 706, 1980 Tenn. LEXIS 462 (Tenn. 1980).

Opinions

OPINION

FONES, Justice:

This is a workmen’s compensation action in which the only issue is whether the disease that has caused appellee’s disability is compensable as an “occupational disease” under T.C.A. § 50-1101 as it existed in March 1977.1

[707]*707The facts are not in dispute. Appellee was employed by appellant from April 1976 until March 1977 as a welder on a job site at the Monsanto Chemical Company in Columbia. In the course of his employment, ap-pellee was regularly exposed to phosphorous smoke containing P205. On two occasions appellee was engulfed by the smoke for approximately ten minutes. The first incident occurred in December 1976, and appellee suffered a reaction in which he experienced shortness of breath and burning chest pain. These symptoms persisted, and on January 25, 1977, he sought medical treatment from his family physician. Ap-pellee returned to work and on March 8, 1977, was again engulfed in the phosphorus smoke. He suffered a more severe reaction to this exposure and was hospitalized and diagnosed as suffering from pneumonia.

The symptoms of pneumonia persisted, and on April 12, 1977, appellee was examined by Dr. Gerald Halprin, a specialist in lung disorders. Under Dr. Halprin’s treatment the symptoms of pneumonia gradually disappeared over a five month period, but appellee continued to suffer breathing difficulties. Upon further testing, Dr. Halprin discovered that appellee was deficient in the enzyme Alpha I Antitrypsin. Such a deficiency usually leads to a rare form of genetic emphysema. X-rays and other pulmonary function tests confirmed the diagnosis of emphysema.

Since his exposure to the phosphorus smoke on March 9, 1977, appellee has been unable to return to work. Appellee filed for workmen’s compensation benefits claiming that he suffered from an occupational disease. Appellant has refused to pay ap-pellee’s claim for permanent total disability, and such action resulted in this lawsuit.

The trial judge found that appellee is totally disabled from emphysema and that the emphysema resulted from breathing phosphorus smoke in the scope and course of his employment by appellant. Additionally, the court found:

“The plaintiff’s emphysema was not an occupational disease as set out in T.C.A. § 50-1101 as it existed in March of 1977. There is no medical evidence that emphysema is so closely related to one of the named occupational diseases in T.C.A. § 50-1101 that it should also be considered an occupational disease. There is no medical evidence that emphysema produced pathological effects in the plaintiff or produces pathological effects in any other person, which are substantially the same as those pathological effects resulting from one of the named occupational diseases in T.C.A. § 50-1101. There is no medical evidence that the plaintiff's emphysema was caused by a particular hazard of his employment which was known to also cause one of the named occupational diseases in T.C.A. § 50-1101.”

Instead of dismissing the claim, however, the trial judge awarded benefits for permanent total disability. The learned judge reasoned that because this Court in Martin Brothers Container & Timber Corp. v. Lynch, 551 S.W.2d 687 (Tenn.1977), had found material evidence to support an award of benefits to a claimant who suffered from emphysema that arose out of and during the course of her employment, emphysema was judicially established as an occupational disease.

In this appeal appellant asserts that no material evidence exists to support a finding that appellee’s emphysema is closely related to any of the occupational diseases listed in T.C.A. § 50-1101. Appellant also asserts that the trial judge erred in relying [708]*708on Martin Brothers for the proposition that emphysema was judicially established as an occupational disease in all cases.

At the time relevant to this cause of action, emphysema was not one of the occupational diseases listed in T.C.A. § 50-1101. To recover workmen’s compensation benefits for an alleged occupational disease not listed in the statute, the claimant must present evidence sufficient to satisfy the test outlined by this Court in American Insurance Co. v. Ison, 519 S.W.2d 778 (Tenn.1975):

“[I]f the alleged occupational disease is not one of those named in T.C.A., Section 50-1101, it must be established by medical or other appropriate expert witnesses that it is so ‘closely related’ to one of the named occupational diseases that it too, should be considered ‘occupational.’ By ‘closely related’ we mean (1) that the disease produces pathological effects in the employee which are substantially the same as those resulting from one of the named occupational diseases and (2) the disease in question is caused by the particular hazards of the employment which are known to also cause one of the named occupational diseases.” Id. at 781.

Two medical experts testified on behalf of appellee: Dr. Gerald M. Halprin, the treating physician, and Dr. J. Vance Fen-tress, who testified as an expert in internal medicine. Doctor Fentress testified that the subjective symptoms of emphysema, i. e., coughing, shortness of breath, and limited tolerance for activity, were “closely akin” to the subjective symptoms of silicosis, coal workers pneumoconiosis, and asbestosis. However, when questioned about the pathological effects, neither physician could state that emphysema was similar to any of the statutory occupational diseases. Moreover, from our review of the record we have found no material evidence stating that phosphorous smoke containing P2O5, the hazard to which appellee was exposed, causes any of the occupational diseases listed in T.C.A. § 50-1101. We agree with the trial judge’s findings that appellee has provided no material evidence to satisfy either of the requirements specified in the Ison decision for proving that emphysema is closely related to a named occupational disease.

The sole remaining question is what effect this Court’s decision in Martin Brothers Container & Timber Corp. v. Lynch, supra, should have on the instant case. In Martin Brothers the issues of both fact and law were hotly contested.

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Related

American Insurance Company v. Ison
519 S.W.2d 778 (Tennessee Supreme Court, 1975)
Martin Bros. Container & Timber Corp. v. Lynch
551 S.W.2d 687 (Tennessee Supreme Court, 1977)

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Bluebook (online)
600 S.W.2d 706, 1980 Tenn. LEXIS 462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/columbia-construction-co-v-sims-tenn-1980.