Combustion Engineering Co. v. Blanks

357 S.W.2d 625, 210 Tenn. 233, 14 McCanless 233, 1962 Tenn. LEXIS 428
CourtTennessee Supreme Court
DecidedFebruary 8, 1962
StatusPublished
Cited by1 cases

This text of 357 S.W.2d 625 (Combustion Engineering Co. v. Blanks) 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
Combustion Engineering Co. v. Blanks, 357 S.W.2d 625, 210 Tenn. 233, 14 McCanless 233, 1962 Tenn. LEXIS 428 (Tenn. 1962).

Opinion

Mr. Justice White

delivered the opinion of the Court.

From an award to Blanks against his employer, Combustion Engineering Company, for injuries alleged to have been received while doing work for employer, it has appealed, on the theory that the case does not fall within the Workmen’s Compensation Law. Blanks also appeals.

Blanks had been working for employer between six and seven years without material event before the happening of the events upon which this suit is grounded. At that time cleaning up was his job. That is, it was his duty to “throw(ing) up fittings”, “and the other one moving pigs”. This was a faulty material which could not be used in employer’s production because of too much [235]*235iron therein. The material thus handled by Blanks as clean up man in the yard weighed from twenty-five pounds up. The “pig” important here weighed approximately seventy-five pounds.

On February 21, 1958, while lifting some of this material, Blanks experienced a sharp pain in his low back. His pain was such as to cause a short absence from work and a short confinement in the hospital. He returned to work about the middle of April, and was out for two or three weeks, part of this period being his vacation time.

On May 21st, while picking up a pig of about seventy-five pounds weight, he experienced a sharp pain in his back located “at about L4 & L5” of the vertebrae. He was immediately sent to the hospital, where from time to time he was examined by some eight or nine specialists in the medical field. Blanks himself did on June 17th become aware of a mass or lump in his abdomen. It was found to be a “cold abscess”. This led to further diagnosis, and it was finally correctly found, and all so agree, that Blanks was suffering from tuberculosis of the back at the 4th and 5th vertebrae. An operation was performed for a fusion of L4 and L5 vertebrae.

The questions involved, as stated by the Trial Judge, are:

“(1). Was petitioner’s existing tuberculosis aggravated by an injury?
“ (2). If so, is the traumatic aggravation of an otherwise non-compensable disease (tuberculosis) compen-sable? and
[236]*236“(3). If the disease was aggravated and is compen-sable did the aggravation canse Ms present disability and to Avbat extent?”

The Court answered (1), (2) and (3) in the affirmative, and (4) that the permanent disability to the body as a whole is thirty (30%) percent. Judgment for temporary total disability and for permanent partial disability was then entered.

The insistence of employer is that it would be impossible for the tubercular condition or this pus sac to have been aggravated by trauma, — the injury occurring on May 21, 1958. It asserts that the doctors so testify and says an opposite conclusion is pure conjecture and speculation.

The insistence of Blanks is to the contrary. While the several doctors who testified are in disagreement in many respects, there is ample evidence furnished by some of them to support the insistence of Blanks and the finding of the Court.

Dr. Frere’s testimony is that in the case of a lung condition and so forth, “if the infection is there, you can aggravate that sometimes ’ ’, that from the x-rays of March 14 “it would be medically possible that the condition which he observed was latent” and that “by looking at the later x-rays which you hold in your hand” it was “medically possible for there to have been an intervening trauma at L-4 and L-5 activated a pre-existing tuberculosis which caused the condition which is shown in your x-rays. * * *” “If the infection is there, you can aggravate that sometimes”. It is medically possible that “any trauma can aggravate any condition”. The trauma [237]*237was the twisting of the body in lifting and throwing up the seventy-five pound “pig”.

Dr. Bogart testified that while tuberculosis “is usually a progressive disease, sometimes it remains latent in the body” and that “trauma can aggravate it”, and that a latent tuberculosis may flare up as a result of trauma. “And doctor, would it not be an aggravation * * * if it did pre-exist for a man to be on the job and pick up fifty pounds of steel or iron?” Answering this question in the affirmative, and responsive to the question, he said that the picking up of the iron and steel weighing fifty pounds would “ be a trauma to that area which would aggravate it * * *” and “is it not likely that this trauma which he feels by pain is more likely to manifest itself in an aggravating condition than one which did not come to his attention? A. Yes, I expect thats true.” (Emphasis is supplied.)

To Dr. Adams there was recited the evidence herein before recited. He was then asked if these conditions could have “activated and aggravated by the traumatic injury of May 21, 1958”. He answered:

“I would say in my opinion that the process all along was probably a low grade latent tuberculosis, which might have been well, lit up or caused to be activated or re-activated by sustaining an injury. That is possible.”

And that in the absence of trauma, an inactive low grade tubercular lesion “could be carried * * * without incident or clinical recognition throughout his life”, and that under the evidence in this case such “is possible” had there been no trauma.

[238]*238When Dr. Shelton was asked whether trauma can “aggravate tuberculosis of the bone”, he replied: “Sure, yes.” And futher this:

“Assuming, Doctor, that that cage of bacilli are lodged at L-4 and L-5 and that trauma occurred, Is there any possibility that that trauma could reactivate this latent disease?”

The doctor answered: — “Well, we’ve already said that we thought trauma could definitely aggravate it. There’s no question about that.”

Dr. Hampton testified that “I think that any trauma would aggravate any tuberculosis”. He further testified that work which required a considerable amount of bending, and lifting material weights of metal and “felt a pain at L-4 and L-5”, while so doing, “put increased pressure on that area and damaged it”; and he “would call that aggravation of a pre-existing lesion ’

It was the testimony of Dr. Wood that the May 21st trauma could have aggravated the tubercular condition of the back at L-4 and L-5 whether prior thereto the tubercular disease there was active or inactive.

That an expert’s opinion that a certain accident “could or might” produce the injury for which Workmen’s Compensation is sought is competent is so well established by numerous cases as to seem to make it pedantic to cite authorities in support of the admissibility of such evidence. The brief of Blanks cites, among others, Sanders v. Blue Ridge Glass Corp., 161 Tenn. 535, 33 S.W.2d 84. It would be idle to cite other decisions in support of this well established principle of law.

It is further in evidence that Blanks was apparently a strong man, thirty odd years of age, and worked for [239]*239employer here for more than six years.

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Related

Ward v. Commercial Insurance Co.
372 S.W.2d 292 (Tennessee Supreme Court, 1963)

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Bluebook (online)
357 S.W.2d 625, 210 Tenn. 233, 14 McCanless 233, 1962 Tenn. LEXIS 428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/combustion-engineering-co-v-blanks-tenn-1962.