Consolidation Coal Company v. Pride

452 S.W.2d 349, 224 Tenn. 188, 1970 Tenn. LEXIS 313
CourtTennessee Supreme Court
DecidedFebruary 16, 1970
StatusPublished
Cited by18 cases

This text of 452 S.W.2d 349 (Consolidation Coal Company v. Pride) 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
Consolidation Coal Company v. Pride, 452 S.W.2d 349, 224 Tenn. 188, 1970 Tenn. LEXIS 313 (Tenn. 1970).

Opinions

Mr. Justice Creson

delivered the opinion of the Court.

[191]*191This is an appeal, in a workmen’s compensation case, from the Chancery Court of Anderson County, Tennessee. That court awarded the employee, Howard Bryson Pride, workmen’s compensation benefits as against employer Consolidation Coal Company, for 85% permanent partial disability to the body as a whole, due to silicosis, an occupational disease. An additional 15% permanent partial disability was awarded as against the Second Injury Fund, due to a back injury which Pride had suffered earlier, which, together with the occupational disease, rendered him totally and permanently disabled. The Second Injury Fund has not appealed the award rendered against it, thus our consideration of this record is limited to the 85% award as against Consolidation Coal Company.

Hereinafter, the parties will be referred to as follows: The plaintiff in error, Consolidation Coal Company, as defendant; and defendant in error, Howard Bryson Pride, as petitioner.

On March 12, 1968, petitioner filed his suit seeking workmen’s compensation benefits for silicosis. Claim was also made against the Second Injury Fund for benefits due to a back injury.

On April 4, 1968, defendant filed its answer in which it offered the following defenses: (1) It is denied that petitioner was suffering from silicosis, (2) written notice was not given defendant as required under T.C.A. sec. 50-1107, and (3) even if petitioner does have an occupational disease, the claim is barred by the one year statute of limitations.

On April 9, 1969, a judgment was entered in favor of petitioner, awarding him 85% permanent partial disability to the body as a whole.

[192]*192Defendant made timely motion for new trial, which was overruled. An appeal was then perfected to this Court.

The assignments of error filed in this Court are as follows:

1. The Trial Court erred in ruling that the petitioner suffered 85% disability to the body as a whole as a result of an occupational disease. This is contrary to the undisputed facts and then© is no evidence to support said conclusion.
2. The judgment is contrary to the undisputed evidence and the findings of the Cóurt are not supported by any material or substantive evidence.
3. The Trial Court erred in ruling that petitioner's suit was not barred by the Statute of Limitations when the record and proof clearly and positively shows that petitioner’s suit was filed more than one year after the beginning of disability and the compensable injury and disease became apparent, pursuant to T.C.A. 50-1105 and 50-1108.
4. The Trial Court erred in ruling that the petitioner’s failure to give notice to the defendant of his occupational disease within thirty (30) days after its first distinct manifestation did not bar petitioner’s claim.

Petitioner was 56 years of age at the inception of this suit and has a high school education. He had been an underground coal miner for 37 years. He had worked for Pocahontas Fuel Company, defendant’s predecessor, for 13 years. In 1954, defendant purchased that company, and petitioner worked for defendant, Consolidation, for 13 more years until his termination in November, 1967.

[193]*193For the past 26 years, petitioner’s capacity with defendant has been that of section foreman. By education and experience, the trial court found that petitioner is qualified, only to do manual labor.

Petitioner testified that about two or three months prior to his termination date in November, 1967, he noticed a shortness of breath, but that it did not affect his work in any way.

On January 19,1968, Dr. William K. Swann, a specialist in thoracic medicine and surgery, examined petitioner and advised him that he had rock dust on his lungs, or silicosis. At this time, petitioner was hospitalized for treatment. Dr. Swann subsequently saw him on four occasions.

Dr. Swann testified that X-rays revealed petitioner has nodular fibrosis in his lungs, which he believes to be silicosis; that he has ‘moderately severe emphysema,” which is secondary to his dust disease; that his breathing capacity is reduced to 50 to 60 per cent of the normal value, which he termed “moderate”.

As to petitioner’s ability to be employed as a coal miner or for work involving physical exertion, Dr. Swann stated:

“He’s not employable as a coal miner. No doctor would recommend that he go back to work underground and. no physician would recommend that he work where he would be exposed to dust or fumes. As far as any other occupation is concerned, I think there are a number of things that he could do, but if he tried to do a job that would entail any appreciable physical exertion or manual labor, he would have difficulty at it. He would be short of breath.”

[194]*194As to petitioner’s ability to perform supervisory duties as a coal miner, Dr. Swann testified that from a physical standpoint, he could do so, hut that he would not recommend it, in order to avoid further exposure. When asked to state petitioner’s disability in percentage terms, Dr. Swann replied:

“A. As you well know, I don’t like to make that kind of an estimate, because it entails such a large amount of guesswork, and I won’t do it unless I’m ordered to by the Court. I tell you what I found wrong with the man and my opinion about what he’s able to do, but as far as giving you a numerical percentage, I don’t think that it’s worthwhile. ”

Defendant, in its first two assignments of error, argues that, while petitioner has X-ray evidence of an occupational disease, it did not result in any disability. It is further argued that the medical testimony was couched, not in terms of degree and extent of disability, but in terms that petitioner should not go back in the mines and be further exposed to dust, irrespective of extent of disability.

From this, petitioner insists that the trial court did not base its findings of fact and opinion upon evidence “having probative value, ’ ’ and that it overlooked undisputed evidence.

It is our opinion that the medical testimony to the effect that petitioner has silicosis, emphysema, and a substantial reduction in breathing capacity, is evidence having probative value and thus supports the trial court’s finding. Finding such, it is- not this Court’s function to further weigh the evidence, or to give particular attention to isolated fragments of evidence which [195]*195might tend to contradict the finding of the lower conrt. See Armstrong v. Spears (1965), 216 Tenn. 643, 393 S.W. 2d 729; Reedy v. Mid-State Baptist Hospital (1962), 210 Tenn. 398, 359 S.W.2d 822.

It is also the well-established rule that in determining the extent of disability, the trial judge is not bound to accept the testimony of any witness. He is entitled to determine from all the evidence the extent of disability. Lunsford v. A. C. Lawrence Leather Co. (1949), 189 Tenn. 293, 225 S.W.2d 66; Bush Bros.

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Consolidation Coal Company v. Pride
452 S.W.2d 349 (Tennessee Supreme Court, 1970)

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Bluebook (online)
452 S.W.2d 349, 224 Tenn. 188, 1970 Tenn. LEXIS 313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/consolidation-coal-company-v-pride-tenn-1970.