Davidson & Graham Construction Co. v. McKee

562 S.W.2d 426, 1978 Tenn. LEXIS 589
CourtTennessee Supreme Court
DecidedMarch 6, 1978
StatusPublished
Cited by3 cases

This text of 562 S.W.2d 426 (Davidson & Graham Construction Co. v. McKee) 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
Davidson & Graham Construction Co. v. McKee, 562 S.W.2d 426, 1978 Tenn. LEXIS 589 (Tenn. 1978).

Opinion

FONES, Justice.

OPINION

Defendant, Davidson and Graham Construction Company, appeals from the decree of the trial court awarding workmen’s compensation benefits for a ninety (90%) percent permanent partial disability of plaintiff’s left eye.

Defendant insists that the statute of limitations began to run on May 8, 1975, the date of the accident and injury to plaintiff’s eye; that the filing of this action on January 11, 1977, more than one (1) year later, was barred.

The trial judge expressly found that plaintiff did not know there would be any permanent retinal damage to his eye until so informed by Dr. Dahrling in April, 1976, and that the suit was timely filed.

Plaintiff, Ray S. McKee, was working as a lead carpenter framing cornices on the back of a house. While he was nailing the frame overhead, a sixteen penny nail flipped from under his hammer and stuck in his left eye. He pulled the nail out, drove home and then to Memorial Hospital where he was referred to Dr. Arnold, an ophthalmologist. After examination at Dr. Arnold’s office, he was admitted to Erlanger Hospital. Doctor Arnold testified that [427]*427McKee sustained a laceration of the sclera, that it was punctured, and some fluid leaked out. Surgery was performed at the hospital to repair the laceration and excise the iris prolapse. Plaintiff was discharged on May 12, 1975.

Plaintiff was seen by Dr. Arnold on May 15, 19, and 26, 1975. On the May 26 office visit, vision in his left eye was 20/20. He was examined by Dr. Arnold on June 7, and 16, and was told he could return to work.

Plaintiff testified that he had headaches and flashes of light and that sometime around September, 1975, he developed a hazing in his left eye. However, he did not see a doctor from June, 1975, until he returned to Dr. Arnold’s office January 5, 1976.

Doctor Arnold found his vision to be 20/60 in the left eye and 20/30 in the right eye. He testified that he could not find anything wrong with plaintiff’s eyes, so he referred him to Dr. Dahrling, an ophthalmologist who specializes in disorders of the retina.

Doctor Dahrling testified that when he examined plaintiff on January 14, 1976, his retinas looked good, and he explained to plaintiff that, “we really didn’t see anything wrong, that we felt that perhaps he was suffering some of this distortion from traction on the retina by the vitreous and told him that we’d like to check him again in three months.”

Plaintiff returned to Dr. Dahrling on April 5, 1976. The doctor testified that he became a bit concerned about what was going on because he didn’t find anything wrong to explain plaintiff’s problem. He sent plaintiff back to Dr. Arnold to make certain there was nothing in the front part of the eye, the cornea, or the lens, that could account for plaintiff’s problem, and he also instructed plaintiff to return to his office in three (3) months. However, plaintiff returned in May complaining of pain in the left eye of two (2) days duration. Doctor Dahrling found that he had cells in the vitreous, indicating an inflammatory reaction. Plaintiff was given an injection of celestone and put on cortisone drops. On his next visit, late in May, his vitreous was much clearer. Doctor Dahrling also saw plaintiff in July, September and November. Again Dr. Dahrling became concerned because he could find no condition that would explain plaintiff’s loss of vision and visual field and he sent plaintiff to Dr. Ira Long for examination. Doctor Long’s report, dated December 16, 1976, stated that he could not discover any organic cause for plaintiff’s visual problems.

The only diagnosis of an organic condition made by Dr. Dahrling was vitreitis, a posterior vitreous detachment, and he found it difficult to account for the degree of loss of vision and the visual field loss on the basis of vitreitis. At one point in his testimony he described the degree of plaintiff’s loss as “surprising if one tries to relate to the vitreitis.” He indicated that vitreitis can usually be controlled by cortisone type preparations. Doctor Dahrling explained that plaintiff’s visual field was less than five degrees in the left eye, which gave rise to concern about the possibility of neurologic problems in the optic nerve. However, he said that any injury to the optic nerve would be indicated by a whitening of the nerve within two (2) to six (6) months and that no evidence of nerve damage had yet appeared.

In Griffitts v. Humphrey, 199 Tenn. 528, 288 S.W.2d 1 (1955), the Court resolved the question of whether the date of the accident or the date of known disability triggers the statute of limitations. The conflict arising from the use of the word “accident” in Tennessee Code Annotated § 50-1003 and “injury” in Tennessee Code Annotated § 50-1017 and the conflicting interpretations of those statutes in Graham v. J. W. Wells Brick Co., 150 Tenn. 660, 266 S.W. 770 (1924), and Ogle v. Tenn. Eastman Corp., 185 Tenn. 527, 206 S.W.2d 909 (1947), were discussed at length. In overruling Graham and approving the result of Ogle, the Court gave as its principal reason for adopting the date of the injury rather than the date of the accident as the beginning date of the statute of limitations, the rationale of Salt Lake City v. Industrial Commission, 93 [428]*428Utah 510, 74 P.2d 657 (1939). The crux of that rationale is found in the following excerpt from the lengthy quote in Griffitts:

“Not until there is an accident and injury and a disability or loss from the injury does the duty to pay arise. A mere accident does not impose the duty to pay. Accident plus injury therefrom does not impose the duty. But accident plus injury which results in disability or loss gives rise to the duty to pay. When the employer refuses or ceases to pay compensation, the cause of action against him arises.” 288 S.W.2d at 4.

The Griffitts decision has been consistently followed by this Court. Of particular significance here, the Court in Imperial Shirt Corporation v. Jenkins, 217 Tenn. 602, 399 S.W.2d 757 (1966), quoted with approval from Larson on Workmen’s Compensation, Volume 2 § 78.41 page 261, the following:

“A fortiori, his claim should not be barred when qualified physicians have been unable to present him with a diagnosis of his condition within the period of limitations.”

Defendant, in insisting that the statute began to run on May 8,1975, relies upon the fact that plaintiff had problems with a flashing effect in his left eye almost continually after the injury, and he developed a hazing problem in September, 1975. From these conditions, defendant seemingly insists that plaintiff should have known that he would have a permanent disability in his left eye.

Plaintiff testified that Dr. Arnold told him the flashing in his left eye would clear up. While Dr.

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Bluebook (online)
562 S.W.2d 426, 1978 Tenn. LEXIS 589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davidson-graham-construction-co-v-mckee-tenn-1978.