New Jersey Zinc Co. v. Cole

532 S.W.2d 246, 1975 Tenn. LEXIS 610
CourtTennessee Supreme Court
DecidedDecember 22, 1975
StatusPublished
Cited by16 cases

This text of 532 S.W.2d 246 (New Jersey Zinc Co. v. Cole) 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
New Jersey Zinc Co. v. Cole, 532 S.W.2d 246, 1975 Tenn. LEXIS 610 (Tenn. 1975).

Opinions

OPINION

PONES, Chief Justice.

Plaintiff Cole was awarded workmen’s compensation benefits for a “closely related” occupational disease and defendant, New Jersey Zinc Company, his employer, appeals.

Defendant has assigned seven (7) errors, and the principal issue raised is whether the medical proof is sufficient to establish that plaintiff suffers from an occupational disease closely related to those named in T.C.A. § 50-1101 and having its origin and cause in a risk connected with his employment by defendant.

I.

Plaintiff worked for defendant for more than sixteen (16) years, beginning in April, 1956, and ending August 30, 1972. His duties involved mine maintenance and construction, and most of his work was performed underground.

On direct examination plaintiff related his work career as beginning in 1939 with American Zinc Company as an underground worker. The substance of his direct testimony was that he worked in various mines in the Mascot-Jefferson City area operated by American Zinc Company and TCI, apparently a subsidiary of U.S. Steel, from 1939 to 1956, with the exception of less than a year when he farmed and performed odd jobs.

When plaintiff was cross-examined at the trial, counsel for defendant, armed with specific details of plaintiff’s entire employment career was able to show that plaintiff had worked at jobs other than zinc mining for four (4) years and nine (9) months during the period 1939 to 1956.

[248]*248Plaintiff testified that the air in defendant’s zinc mine was heavily laden with dust, powder, diesel fumes and other injurious substances. Several employees gave similar descriptions of conditions in defendant’s mine and one described the intensity of the black dust and smoke much more vividly than plaintiff.

At the close of plaintiff’s proof, defendant moved to dismiss. The trial judge overruled the motion and defendant offered no proof. Thus, no countervailing evidence was adduced either lay or medical.

II.

Plaintiff testified that defendant required that he be examined by Dr. Milligan, defendant’s doctor, prior to his employment in 1956, which examination included x-rays of his chest.

In January, 1972, plaintiff became ill and his wife took him to the emergency room at Ft. Sanders Hospital where he was placed under the care of Dr. Domm, a thoracic surgeon. Plaintiff’s illness was diagnosed as pneumonia but after a short period of hospitalization he returned to work. However, he was seen a number of times by Dr. Domm and on April 27, 1972, special x-ray studies with iodized oil drops were conducted and considerable distortion was found in the left lung, of undetermined cause.

In August, 1972, plaintiff had shortness of breath, pains in his chest and coughing and was sent to Dr. Milligan by defendant’s supervisor. Dr. Milligan obtained an appointment for him with Dr. Domm and he was promptly hospitalized and has not worked a day since August 30, 1972.

From August, 1972, through January, 1974, plaintiff was continuously under the care, treatment, and direction of Dr. Domm. He was hospitalized a number of times and referred to other doctors for various tests and on occasion, treatment for temporary maladies. Throughout the period of Dr. Domm’s care, plaintiff’s principal complaint was shortness of breath. In September, 1972, plaintiff was hospitalized for acute bronchitis, which responded to simple treatment, but Dr. Domm “continued to worry” about his left side and observed some density on the right side, apparently from x-ray studies.

In November, 1972, plaintiff developed knots on his right arm and lost the use of his right hand. This alarmed Dr. Domm and plaintiff was again hospitalized. A neurologist and an internist were called in as consultants. Pulmonary function studies were performed with remarkably alarming results. His breathing at that time was described as severely restricted with obstructive impairment.

Dr. Domm thought possibly plaintiff had some rare condition and sent him to Dr. McCampbell who biopsied two masses without significant results. In January, 1973, while Dr. Domm was continuing to check plaintiff, a right leg limp developed and plaintiff was referred to the neurologist who again failed to report any significant findings involving the central nervous system. In May, 1973, Dr. Domm hospitalized plaintiff again principally because of a new symptom, difficulty in swallowing. X-rays and swallowing studies were performed without significant result. Later in May, plaintiff was readmitted to St. Mary’s Hospital for what appeared to be a respiratory infection. A lung scan was performed and reported normal, apparently ruling out arterial disease. Breathing tests again showed poor ventilation.

Finally, on August 14, 1973, Dr. Domm performed a biopsy of plaintiff’s lung. We quote from Dr. Domm’s testimony, concerning the biopsy report and his diagnosis:

“A. That official report by Dr. Carter Miller, a pathologist, states ‘interstitial fibrosis, nodular and diffuse, severe, with emphysema, consistent with clinical diagnosis of anthracosis’. The preliminary frozen section report by Dr. McMurry having commented that the tissue we biopsied was consistent with an ethological impression of silicosis.
[249]*249Q. In your opinion, Doctor, this condition that you discovered as a result of the biopsy on Mr. Cole — is it in any wise disabling to this gentleman?
A. The pulmonary function state of the patient is disabling and the assumption that the pulmonary fibrosis is causally connected with the finding of ventilatory impairment would permit the assumption that he is disabled by reason of the pulmonary fibrosis.” Deposition of Dr. Shelton E. Domm, pages 9, 10.

III.

Defendant says the trial court erred in refusing the request to find what occupational disease he based the recovery on. Defendant’s contention pursuant to this assignment of error is lacking in specificity, but we conclude that it presupposes the necessity that one of the twelve (12) diseases listed in T.C.A. § 50-1101 must be singled out and the disease plaintiff suffers from described medically as closely related thereto.

The first non-scheduled disease held to be a closely related compensable occupational disease was pulmonary fibrosis. Whitehead v. Holston Defense Corporation, 205 Tenn. 326, 326 S.W.2d 482 (1959). Therein Chief Justice Neil, writing for the Court said:

“While it is true the Legislature listed nine occupational diseases as compensa-ble, yet a liberal interpretation of this section does not require that the disease from which an employee suffers must be proved to that degree of scientific exactness as to classify it as one of these listed occupational diseases. Medical science, great and important as it is in serving humanity, is not an exact science. Moreover men of science have not as yet given a name to every human ailment.

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New Jersey Zinc Co. v. Cole
532 S.W.2d 246 (Tennessee Supreme Court, 1975)

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Bluebook (online)
532 S.W.2d 246, 1975 Tenn. LEXIS 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-jersey-zinc-co-v-cole-tenn-1975.