Ware v. United States Steel Corp.

541 S.W.2d 107, 1976 Tenn. LEXIS 529
CourtTennessee Supreme Court
DecidedJuly 19, 1976
StatusPublished
Cited by9 cases

This text of 541 S.W.2d 107 (Ware v. United States Steel Corp.) 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
Ware v. United States Steel Corp., 541 S.W.2d 107, 1976 Tenn. LEXIS 529 (Tenn. 1976).

Opinion

OPINION

HENRY, Justice.

This is an appeal from a denial of Workmen’s Compensation benefits in a suit wherein the claim was predicated upon silicosis and recovery was sought under the occupational disease statutes, § 50-1101, et seq., T.C.A.

[109]*109

Claimant was employed by United States Steel Corporation for approximately thirty years. Sometime around 1964 he developed hypertensive cardiovascular disease. In February 1969 he suffered a myocardial infarction, but recovered sufficiently well to resume his employment. In March 1971 he suffered a second myocardial infarction.

After this second heart attack his doctor advised him not to return to work. The doctor testified by deposition and stated that as a result of this heart condition “Mr. Ware was 100 percent disabled.” He did not return to work. He drew his company pension and social security benefits based on total disability.1

On May 30,1972 he consulted Dr. William K. Swann, a thoracic surgeon, who determined that he was suffering from silicosis and was permanently and totally disabled by reason thereof. It was Dr. Swann’s opinion that silicosis would aggravate his heart condition.

This action was instituted on October 2, 1972. Thereafter, he was examined on November 30, 1972 by another thoracic surgeon, Dr. William K. Rogers, who was designated by counsel for U. S. Steel. Dr. Rogers concluded that he was suffering from “pneumoconiosis in category one”, characterized as being the lowest on the severity scale, with “minimal to moderate loss of pulmonary function.” He further testified that pneumoconiosis can be a progressive disease. He testified positively, however, that it did not aggravate, or have any significant effect on coronary artery disease.

The Trial Judge found that claimant had silicosis arising out of his employment, and that this was permanently and totally disabling; however, he further found and held:

. that this plaintiff was totally disabled before the diagnosis of silicosis by reason of the heart condition, and since he was totally disabled by reason of the heart condition this Court cannot award any compensation by way of reduced earning capacity for silicosis. (Emphasis supplied). ’

There is ample material evidence to support findings that (1) claimant was permanently and totally disabled after his heart attack of 1971; (2) that he was suffering from silicosis, a progressive lung disease, and (3) that he was permanently and totally disabled by reason thereof.

II

The action of the Trial Judge in predicating his denial of compensation upon the basis of there being no reduction in earning capacity was unfortunate and resulted in the parties joining issue, in this Court, on a question that is not properly involved in this controversy.

It should be borne in mind that the all pervading purpose of the workmen’s compensation laws is to substitute compensatory income for loss of earning capacity. Hartford Hosiery Mills v. Jernigan, 149 Tenn. 241, 259 S.W. 546 (1923). But it must be borne in mind that the terms “loss of earning capacity” and “loss of earnings” are not synonymous. See 2 Larson, Workmen’s Compensation Law, § 57.21 (1976).

At the very outset of this discussion, we point out that there is a substantial difference in the Workmen’s Compensation Law as it exists today and as it existed prior to 1953.

The “permanent partial disability” cases prior to the adoption of Chapter 111, Public Acts of 1953, construe subsection (c) of § 50-1007 which, prior to 1953, read:

In all other cases of permanent partial disability not above enumerated the compensation shall be sixty per centum of the difference between the wage of the workman at the time of the injury and the wage he is able to earn in his partially disabled condition subject to a maximum of twenty-five dollars per week. (Emphasis supplied).

[110]*110It is evident that under the section as it then existed a decrease in earning capacity was significant.

In Standard Sur. & Cas. Co. v. Sloan, 180 Tenn. 220, 173 S.W.2d 436 (1943), the Court makes this decrease in capacity to earn wages the primary test of entitlement to compensation. After quoting from the act as it then existed, the Court said:

The measure of the award is prescribed by the language we have italicized. If there is no ‘difference,’ then there can be no award of compensation. 180 Tenn. at 225, 173 S.W.2d at 438.

Obviously, the Court in that case construed the phrase “is able to earn” as being synonymous with “is earning” although later in the opinion does make the statement “[t]he test is whether or not there has been a decrease in petitioner’s capacity to earn wages.” 180 Tenn. at 226, 173 S.W.2d at 438.

In the case of Mathis v. Forrest & Sons, 188 Tenn. 128, 216 S.W.2d 967 (1949), the Court quoted extensively from Standard Sur. & Cas. Co. and dismissed the petition for permanent partial benefits because the injuries complained of “had not diminished petitioner’s earning capacity”. The factual situation was that the claimant had had no reduction in his wages as a result of the injuries he had sustained. Again the Court very obviously applied a test of actual loss of earnings as opposed to earning capacity.

Mr. Justice Gailor, in Greeneville Cabinet Co. v. Ramsey, 195 Tenn. 409, 260 S.W.2d 157 (1953), substantially clarifies and moderates these and other prior holdings by a clear statement that the phrase “is able to earn” is not synonymous with “is earning”, and points out that:

The question is whether, in the open labor market, in his disabled condition, the employee, after the injury, is able to earn in spite of his disability, as much as he was able to earn before the injury. 195 Tenn. at 414, 260 S.W.2d at 159.

By Chapter 111, Public Acts of 1953, the Legislature struck the last paragraph of Section 6878(c), 1950 Code Supplement, [now Sec. 50-1007(c)] and inserted a new provision designed to furnish a basis for determining the compensation to be paid for permanent partial loss of the body as a whole by giving it “a specific value in weeks in the same manner that a value in weeks is given in the schedule to the various members of the body.” Hooper v. Young Sales Corp., 199 Tenn. 629, 635, 288 S.W.2d 703, 705 (1956).

The effect of this amendment was to place “permanent partial loss of the use of the body in the schedule wherein specific amounts are fixed for the whole or partial loss of a given member of the body.” Bituminous Cas. Corp. v. Smith, 200 Tenn. 13, 19, 288 S.W.2d 913, 915 (1956). See also U.S.F. & G. v. Townsend,

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Bluebook (online)
541 S.W.2d 107, 1976 Tenn. LEXIS 529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ware-v-united-states-steel-corp-tenn-1976.