New Jersey Zinc Co. v. Cole

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.

*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.
*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. Some diseases are so closely related to certain classified diseases that they must be denominated as ‘occupational’, provided the elements of causation can be connected, either directly or indirectly, with the conditions under which an employee is required to work. . . ” 326 S.W.2d at 485.

In Maryland Casualty Company v. Miller, 210 Tenn. 301, 358 S.W.2d 316 (1962), Mr. Justice Burnett referred to the reasoning in Whitehead and added the following comment:

“. . . In that case, this Court held that the section covering occupations diseases, § 50-1101, T.C.A., does not require that the disease from which the employee suffers be proved to that degree of scientific exactness as to classify it as one of the listed occupational diseases, and also we held therein that diseases closely related to the classified diseases in causative effect must be classified as ‘occupational’ provided the elements of causation can be connected directly or indirectly with the conditions under which the employee was required to work. We in this case, and others therein cited, have placed a very broad interpretation upon § 50-1101, T.C.A., which is apparently calculated to offset in some measure the unusually short scheduled list. Reason, justice and common sense demand that it be so enlarged when it is shown that the end result came from the listed disease.” (Emphasis added) 358 S.W.2d at 319.

In addition, Dr. Miller states that anthra-cosis is one type of pneumonicosis. Coal workers’ pneumonicosis is a scheduled occupational disease, as is silicosis. It may be deduced from the medical proof in this case that anthracosis, silicosis, coal worker’s pneumonicosis and pulmonary fibrosis are all diseases of the lung secondary to inhalation of dust and particles; that anthracosis is associated with carbon pigment inhalation, coal worker’s pneumonicosis with coal dust and silicosis with silica. Dr. Miller testified that he could not say that all of the damage to plaintiff’s lungs was due to carbon pigment but that, “. . . all of the damage is due to, in my opinion, a basic pneumonicosis problem.”

We hold that there is ample material evidence to support a finding that plaintiff *250suffers from a disease closely related to the named diseases in T.C.A. § 50-1101.

IV.

The most serious issue in this case involves the proof of the essential element of origin in a risk connected with the employment by defendant. The problem arises because of use by plaintiff of an improper hypothetical question. First, the evidence does not support all of the facts hypothesized. The time that plaintiff spent in zinc mines between 1939 and 1956 was inaccurate. However, the more significant problem arises from the inclusion in the hypothetical question of any activity prior to plaintiff’s employment by defendant in 1956. To establish that a disease had its origin and cause in a risk connected with employment by a particular employer, it should be shown that the disease did not pre-exist that employment, and that the disease was caused by a particular hazard connected with the work.

The hypothetical question posed by plaintiff to Doctors Domm and Miller was defective in providing the necessary proof that the disease did not pre-exist employment by defendant in 1956. However, we hold that the uncontradicted proof that Dr. Milligan, defendant’s company doctor examined the plaintiff and approved him for employment in the defendant’s zinc mine, in 1956, is material evidence to support the statutory element of origin of the disease, with or during plaintiff’s employment by this defendant.

V.

Defendant asserts that the trial court erred in admitting into evidence the findings and conclusions of doctors and hospital personnel not before the Court.

The short answer to this complaint of error is that the principal test upon which the determinative diagnosis was made was that of the pathologist, Dr. Miller. Doctor Miller was present in court subject to cross-examination, and defendant’s objections to the testimony of Dr. Domm predicated upon the pathology report of Dr. Miller is patently untenable.

At the trial of the case the medical depositions of Doctors Domm and Miller were read into the record. Defendant interposed numerous objections and all were overruled by the trial judge. These objections were to every reference that Dr. Domm made to any lung studies, x-rays, tests or reports performed by doctors or persons other than Dr. Domm himself.

This Court has not ruled, directly, on the admissibility of an expert opinion based, in part, on hearsay reports of others to support his conclusion.1

We hold that the diagnosis and/or expert opinion of an attending physician is admissible, although based in part upon reports of other doctors or hospital technicians who are not called as witnesses, if said reports are used in the diagnosis or treatment of the patient.

The reason for this rule, which may be the minority rule, is well stated in State Realty Co. v. Ligon, 218 Ala. 541, 119 So. 672 (1929):

“. . . The law recognizes that, in the practice of medicine, a diagnosis of the ailment may include a personal examination of the patient by all the methods known to science, and also the history of the case, as given by the patient or other examining physicians.
This history may include a statement of present and past symptoms, the incidents connected with the beginning of the trouble, such as injury by accident, and the findings of other physicians, such as X-ray examination and blood tests. A professional opinion as to the nature, cause, and extent of the ailment, based upon all these matters in connection with and as part of the personal examination of the *251patient, is competent evidence. Necessarily the information coming to the physician may be largely hearsay. An exception is made because of the necessities of medical science, because the patient’s statements are presumed to be made to aid a correct diagnosis and cure, and the professional reports of physicians and nurses with the same end in view.” 2 119 So. at 674.

VI.

Defendant complains of error in awarding permanent disability, asserting that there is no medical evidence to support a finding of permanency.

Doctor Domm testified as follows:

“Q. And is this disability, in your opinion, temporary or permanent?
A. Well, I would assume that it was permanent. We certainly haven’t been able to improve him very much with all measures known to us.
Q. Is this disability in your opinion of a minor or a considerable extent? How would you view it?
A. His breathing impairment?
Q. Yes, sir?
A. Oh, that’s severe. By reason of these tests, he is totally disabled for much of anything at all.” Deposition of Dr. Shelton E. Domm, page 10.

In our opinion the foregoing testimony of Dr. Domm taken in the context of his care and treatment of the plaintiff over a period of approximately one (1) and one-half (½) years is ample evidence to support a finding of ninety (90%) percent permanent disability to the body as a whole. See Maryland Casualty Company v. Miller, supra.

VII.

Defendant alleges error in starting disability benefits on August 30, 1972.

While it is true that the diagnosis upon which the claim is predicated was not made until August, 1973, plaintiff was under the care and treatment of Dr. Domm from August, 1972, forward. While his principal complaint and symptom was difficulty in breathing, a number of complicating symptoms intervened. Dr. Domm saw fit to check them all thoroughly because, “. we might be missing some rare condition that might be attributing to all of these apparently non-related troubles.”

There is ample material evidence, medical and lay, to support a finding that plaintiff was disabled from and after August 30, 1972, as a result of lung disease.

Last, defendant asserts as error the trial court’s allowing recovery for medical bills incurred by plaintiff from and after August 30, 1972. Defendant’s brief asserts in support of this assignment of error that the court allowed plaintiff to recover “for all medical expenses incurred by Mr. Cole from and after August 30, 1972, . . . ” and that the proof shows that many of the conditions claimed by Mr. Cole had no relation to the lungs. The final decree entered by the trial court provides as follows with respect to the payment of medical expenses:

“. . . that plaintiff have and recover of the defendant all medical and hospital expenses incurred as a result of care, treatment and diagnosis (including diagnostic efforts expended by the various doctors herein) from and after August 1972 to present, . . .”

Unlike negligence cases, liability for medical expenses in a workmen’s compensation case are governed by the statute. T.C.A. § 50-1004 provides, inter alia, that the employer shall furnish to the employee such medical and surgical treatment, etc., “. . .as ordered by the attending physician ... as may be reasonably required . . . ”.

*252Doctor Domra, the attending physician ordered all of the tests and consultations with other doctors that defendant complains of. Defendants premise that several of plaintiff’s symptoms are unrelated to the eventual diagnosis of lung disease has no medical support in the record. We agree that they appear to the lay observer to be unrelated, but the fact remains that Dr. Domm obviously was of the opinion that they could be related or in some way could aid in the diagnosis of plaintiff’s principle problem of shortness of breath. Thus, there is material evidence to support a finding that said expenses were reasonably required. Further, this assignment of error does not meet the specificity requirements of Rule 14(2) of this Court.

The judgment of the trial court is affirmed. Defendant will pay the costs of this appeal.

COOPER, HENRY and HARBISON, JJ., and HYDER, Special Justice, concur. BROCK, J., not participating.

. See Paine, Tennessee Law of Evidence, § 176.

. Similar reasoning from the Wisconsin case of Sundquist v. Madison Railroad, 197 Wis. 83, 221 N.W. 392 (1928) was apparently approved in Fidelity and Casualty Company of New York v. Treadwell, 212 Tenn. 1, 367 S.W.2d 470 (1963). However, application of this rule was unnecessary to the decision in that case.