Billy Joe Clubbs v. Cresent Manufacturing Co.,

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the injured employee insists the trial court erred in dismissing his claim for benefits for failure to give timely written notice of his injury. As discussed below, the panel has concluded the judgment should be reversed and the cause remanded for further consideration. Tenn. Code Ann. _ 5-6-225(e) (21) Appeal as of Right; Judgment of the Circuit Court Reversed. Cause Remanded. JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Mary A. Parker, Nashville, Tennessee, for the appellant, Bobby Joe Clubbs D. Andrew Saulters, Nashville, Tennessee, for the appellees, Cresent Manufacturing Company and CNA Insurance Company MEMORANDUM OPINION The employee or claimant, Clubbs, is a supervisor for the employer, Cresent, and familiar with the procedure for reporting injuries. In January or February of 1999, he felt "an intense jolt" when a wrench he was using slipped. The claimant did not report the occurrence to the employer. He testified that it is customary, though not encouraged, at Cresent not to make written report of a minor injury when the employee believes the injury will resolve itself quickly. His pain quickly subsided and he finished his shift and continued working without pain. At the time, the claimant did not realize he had suffered an injury. Seven to ten days later, he began experiencing severe headaches. However, he had suffered headaches in the past and was not alarmed by it. He began visiting Dr. Sid King, whom he had seen from time to time for other headaches. When conservative care did not relieve the headaches and tests revealed a spur, Dr. King referred the claimant to a neurologist, Dr. Mary Ellen Clinton, whom the claimant first saw on March 17, 1999. On the same day, Dr. Clinton advised him that she thought the condition was the result of the wrench slipping episode at work. The claimant retained an attorney, who, on April 2, 1999, reported the injury to the employer by letter. Dr. Ray Hester, to whom the claimant was referred by Dr. Clinton, diagnosed a herniated cervical disc, which he repaired surgically. Dr. Hester opined at trial that the injury was work related and assigned a permanent impairment rating. The claimant was totally disabled to work for a period of time and has incurred medical expenses. Following a trial on the merits, the trial court found the claimant, without a reasonable excuse, had failed to give timely notice of his injury. Appellate review of findings of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court that had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer has actual knowledge of the accident, give written notice of the injury to his employer. Benefits are not recoverable from the date of the accident to the giving of such notice, and no benefits are recoverable unless such written notice is given within 3 days after the injurious occurrence, unless the injured worker has a reasonable excuse for the failure to give the required notice. The notice may be given by the employee or his representative. Tenn. Code Ann. _ 5-6-21. The reasons for the 3 day statutory notice requirement are (1) to give the employer an opportunity to make an investigation while the facts are accessible, and (2) to enable the employer to provide timely and proper treatment for the injured employee. McCaleb v. Saturn Corp., 91 S.W.2d 412, 415 (Tenn. 1995). Whether or not the excuse offered by an injured worker for failure to give timely written notice is sufficient depends on the particular facts and circumstances of each case. A. C. Lawrence Leather Co. v. Britt, 22 Tenn. 444, 454, 414 S.W.2d 83, 834 (1967). The presence or absence of prejudice to the employer is a proper consideration. Marshall Construction Co. v. Russell, 163 -2-