Jimmy Dayle Shelton, Ii v. The Torrington 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. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer contends the evidence preponderates against any award of benefits for a claimed occupational disease because (1) the claim is barred by the applicable statute of limitations, (2) the claimant failed to give timely written notice of his claim, (3) the disease did not arise out and in the course of employment, (4) the claimant is not permanently disabled or, if he is, the award of permanent disability benefits is excessive, and (5) the defendant is not the employer for which the claimant was working at the time of the last injurious exposure. As discussed below, the panel has concluded the judgment should be reversed and the case dismissed. The employee or claimant, Shelton, is thirty-eight years old with a high school diploma, twenty-seven credit hours toward an Associate of Arts degree and a certificate in automotive technology. He worked in the employer's ball bearing manufacturing plant from April 14, 198 until September 28, 199, when he quit because something in the plant made breathing difficult for him. He did not tell anyone at Torrington the reason for his quitting. During his employment at Torrington's ball bearing plant, he held positions in different areas of the plant, including the steel yard, the cast iron department, the screw machine department and the shipping department. He testified that breathing was difficult for him in all those areas. Before becoming employed by Torrington, he worked for other employers and had no breathing problems. In the spring of 1989, there was a fire in the plant. The claimant was exposed to smoke for about five minutes. In the spring of 199, he was briefly exposed to steam from an overheated battery. He first received medical treatment for chest pain and tightness on May 25, 1989 and for shortness of breath on May 22, 199. Two pulmonary specialists, Dr. A. Clyde Heflin and Dr. Alan H. Arrington, testified at the trial by deposition as to the claimant's physical condition. At the time of the trial on October 1, 1996, the claimant was employed by Advance Auto Parts as an assistant manager and had been so employed for almost two years. The trial judge found the claimant first knew he had an occupational disease on September 22, 1993, when Dr. Arrington sent a letter to the claimant's attorney, and that the claimant had a compensable permanent partial disability of thirty-five percent to the body as a whole, which the trial judge commuted to a lump sum judgment of $36,36.2, using the agreed upon compensation rate. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). 2