# FILED
February 17, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COUR T OF TENNESSEE AT JA CKSON FRANKLIN JONES, ) FOR PUBLICA TION ) Filed: February 17, 1998 Plaintiff/Appellant, ) ) CHESTER CHANCERY ) ) v. ) Hon. Joe C. Morris, ) Chancellor. ) STERLING LAST CORPORATION ) No. 02S01-9606-CH-00057 d/b/a QUALITY MANUFACTURING ) COMPANY and ST. PAUL FIRE AND ) MARINE INSURANCE COMP ANY, ) ) Defendants/Appellees. )

For the Appellant : For the Appellees : Othal Smith, Jr. Steven W. Maroney College Grove, Tennessee Greg A. Petrinjak Waldrop & Hall Jackson, Tennessee

O P I N I O N

JUDGMENT OF TRIAL COURT DROWOTA, J. AFFIRMED1 This case also invol ves issues concerning th e statute of limitations and whether the employee suffered permanent disab ility as a result o f a work-related injury. In l ight of our resolution of the notice question, it is unnecessary for us to address these additi onal issues. 2 In this workers’ compensation action, the employee, Franklin Jones, plaintiff-appellant, has appealed from a judgment of the Chancery Court of Chester County dismis sin g his claim for work ers’ compensation benefits agai nst the employer, Sterling Last Corporation d/b/a Quality Ma nu facturing Co., defendantappellee. The trial court found that the emplo yee failed to give timelynotice of his injuryto the employer, failed to timely file suit, and had no t suffered any permanent disability as a result of a work- related accident. The Special Workers’ Compensation Appeals Panel, upon reference for findings of fact and conc lusions of law

pursuant to Tenn. Code Ann. § 50-6-22 5(e) (5), reversed the tr ial court’s dismissal

and awarded benefits to th e emp loyee b ased upo n 20 perce nt vocatio nal disab ility. Thereafter, the employer filed a motion for full Court review of the Panel’s decision. We granted the motion for review to consider whether the trial court erred in dismissing the employee’s claim for benefit s due to his failure to provide timely notice of his injury to the employe r as required by Tenn. Code Ann. § 50-6-201. 1 After carefully examining the record before us and considering the relevant authorities, we affirm the trial court’s judg ment.

The plaintiff, Fran k lin Jones, was 62 ye ars old at the time of trial an d had graduated from th e Chest er County Training School. His employment history consistsof farming and working as a plumber ’s assistant. He began working for the defendant in 1965 as a machine operator, a position that required considerable sto o ping, turning and twisti ng. The employee continued to w ork for the defendant until his termination on Jul y 24, 1992.

On October 23, 1992, the employee commenced th is actio n seek ing workers’ compensation benefits for a back injurythat occurred “prior t o June 9, 1992.” The complaint

alleges that

the injury was c

aused by continued bending, twisting, and standing on concrete at the employer’s plant. The employee testified toinjuring his3

backon two occasions at work, once in 1991 when he tried to catch a falling rack and again in June, 1992 when he fell. Neither of these injuries are the subject of this suit. The condition about which the employee n owcomplains is a gradually occurring back injury, which he says began prior to J une 9, 1992.

The p roof regarding notice of the employee’s injury i s at best unclear and contradictory. At trial, the employee testified that he never told his employ

er that he had a work-related inju ry. He al so testified that he did not know that his back condition was work-rel ated until May, 1993, w hen he was told by a physician that his backproblem was

work-related. (This was seven months after he fil ed his complaint seeking workers’ co mpensat ion bene fits.) Od dly, howe v er, the complaint itself allegesthat the employee gave notice of the injury to the empl oyer on or about June 10, 1992 . Apparen tly, the basis for this allegation w as a letter dated June 9, 1992, fro m th e employee’s physici an, Dr. Robert Winston, to the employer.This letter stated that ”[Franklin Jones] i s currently under my care. Due to t he status of his medical condition it is my pr ofes sional opinion that Mr. Jones be seated while performing his duties.” The employer did not honor the employee’s r equest to si t while performing hi s jo b because of safety considerations . The employee subsequently obtained a second letter from Dr. Winston and gave it to the employer. This second letter, dated July 14, 1992, stated that “[F ranklin Jones] is presently under my care. Due to his back condi ti on Mr. Jones will require a stool for sit ting while performing his duties.” The employer again did not honor the employee’s request to sit whil e working based on safety considerations.

On July24, 1992, the employer terminat ed the employee. The reason forthe termination of employment w as stated on a written se paration no t ice as “unable to meet job

requirements.” The instant suit was filed three month s later on October 23, 1992.4 After hearing all the proof, the chancellor determined that the employee failed to provide timely notice of his injury to the employer as required by Tenn. Code Ann. § 50-6-201. The chancellor also found that the suit was bar red by the statute of limitations andthat the employee had not suffered perman ent disability as a result of a work-related inju ry. Accordingly, the chancellor dismissed the suit.

The Special Workers’ Compensation Appeals Panel reversed the trial court’s dismissal. On the question of notice, the Panel opined that the empl oyer had actual knowledge of the employee’s injury because of the letters written by Dr. Winston, which the employer receiv ed. The Panel awarded the employee benefits based upon 20 percen t vocation al disabi lity. Thereaf ter, the e mployer f iled and we granted a motion for

full Court review . The issue dispositiv e of the appeal is whether the employee provided timel y notice of his injury

to the employer as requi red by Tenn. Code Ann. § 50-6-201. We hold that he d id not. Accordingly, we now reject the Panel’s findin gs of fact and conclusions of law and affirm the judgment of the trial court.

In workers’ compensation cases, the scope of review in this Court on issues of fact is de novo upo n the reco rd of the trial cour t, accom panied b y a presumption of the corre ctness of the findings, unless the preponderance of the evidence is otherwise. Tenn . Code Ann . § 50-6-225(e)(2); Spencer v. Towson Moving and Stor age , 922 S.W.2d 508, 509 (Tenn. 1996). When a trial court has
seen and heard witnesses, especially where issues of credibility and weight of oral testimony

are involved, considerable deference must be acc orded the trial court’s factual find ings. H umphrey v. David Witherspoon, Inc. , 734 S.W.2d 315 (Tenn. 1987).

The controlling statute, Tenn. Code Ann. § 50-6-201, pr ovi des in pertinent part:5 Every injured emplo yee or such injured employee’s representative shall,immediately upon the occurrence of an injury, or as soon the re after as is reasonable and practicable, giv e or cause to be given t o the employer who has not actual notice, written notice of the injury . . . an d n o compensation shall be payable under the provisions of this ch a pter unless such written notice is given to the

employer within thi rty (30) days after the occurrence of the accident, unl es s reasonable ex cuse fo r failure to give suc h notice is made to the satisfaction of the tribunal to which the claim for compensation may be presented.

In order to satisfy Tenn. Code A nn. § 5 0-6-201 , the notice must reasonably convey to the employer that the employee has suffered an injury arisi ng out of and in the course of the employment. Masters v. Industrial Garments Mfg. Co. , 595 S.W.2d 811, 816 (Tenn. 1980). The notice requirement exists so that the employer

will have the opportunity to make a timely investigation of the facts while st ill readily accessible , and to enable the employer to provide timely an d prope r treatmentfor the injured employee. Puckettv. N.A.P. Consumer Electroni cs Corp. , 725 S.W.2d 674, 675 (Tenn. 1987). In the absence of actual knowledge of the injury bythe employer, waiv

er of the notice by the employ er, or reasonable excuse by the employee for not giving notic e, the statutory notice to t he employer is an absolute prerequisite

to the right of the employee to recover benefits. Aetna Cas. & Sur. Co.
v. Long , 569 S.W.2d 444, 449 (Tenn. 1978). The plaintiff has the bur den of proving that the required notice w as given or excus

ed. Id . at 448.

In this case, the employee testified that he never told the employer that his back problem was wor k-related. He claimed that he did not reali ze he had a work-relatedinjury until M ay 1 993 when he was so informed by a doctor. (This doctor did not testify andnone of his records were introduced). It

defies logic for the employee to contend that he did not know he had a work-related i nj u ry until seven months after

he filed a complaint

alleging that he had

in fact suffered a work-rel ated injuryand was entitled to w orkers’ compensation benefits for that injury

. Furth ermore, the employee’s contention that he did not know that he had a w or k
related injury until May 1993 direc tly contradicts the specific assertion made in his2 The employee even argued before the chancellor that he did not give notice “be cause he’d been fired.” We have found no autho rity, and none has bee n cited to us, for the proposition that a termination from employment relieve s the employee of the statutory notice requirement. 6 complainttha t no tice of the injury wa s given to the employ

er on or about June 10, 1992. Obviously, the employ er could not have receiv ed notice of a work-relat ed injury on or about June 10, 1992 if the employee himself did not have notice of the work-related nature of his condition until some eleven months later.

The empl oyee also claims, and the Panel found, that Dr. W inston’s lett ers, which were received by the employer, constituted adequate notice of hi s injury. The first letter, dated June 9, 1992, stated that “[Franklin Jone s] is currently under my care. Due to the status of his medical cond ition it is m y professional opinion that Mr. Jones be seated while performing his duties.” The second letter, dated July 14, 1992, stated that “[Franklin Jones] i s p resently under my car e. Due to his back condit io n Mr. Jones will require a stool for sitting while performing his dutie s.” The employee’s contention that these letters constitute d notice is inconsistent

with his testimony that he himself did not know of the work-related nature of his back injury unti l May 1993. We again note tha t the emp loyer coul d not have received notice of the injur y -- through the lette rs or othe rwi se -- if the employee himself did not have notice of the work-r elated natur e of his condition until elev en months after the letters were w ritten and given to the employ er. Moreover, the

letters do not purport, even in g eneral terms, to establish any connection between the employee’s medical condition and his w ork. The letters merely

advised theemployer that it was preferabl e th at the employee be seated whi le doing his job and nothing
more. Given that

the employee had a long history of back problems extending to the 1970's, the fact that he was seeing a physician and was requesting to u se a stool while working in no w ay placed the employer on notice that the employee w as claiming a work-relat ed injury. In fact, the employee testified at trial that he di d not intend for the le tters to s erve as not ice of a wo rk-relate d injury. 2 The chancellor, viewing the letters in light of theemployee’s live tes timony on the subject, held that the letters failed to constitute adequate notice of a work -related injury. We agree.7 Having carefully review ed the record, mindful of the fact that issue s of credibility

in weight of oraltestimony are invol ved in this case, we are satisfied that the evidence does not

preponderate against the tr ial court’s dismissal of the c ase for failure to satisfy the notice req u irement of Tenn. Code Ann. § 50-6-201. The employer

did not have actual notice of the injury and did not receive notice until

the complaintwas filed on October 23, 1992,at least four months af ter the fac t. Even at that we are left with the employee’s testi mony that he did not know of the workrelated nature of his back injury until approximately

eleven months after he contends the employer had notice of the work-related nature of his backcondition and seven months after he filed a complaint seeking benefits. It is apparent that the chancel lor considered the conflicting versio ns given by the employee as to how and when notice
was given in concluding that notice was untimely. W e conclud e, as the chancellor did, that the employee did not gi ve notice of

his injury to the emplo yer within the 30 days required by Tenn. Code Ann. § 50-6-2 01. Also, the employee has failed to show a reasonable excuse for his failure togive notice within the prescribed time. It follows that the findings and con clusion s of the Special Workers’ Compensation Appeals Panel are rejected and the judgment of the trial court is reinstated.

For the foregoing reasons, the judgment ofthe trial court is affirmed. Costs are taxed agains t the employee.

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Frank F. Drowota, II I, Justice Concur: Anderson, C.J.; Holder, J.; Tomlin, J.; Reid, J. and Birch , J., not particip ating.