Cunningham v. Goodyear Tire & Rubber Co. , 1991 Tenn. LEXIS 248 ( 1991 )

OPINION

O’BRIEN, Justice.

Plaintiff, Jerrold L. Cunningham, appeals from denial of worker’s compensation benefits in the Obion Chancery Court. In dismissing the case the chancellor held that plaintiff did not suffer a compensable injury or accident while employed by defendant, Goodyear Tire and Rubber Company. The substantive issue for our consideration is whether the plaintiff may recover under the Worker’s Compensation Statutes for the purported aggravation of a preexisting arthritic condition. We have thoroughly reviewed this record and now affirm the judgment of the trial court.

The trial judge found in pertinent part that plaintiff began his employment with the defendant on 14 May 1984. He was 56 years of age at that time. According to Mr. Cunningham's testimony he began to hurt from the first day of his employment and continued to get increasingly worse until he was forced to go to first aid at the plant and finally was seen by Drs. O.K. Smith and E.C. Thurman. He was referred by Dr. Thurman to Dr. Lowell Robison, a rheumatologist, on 5 September 1984. Dr. Robison testified that plaintiff had a two or three year history of known osteoarthritis, primarily involving his neck. Original tests made showed normal range of motion in plaintiff’s joints, with complaints of pain at the extremes of motion of all joints. The diagnosis was generalized osteoarthritis which had been evident since either 1981 or 1982, and is a disease that develops over a long period of time. It was possible that Mr. Cunningham was having more pain before he went to work for Goodyear than he had related to the doctor. Dr. Robison further testified that he did not see Mr. Cunningham between 21 December 1984 and 6 March 1986. At that time two things were obvious, first that Mr. Cunningham had not been under treatment or medical supervision since his last visit, and second, this conflicted with the orders which had been directed for him.

The trial court further found that plaintiff’s condition was due to a general arthritic condition predating his employment at Goodyear Tire and Rubber Company. Though his employment may have aggravated his preexisting condition, there was no connecting industrial injury or accident that might be considered the triggering incident producing an acceleration of his condition.

Citing authorities he held that one is not entitled to compensation when his work aggravates a preexisting condition by making the pain worse. A specific injury or accident is required before the aggravation of the preexisting condition is compensable. He denied compensation and dismissed the proceedings.

This claim originated prior to 1 July 1985, therefore the applicable standard of review requires findings of fact shall be set aside only if there is no material evidence to support the judgment. Alley v. Consolidated Coal Co., 699 S.W.2d 147, 148 (Tenn.1985). There is little or no disputed evidence in the record and we have no hesitancy in holding that the findings of fact made by the chancellor are supported by material evidence.

The record shows that plaintiff was employed by Goodyear on 14 May 1984 as the culmination of an age discrimination suit. He was 56 years old. He testified that he was hurting on the first day on the job because he was not accustomed to hard labor. He first reported to first aid on June 15th, 1984 and subsequently on June 25th and 30th, July 2nd and 19th, August 4th, 14th, 15th, 21st and 27th. His complaints, as reported by him, were pain in his hand, wrist, right shoulder and right hand. He did not complain to his employer of any specific injury or accident, nor did he testify as to any such event. He did not complain of any problems with his knees or feet. The only medical proof in the record is from Dr. Lowell Robison who first saw plaintiff on 5 September 1984. He reported to Dr. Robison for evaluation and treatment of his arthritis. He gave a history of known osteoarthritis involving primarily his neck. His work had been of a sedentary nature prior to employment with Goodyear and he had been essentially asymptomatic until then. He reported that after beginning with Goodyear he developed pain and limitation of motion with swelling in his shoulders, elbows, wrists, hands, knees, ankles and feet. Physical examination was normal. Predominant findings were in his joints where defuse periarticular tenderness was found throughout most of the peripherial joints. There was no evidence of objective joint swelling or heat on this examination nor was there any effusive type swelling. Whether or not there may have been some soft tissue swelling was uncertain. There was a normal range of motion but Mr. Cunningham complained of pain at the extremes of motion in all of his joints. Dr. Robison diagnosed Mr. Cunningham’s condition to be generalized osteoarthritis, which is a form of arthritis, the cause of which is unknown, but is manifest primarily by a deterioration of the cartilages in the joints to the extent that the cartilages lose their ability to properly cushion or pad the joints. This kind of arthritis is sometime referred to as wear and tear arthritis because of the fact that people who continue to subject these joints to excessive physical activity experience a greater degree of wear and tear on the joints than they do if they are less strenuous with their joints.

It is the insistence of the plaintiff that his osteoarthritic condition was aggravated by his employment and by virtue of this aggravation he is entitled to compensation. He has cited a large number of cases to sustain his position. Unfortunately, the majority of the cases cited, with few exceptions, state in one fashion or another, that when an employee with a disabling injury or disease not related to employment suffers an aggravation to the disabling injury or disease by making the pain worse, the situation does not constitute an accident as the word is used in the compensation statutes. The few exceptions in the cases cited by plaintiff are totally contrary to his contention.

In this case the appellant has suffered for several years from a progressive type of arthritis. This condition being progressive in nature, would subject him to increasing pain and disability whether he worked or not. The theory of the complaint was that the conditions of his employment accelerated or aggravated his preexisting arthritic condition. It is conceded that the disease from which appellant suffers did not have its origin in his employment, nor is it an occupational disease. Where the employment does not cause an actual progression or aggravation of the underlying disease, but simply produces additional pain, there is substantial authority that a claim is not compensable when the disease itself was not an occupational disease but originated in conditions outside the employment.

Among the seminal cases involving the issue before us is Boling v. Raytheon Co., 223 Tenn. 528, 448 S.W.2d 405 (1969), in which the Court said:

“In substance, what we have here is an employee with a disabling injury or disease not related to employment, but the employment does aggravate the disabling injury or disease by making the pain worse. This situation does not constitute an ‘accident’ as this word is used in our workmen’s compensation statutes.”

In Smith v. Smith’s Transfer Corp., 735 S.W.2d 221 (Tenn.1987), the employee suffered from a progressive condition diagnosed as “thoracic outlet syndrome,” exacerbated by activity involving the use of her hands above the waist level. After extensive medical treatment and various surgical procedures a compensation suit was initiated. The trial court granted compensation. This Court reversed, finding there was no evidence that plaintiff’s complaint had its origin in anything connected to her employment.

In the instant case, as in Smith, supra, Mr. Cunningham’s work for Goodyear aggravated his preexisting condition by making the pain worse but it did not otherwise injure or advance the severity of his osteoarthritis. Plaintiff did not sustain an injury by accident within the meaning of the Worker’s Compensation Act and is not entitled to compensation, therefore the extent of his disability and the employer’s liability for future medical care is preter-mitted.

The judgment of the trial court is affirmed and plaintiff’s suit is dismissed. Costs are adjudged against the appellant.

REID, C.J., and DROWOTA and ANDERSON, JJ., concur. DAUGHTREY, J., dissents and files opinion.