                   IN THE SUPREME COURT OF TENNESSEE  FILED
                             AT NASHVILLE
                                                      December 22, 1997

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
WILLIAM E. CUNNINGHAM,             )        FOR PUBLICATION
Administrator of the Estate of     )
ROBERT W. CUNNINGHAM, SR., and     )
ROBERT W. CUNNINGHAM, JR.,         )        FILED:   DECEMBER 22, 1997
                                   )
     Plaintiffs/Petitioners/       )
     Appellants                    )        DAVIDSON COUNTY
                                   )
v.                                 )
                                   )        HON. CAROL MCCOY,
SHELTON SECURITY SERVICES, INC.,   )           CHANCELLOR
and EMPLOYERS INSURANCE OF WAUSAU, )
                                   )
     Defendants/Respondents/       )        NO. 01-S-01-9701-CH-00011
     Appellees                     )




For Appellants:                              For Appellees:

TERRY R. CLAYTON                             H. MICHAEL BENNETT
Nashville, TN                                Nashville, TN




                                OPINION




REVERSED; REMANDED                                             BIRCH, J.
            In this worker’s compensation case, the trial court

granted   the    deceased    employee’s       representative       (“petitioner”)

permission to file an application for interlocutory appeal under

Tenn. R. App. P. 9.           We granted the application in order to

determine whether the trial court erred in ruling that the remains

of the employee be exhumed and autopsied.                Upon careful review of

the record, we find that the employer, Shelton Security Service,

Inc., and its insurance carrier, Employers Insurance of Wausau

(“respondents”), failed to make a timely request for an autopsy

after obtaining reasonable notice of its necessity. Thus, they are

not entitled to exhume and autopsy the remains of the deceased

employee.



                                        I



             The record in this case includes the pleadings, the

deposition      and   affidavits       of     medical     experts,     the   death

certificate, and the trial court’s findings entered November 19,

1996.        Pertinent      portions        thereof     indicate     that    Robert

W. Cunningham, Sr., the employee, worked as a security guard for

the respondent-employer, Shelton Security Services, Inc.                       The

employee was assigned to provide security in and about the Little

Barn, a Nashville convenience market.



             While performing his duties at the market on March 5,

1992, the employee became involved in a confrontation with either

two or three patrons whom he had asked to leave the market

premises.    The confrontation, though verbal only, was apparently a


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heated one.    Several minutes after this incident, the employee was

found unconscious in the front seat of his car.       Emergency medical

personnel responded to the scene, and he was transported to the

hospital by ambulance.     All efforts to revive him failed; he was

pronounced “dead on arrival” at the hospital. The medical examiner

certified the cause of death as “arteriosclerotic cardiovascular

disease.”     The death certificate, dated April 17, 1992, indicates

that no autopsy was performed.



                                   II



            The procedural history of this case is central to our

discussion.     On August 31, 1995, a petition for benefits claimed

under    worker’s   compensation   provisions   was     filed    by   the

petitioner.1    In an answer filed October 4, 1995, the respondents

denied that any injury arose out of or in the course of the

employment.     Also denied was the allegation that the employee

suffered an accidental injury or occupational disease.          Moreover,

the respondents stated that they did not know what caused the

employee’s death.



            Counsel for the petitioner took the deposition of Melvin

Lightford, M.D., on June 27, 1996.      Lightford opined, inter alia,

that the cause of death as certified by the medical examiner is not

always conclusive. Rather, because arteriosclerotic cardiovascular

disease is a common cause of death, it is routinely listed on the



     1
      A similar petition was filed in February 1993, and an order of
non-suit was entered January 31, 1995.

                                   3
death certificate as the cause of death in cases where no autopsy

has been performed.



            Also included in the record are the affidavits of Robert

C. Ripley, M.D., and Charles Harlan, M.D., both filed on October

28, 1996.     Ripley and Harlan, and Lightford as well, stated

essentially that the cause of the employee’s death could not be

ascertained with “absolute certainty” unless an autopsy were to be

performed.2



            On October 28, 1996, the respondents filed a motion in

the trial court for an order to exhume and autopsy the employee’s

remains on the grounds that the cause of death could not otherwise

be   ascertained.     The    trial   court   found   that   the   respondents

acquired    knowledge   of    the    necessity   for   an   autopsy   during

Lightford’s deposition of June 27, 1996.         The trial court further

found that the cause of death was obscure or in dispute and that

the respondents had requested the autopsy within a reasonable time

after Lightford’s deposition.



            The petitioner requested permission under Tenn. R. App.

P. 9 for an interlocutory appeal to review the challenged order on

grounds that no review could otherwise be obtainable after entry of

a final judgment. The trial court permitted the petitioner to file



      2
      However, we note that absolute certainty is not required to
prove cause of death in a worker’s compensation case. Reeser v.
Yellow Freight System, Inc., 938 S.W.2d 690, 692 (Tenn. 1997). At
this point, we make no determination as to whether there is
sufficient evidence from which the trial court may determine cause
of death.

                                      4
an application for permission to appeal to this Court, and we

granted the interlocutory appeal.    However, before oral argument

could be scheduled, the parties requested leave to submit the cause

on briefs; we granted that request also.



          Accordingly, we review the trial court’s ruling that the

respondents are entitled to the exhumation and autopsy of the

employee’s remains.   Because this issue is a question of law, our

review is de novo with no presumption of correctness.    Ridings v.

Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).



                               III



          Court-ordered autopsy in worker’s compensation cases is

governed by both statute and case law.     The controlling statute,

Tenn. Code Ann. § 50-6-204(e)(Supp. 1996), provides as follows:


               In all death claims where the cause
               of death is obscure or is disputed,
               any interested party may require an
               autopsy, the cost of which is to be
               borne by the party demanding the
               same.


          Thus, by statute, the party requesting the autopsy must

demonstrate that the cause of death “is obscure or is disputed.”

In their answer to the petition for worker’s compensation benefits,

the respondents denied that the employee suffered an accidental

injury or occupational disease and averred that they did not know

what caused the employee’s death.        Thus, cause of death has

apparently been a matter of dispute since the filing of the



                                5
petition, and there can be no serious challenge to the trial

court’s finding in this regard.



           Beyond those imposed by statute, two requirements are

imposed by judicial interpretation.              Chief Justice Green, writing

for the Court in Battle Creek Coal and Coke Co. v. Martin, 155

Tenn. 34, 290 S.W. 18 (1927), construed the subject statute as

being analogous to the provisions for an autopsy in insurance

contracts which are uniformly sustained if the demand for the

autopsy was made within a reasonable time.             Id. at 19.    Thus arose

the “timeliness” requirement.       Timeliness requires that the party

requesting the autopsy do so within a reasonable length of time

after having knowledge of its necessity.              The trial judge should

consider “the time elapsing prior to a motion or other proceedings

filed in court demanding an autopsy and the time the party so

demanding an autopsy had knowledge [or] reasonably could have had

knowledge such autopsy was needed to determine the cause of death.”

Robinson v. Nashville Mach. Co., 503 S.W.2d 90, 93 (Tenn. 1973).



           The second common law requirement for exhumation and

autopsy   under   Tenn.   Code   Ann.       §   50-6-204   was   articulated   in

Robinson. According to Robinson, the demand for an autopsy must be

reasonable as to the occasion for its exercise. The reasonableness

of the occasion of its exercise is determined by the presence or

absence of other credible evidence, absent an autopsy, upon which

the court can determine cause of death.              Id.




                                        6
            We do not quibble with the trial court’s finding of fact

that the respondents’ first acquired “knowledge of the need for an

autopsy” during Lightford’s deposition of June 27, 1996.              That

finding notwithstanding, there is a distinct difference between

actual “knowledge” as found by the trial court and reasonable

notice.    Under Robinson, the time when the respondents reasonably

could have had knowledge of the need for an autopsy, i.e., the time

when they acquired reasonable notice, must also be considered.



           We find that the respondents had reasonable notice from

the pleadings that causation would be an issue--perhaps the only

seriously contested issue.     Once the respondents took a position

regarding causation in their answer filed October 4, 1995, it

became    their   responsibility   to   develop   the    issue   promptly.

Especially is this true in light of the cause of death listed on

the certificate, which was available to all parties as early as

April 17, 1992.      The respondents filed the autopsy request on

October 28, 1996--over a year after they filed their answer, and

approximately four and a half years after the death certificate

became available.    This delay is longer than the delay in previous

worker’s compensation cases in which a request for an autopsy was

found untimely. Huey Bros. Lumber Co. v. Anderson, 519 S.W.2d 588,

590 (Tenn. 1975) (eight month delay unreasonable); Robinson, 503

S.W.2d at 93 (nine month delay unreasonable).           Therefore, within

the context of the facts and circumstances here presented, we find

that the respondents’ request for exhumation and autopsy was not

timely made.




                                    7
          Because   we   find   the   respondents’   unreasonable   delay

dispositive of the issue before us, we find it unnecessary to

discuss the “occasion” requirement articulated in Robinson.



         It results that the order of exhumation and autopsy is

vacated; the cause is remanded to the trial court for proceedings

consistent with this opinion.



          Costs of this cause are taxed against the respondents,

for which execution may issue if necessary.




                                          _______________________________
                                          ADOLPHO A. BIRCH, JR., Justice

CONCUR:
Anderson, C.J.
Drowota, Reid, Holder, JJ.




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