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08/25/95 TRINITY INDUSTRIES v. VALLIE CUNNINGHAM

August 25, 1995

TRINITY INDUSTRIES, INC.
v.
VALLIE CUNNINGHAM



Appeal from Jefferson Circuit Court. (CV-92-9459).

Robertson, Presiding Judge, Yates and Monroe, JJ., concur. Crawley, J., concurs specially. Thigpen, J., concurs in the result.

The opinion of the court was delivered by: Robertson

ROBERTSON, Presiding Judge

Vallie J. Cunningham filed a complaint in the Jefferson County Circuit Court against his employer, Trinity Industries, Inc., seeking workers' compensation benefits. Cunningham alleged that on September 2, 1992, he had suffered a stroke which arose out of and in the course of his employment with Trinity, and that as a result of the stroke he had suffered a permanent partial disability or a permanent total disability.

Following an ore tenus proceeding and submission of briefs by both parties, the trial court entered a judgment finding that Cunningham had proven both legal and medical causation, that he had suffered a 100% loss of earning capacity as the result of a work-related stroke, and that he was permanently and totally disabled. The trial court awarded benefits accordingly.

On appeal, Trinity does not dispute that Cunningham is totally and permanently disabled, but raises the following two issues: (1) Whether Cunningham presented substantial evidence that the stroke he suffered was causally related to his employment at Trinity, and (2) Whether the trial court erred in allowing Cunningham to introduce his own deposition as substantive evidence after he had testified.

We first note that this case comes under the new Workers' Compensation Act (new Act). This court first addressed the new Act's standard of review in Whitsett v. BAMSI, Inc., 652 So. 2d 287 (Ala. Civ. App. 1994), wherein we adopted the following standard: We will view the facts in the light most favorable to the findings of the trial court. The trial court's judgment will not be reversed unless it is clear that the trial court's findings are manifestly contrary to the evidence as contained in the record as a whole or unless it is clear that fair-minded persons in the exercise of impartial judgment would adopt a contrary Conclusion. Id.

Trinity argues that Cunningham failed to prove both legal and medical causation, a two-prong test developed by this court after its creation in 1969.

In 1919, the legislature enacted the Alabama Workmen's Compensation Act (old Act) to become effective January 1, 1920, with appellate review by certiorari to the Alabama Supreme Court. In 1969, the legislature created the Court of Civil Appeals and jurisdiction of "all appeals in workmen's compensation cases" was transferred from the Alabama Supreme Court to this court; the legislature also provided that the decisions of the Alabama Supreme Court would govern the holdings and decisions of this court. 1969 Ala. Acts, No. 987. The old Act required that there be an accident *fn1 arising out of and in the course of employment, causing injury or death, for compensation to be awarded.

FIRST LEGAL CAUSATION TEST

Early Alabama Supreme Court cases developed the "excessive exposure" test in order to establish that there had been an "accident" within the intent of the old Act. The first case to refer to that principle was American Fuel & Clay Prods. Co. v. Gilbert, 221 Ala. 44, 127 So. 540 (1930), wherein the employee was struck and killed by lightning. In that case, our Supreme Court, quoting from Cudahy Packing Co. of Nebraska v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366 (1923), stated that if the position which the workman must occupy results in "excessive exposure" to the common risk, then it could be concluded that the accident arose out of the employment.

The "excessive exposure" test was actually developed in Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565 (1934), wherein the employee suffered from heat exhaustion. In Christison, our Supreme Court held that "if, in the performance of the duties for which he was engaged, ... it is necessary for the employee to expose himself to a danger, materially in excess of that to which people commonly in that locality are exposed, ... such excessive exposure may be found to have been the direct cause of the injury ...." Christison, 228 Ala. at 628, 154 So. at 569.

Later, in Pow v. Southern Constr. Co., 235 Ala. 580, 180 So. 288 (1938), the trial court found from the evidence that, in performing his duties, Pow had to get down into ditches, footings, foundations, and excavations wherein there was standing water; that he became wet and chilled therefrom; that the exposure and chill were greatly and materially in excess of that to which other people not similarly employed in said locality were exposed; that by reason of said exposure Pow contracted a severe cold and congested condition which was later diagnosed as bronchial pneumonia or bronchitis; and that the pneumonia or bronchitis caused Pow's death. The trial court, however, held that Pow's exposure and death were not caused by an accident within the meaning of the old Act and that Pow's dependent was not entitled, therefore, to receive compensation. Our Supreme Court, relying on its earlier decisions, held that "injury or death resulting from an exposure to the forces of nature, peculiar to the nature, time, and place of the employment, is an accidental injury arising out of and in the course of employment." Pow, 235 Ala. at 584, 180 So. at 291. In reversing the trial court's judgment, the Court held that if it was necessary for the employee to expose himself to a danger materially in excess of that to which other people were exposed, such exposure could be found to have been the cause of the injury. Id.

Then in Southern Cotton Oil Co. v. Wynn, 266 Ala. 327, 96 So. 2d 159 (1957), our Supreme Court addressed the necessity of proving "excessive exposure" in a stroke case. In Wynn, the trial court found that Wynn had suffered a stroke and that the cause of the stroke was the muscular strain and exertion employed by Wynn in the ordinary shoveling of steam coal. On certiorari review, one contention before the court was:

"(b) That 'even if the physical exertion engaged in by the employee contributed to a condition which brought about the hemorrhage, it was not an accident and not compensable within the purview of the Workmen's Compensation Act because the employee was engaged in the ordinary and regular performance of his duties; there was no overexertion and no extra hazardous circumstance which contributed to the injury.'"

Wynn, 266 Ala. at 329, 96 So. 2d at 160.

The petitioner, Southern Cotton Oil Co., contended that even though Wynn's injury was caused by the exertion of shoveling coal, the trial court could not conclude that the injury arose out of his employment without also finding that Wynn was subjected to unusual strain or overexertion or extra hazardous circumstances in the performance of his work. The petitioner relied on Pullman-Standard Car Mfg. Co. v. Lively, 239 Ala. 684, 196 So. 870 (1940) (heat exhaustion); Pow ; and Christison, (supra) . In affirming the trial court's judgment, our Supreme Court stated: "The rule which can be drawn from these cases is that when an injury to an employee results from exposure the injury cannot be regarded as arising out of his employment unless he is subjected to unusual risk and excessive exposure because of the nature of his work." Wynn, 266 Ala. at 332, 96 So. 2d at 163. The Court further stated: "It seems clear that this court has limited application of the foregoing rule to injuries resulting from exposure." Id. (emphasis added). Our Supreme Court held that "a finding by the trial court that the plaintiff had been subjected to unusual strain or overexertion was not necessary to support a Conclusion that the injury was caused by an accident arising out of his employment." Wynn, 266 Ala. at 333, 96 So. 2d at 163-64.

After the Court of Civil Appeals was created in 1969, the first case to apply the "excessive exposure" test was City of Tuscaloosa v. Howard, 55 Ala. App. 701, 318 So. 2d 729 (Ala. Civ. App. 1975), a heart attack case. In Howard, this court discussed Christison, Pow, and Wynn, in finding that "our courts [have come] to the Conclusion that if the job caused the injury it was an accident under the intent of the Act. ... We have arrived at the point of determining if the job caused the injury or death." Howard, 55 Ala. App. at 705, 318 So. 2d at 732. This court then, in reliance on Larson's treatise, 1A A. Larson, Workmen's Compensation Law, § 38.83, held that causation has two distinct "parts," legal and medical. This court defined legal causation by paraphrasing the "excessive exposure test" as set out in Pow, (supra) , as follows:

"If in the performance of the duties for which he is employed an employee is exposed to a danger or risk materially in excess of that to which people not so employed are exposed, and an injury occurs, such injury may legally be determined to have arisen from his employment and be an accident under the statute. Such can be the legal test of causation."

Howard, 55 Ala. App. at 705, 318 So. 2d at 732. This court then held that Howard, a fireman, had failed to show legal causation, i.e., "there was no evidence of strenuous activity, exposure to danger or risk different from others not employed as firemen." Howard, 55 Ala. App. at 706, 318 So. 2d at 733.

In Newman Bros., Inc. v. McDowell, 354 So. 2d 1138 (Ala. Civ. App. 1978), another heart attack case, this court ...


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