Alabama Power Co. v. Mackey
| Decision Date | 27 September 1991 |
| Citation | 594 So.2d 1238 |
| Parties | ALABAMA POWER COMPANY v. Jimmy Edward MACKEY. 2900591. |
| Court | Alabama Court of Civil Appeals |
Fred W. Thompson, Jr., Ashland, and John J. Coleman III and Drew P. Baker of Balch & Bingham, Birmingham, for appellant.
Lister H. Proctor of Proctor and Vaughn, Sylacauga, for appellee.
Jimmy Edward Mackey (Mackey) filed suit for workmen's compensation benefits against Alabama Power Company (APCO) because of a back injury, allegedly suffered while working as a local operation lineman reading meters for APCO.
After an ore tenus proceeding, the trial court found that an employment relationship existed between the parties on the date of the accident and that both parties were subject to the Workmen's Compensation Act of Alabama. The trial court also found that Mackey's condition was one of total and permanent disability as a result of his on-the-job injury, and ordered APCO to pay benefits and medical expenses accordingly. APCO appeals.
In reviewing workmen's compensation cases, this court must first look to see if there is any legal evidence to support the findings of the trial court. If such evidence is found, then we must determine whether any reasonable view of that evidence supports the trial court's judgment. Ex parte Eastwood Foods, Inc., 575 So.2d 91 (Ala.1991).
First, APCO argues that the trial court erred in finding that Mackey's injury arose out of his employment. The applicable statute requires that the injury be caused by an accident "arising out of" and "in the course of" his employment to be compensable. § 25-5-31, Code 1975.
According to Mackey, he was reading meters when a rainstorm caused the dirt road on which he was driving to become muddy. While attempting to drive his truck, he became stuck. Upon getting out of the cab to check his truck, both of his feet slipped, and as he fell he "caught on the post of the door." This caused sudden and severe pain to his lower back around the belt area and resulted in a herniated disc which required surgery.
It is undisputed that Mackey's injury occurred "in the course of" his employment. However, APCO argues that since Mackey was exposed to no greater risk than a person not so employed would have been exposed, namely getting out of the cab of a truck, Mackey's injury did not "arise out of" his employment, and he should not be able to recover.
The phrase "arising out of" is not synonymous with the phrase "in the course of," and an injury must "arise out of" one's employment to be compensable. Pope v. Golden Rod Broilers, Inc., 539 So.2d 313 (Ala.Civ.App.1989). Mackey's injury did not "arise out of" his employment unless the employment in some way caused his back injury. Pope. "The rational mind must be able to trace the injury to a proximate cause set in motion by the employment and not otherwise." Pope at 315.
Mackey's employment included reading meters, some of which were located on dirt roads that become muddy and slippery during and after rainstorms, and getting stuck is clearly a special hazard of that type employment. "An act is incidental to employment when it is necessary to the life, comfort, or convenience of the employee," and "[i]njuries which occur during the performance of such acts are compensable." Pope at 315. It is clear that Mackey's act of getting out of the stuck vehicle was necessary to his comfort or convenience. The trial court's finding was based on testimony from Mackey, whom it found to be credible, as to how the injury occurred. A rational mind would be able to trace his injury to a proximate cause set in motion by Mackey's employment; therefore, the trial court did not err as to this issue.
Next, APCO argues that the trial court erred in not finding that Mackey's current disability results from a preexisting condition. Section 25-5-58, Code 1975, provides that:
"If the degree or duration of disability resulting from an accident is increased or prolonged because of a preexisting injury or infirmity, the employer shall be liable only for the disability that would have resulted from the accident had the earlier injury or infirmity not existed."
APCO contends that Mackey's current injury is attributable to a history of back problems, which should preclude him from recovery. However, it is well-settled law in Alabama that an employee able to perform his work duties in a normal...
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