City of Tuscaloosa v. Howard

• Decision Date: 27 August 1975
• Citation: 55 Ala.App. 701,318 So.2d 729
• Parties: CITY OF TUSCALOOSA v. Morris D. HOWARD. Civ. 507.
• Court: Alabama Court of Civil Appeals

Page 729

318 So.2d 729

55 Ala.App. 701

CITY OF TUSCALOOSA v. Morris D. HOWARD.

Civ. 507.

Court of Civil Appeals of Alabama.

Aug. 27, 1975.

J. Wagner Finnell and Glenn N. Baxter, Tuscaloosa, for appellant.

Zeanah, Donald, Lee & Williams, Tuscaloosa, for appellee.

WRIGHT, Presiding Judge.

This is a workmen's compensation case.

Plaintiff had been employed as a fireman by the City of Tuscaloosa for nearly 20 years when on December 8, 1972, he suffered a heart attack. While on duty as a Lieutenant in the Fire Department on November 28, 1972, and performing routine duties of housekeeping, plaintiff felt chest pains which radiated into his left arm. He informed his co-workers of his pain. He rested for a while and remained on the job until his shift was over at 6:30 A.M. on November 29. After finishing his shift he reported to his second job with the Credit Bureau as a collector. He worked Monday, the 29th, though he felt some pain. He also worked as a collector on November 30. After going home from work on November 30, he again felt pain and reported to his physician by phone. He was instructed to report to the emergency room of the hospital. After rests and electrocardiogram he was placed in an intensive care unit. He remained in that unit for two days and was moved to regular care room. On December 5, he again suffered pain and was returned to intensive care. At that time it was determined that he had suffered a heart attack or a myocardial infarction. Plaintiff remained hospitalized until December 22, 1972, and was not permitted to return to his duties until March 15, 1973.

On May 29, 1973, he filed for compensation under the Workmen's Compensation Act. Trial was had on May 15, 1974. Judgment granting compensation was entered by the court on December 23, 1974.

Plaintiff presented his claim under three alternative theories. The court found compensation due under each theory. Defendant charges error in each finding.

The first theory was that plaintiff was subject to the Workmen's Compensation Act as an employee of the City of Tuscaloosa and that he had suffered an accident resulting in bodily injury, a heart attack, while engaged in the line and scope of his employment.

The second theory was that plaintiff was entitled to compensation under the general occupational disease provisions of Title 26, Article 2C, i.e., that plaintiff's injury resulted from heart disease arising out of his employment as a fireman.

The third theory was that he became disabled as a fireman due to heart disease under Title 37, Section 450(4) of the Code (known as The Fireman's Heart and Lung Disability Act passed by Legislature in 1967,) and was entitled to workmen's compensation by the provisions of that act.

Our review of the judgment in workmen's compensation cases is limited to determining if there is any legal evidence to support the finding of fact by the trial court and if the correct law was applied to such facts. Reynolds Metals Company v. Gray, 278 Ala. 309, 178 So.2d 87, and cases cited therein. With such rule in mind we will examine the findings and judgment of the court as to each of the theories of recovery. If one of them is sufficient in fact and law the judgment may not be disturbed.

Defendant assigns as error the finding of the trial court that plaintiff sustained an injury by accident arising out of and in the course of his employment.

Sec. 262 of the Act defines 'accident' as 'an unexpected or unforeseen event, happening suddenly and violently, . . . producing at the time injury to the physical structure of the body by accidental means.' The cases applying this definition are legion in this state and others. Many law review articles and treatises have been written concerning its meaning and application. Its application has been particularly difficult in heart attack cases. The results of its application have been varied and often difficult to distinguish on the facts presented. For many years the appellate courts of this state held that 'accident' related to the event causing the injury rather than the result, and that such event must happened suddenly and violently, be of an unusual nature and foreign to the usual occurrences on the job. An example of such interpretation is the case of Centry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530. Beginning with the case of Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565, and finding full expression in the case of Pow v. Southern Const. Co., 235 Ala. 580, 180 So. 288, our courts came to the conclusion that if the job caused the injury it was an accident under the intent of the Act. The requirement that there must be shown a violent and unusual event which causes the injury was replaced by the principle that there was an accident if the result was unexpected and unforeseen and it was caused by the job. We have arrived at the point of determining if the job caused the injury or death. Southern Cotton Oil Co. v. Wynn, 266 Ala. 327, 96 So.2d 159; Reynolds Metals Co. v. Gray, supra; B. F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37.

As pointed out by Larson in his treatise, Workmen's Compensation Law, Vol. 1A, Sec. 38.83, the essence of the problem, particularly in heart attack cases is causation. How is it to be determined that the job caused the heart attack? It is certainly not enough to show that plaintiff, a fireman, had a heart attack, especially if, as in this case, the attack did not occur on the job but some 11 days later.

Larson points out that causation has two distinct parts: the legal and the medical. He says:

'The law must define what kind of exertion satisfies the test of 'arising out of the employment'; then the doctors must say whether the exertion which has been held legally sufficient to support compensation has in fact caused the heard attack.'

How to define the legal test of cause of injury arising from an act of employment? It surely cannot be limited to some unusual strain or exertion not ordinary to the job. Of course, in case of occurrence of an unusual exertion or happening, the determination of legal causation is generally made easier. It appears that the proper test was set out in Pow v. Southern Construction Co., supra, which we paraphrase 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. However, the medical test of causation must also be met--that is, that such exposure, though operating with or upon other exposure common to all, was in fact, the contributing cause of the injury. This test meets the employment versus non-employment exertion test of Larson stated in 65 Mich.L.Rev. 441.

Applying this test to the facts of the instant case, we are unable to find legal evidence to support either the legal test or the medical test of causation.

There is no evidence that when plaintiff first began to suffer pain in his chest and arm on November 28, that he was undergoing or had recently undergone strain or exertion of such a nature as could be classified so different from others not employed as fireman as to be an accident. For more than 24 hours prior to the onset of pain there had been no fire alarm; there was no evidence of physical or emotional strain. He had been on duty but only doing routine maintenance and housekeeping chores. There was no evidence that he had not eaten and slept at normal times. In fact, there was no evidence of any particular strain or exertion on his job for the prior month. He had worked his job as a fireman and a second job of bill collecting in his off-duty hours. There was no evidence of strenuous activity, exposure to danger or risk different from others not employed as fireman. Though it was said in Reynolds v. Gray, supra, quoting from Pow, supra that it is not necessary to show unusual strain or overexertion it is necessary to show that the strain and exertion of his work caused the injury. In Reynolds, supra, it was shown that the job entailed lifting several heavy pieces of metal in a short time while exposed to temperatures of 1350 degrees Fahrenheit. It is clear that Reynolds stands for the proposition that the evidence must show that the employee was involved in, or exposed to some sort of activity prior to or at the time of the attack or the onset of it which could satisfy the legal test of accidental causation. No such evidence is shown by the evidence of this case.

We go further and state that we find no legal evidence to support the medical test of causation. There is no testimony that any activity of plaintiff at or prior to the onset of pain in any way caused such pain or his subsequent heart attack.

We must therefore hold that plaintiff suffered no accident within the definition of the Workmen's Compensation Act. To do otherwise, under the evidence, would be to hold that any fireman suffering a heart attack would be entitled to workmen's compensation and his employer an insurer against heart attacks.

Plaintiff's second alternative for recovery was that his heart attack resulted from an occupational disease under Title 26, Chapter 5, Article 2C. This is the first action to establish a heart attack as an occupational disease to reach an appellate court since Article 2C was enacted by the legislature in 1971. It is therefore necessary to give the provisions of the Article close attention.

One effect of the occupational disease act is to remove the strict requirement of proof that the injury occurred by accident:

'Where the employer and employee are subject to the provisions of Chapter 5, Title 26, Code of Alabama 1940, as amended, the disablement or death of an employee caused by the contraction of an occupational disease as hereinafter defined,...