Dun & Bradstreet Corp. v. Jones

• Decision Date: 12 April 1996
• Parties: DUN & BRADSTREET CORPORATION v. Mary E.B. JONES. 2950081.
• Court: Alabama Court of Civil Appeals

Page 181

678 So.2d 181

DUN & BRADSTREET CORPORATION v. Mary E.B. JONES.

2950081.

Court of Civil Appeals of Alabama.

April 12, 1996.

Rehearing Denied May 17, 1996.

Don G. DeCoudres, Birmingham, for Appellant.

Graham L. Sisson, Jr., of Nakamura & Quinn, Birmingham, for Appellee.

J. Cecil Gardner of Gardner, Middlebrooks, Fleming & Hamilton, P.C., Mobile, for Amici Curiae Alabama AFL-CIO, United Paperworkers International Union and United Mine Workers of America.

MONROE, Judge.

This is a workers' compensation case.

On July 6, 1994, Mary E.B. Jones sued Dun & Bradstreet Corporation for compensation for injuries to her right hand and shoulder that she alleged had occurred in 1993 while she was working for Dun & Bradstreet.

Jones worked for Dun & Bradstreet for about 23 years, until August 1993. Over the years she worked at various positions, including typist, trade clerk, quality editor, outside reporter, and business analyst/inside reporter. When she left the company, she was working as a business analyst/inside reporter, a position that involved writing and typing.

Jones began having problems with her right hand in 1988, and in December 1991 she began to have serious problems with her right wrist. The pain in her wrist gradually increased until it began to interfere with her work in 1993. Additionally, in early 1992 Jones developed a "frozen shoulder," which she attributed to cold air constantly blowing on her shoulder from an overhead vent. The pain in her shoulder also gradually increased over the next year.

In November 1992, Jones was off work because of the pain in her wrist and shoulder, and at that time she sent a letter to her supervisor detailing her problems. From September 1991 until August 1993, when she stopped working for Dun & Bradstreet, Jones would occasionally miss work because of problems with her wrist and shoulder.

Dr. William Hall and Dr. John Featheringill treated Jones for the problems with her wrist and shoulder. Dr. Hall had first considered in 1988 that Jones might be suffering from carpal tunnel syndrome, but he did not begin actively treating her for carpal tunnel syndrome until November 1992, and he first related it to her work at that time. Additionally, he found that a sore shoulder that was getting cold air blown on it would interfere with her job.

After ore tenus proceedings in August 1995, the trial court entered an order on September 5, 1995, finding that Jones had sustained a 45% permanent partial disability and loss of earning capacity as a result of the injuries to her right shoulder and wrist and that she was entitled to workers' compensation for those injuries. Dun & Bradstreet appeals.

Dun & Bradstreet first contends that the trial court erred in finding that Jones's claim was not barred by the statute of limitations, as it had argued in its motion for summary judgment. The Alabama Workers' Compensation Act, after the 1992 amendments, provides that the definition of injury caused by an accident "shall include physical injury caused either by carpal tunnel syndrome disorder or by other cumulative trauma disorder if either disorder arises out of and in the course of employment...." § 25-5-1, Ala.Code 1975.

The Act further provides that "[i]n cases involving personal injury due to cumulative physical stress, compensation under this article shall be forever barred unless within two years after the date of the injury one of the parties shall have filed a verified complaint as provided in Section 25-5-88." § 25-5-80, Ala.Code 1975 (emphasis added).

Thus, this court must determine what serves as the date of the injury for cumulative trauma disorders, such as carpal tunnel syndrome, for purposes of determining the date from which the statutory limitations period would begin to run on the employee's claim for workers' compensation.

Dun & Bradstreet argues that American Cyanamid v. Shepherd, 668 So.2d 26 (Ala.Civ.App.1995), is controlling, and that the limitations period for Jones's claim began to run when Jones, as a reasonable person, should have recognized the nature, seriousness, and compensable nature of her injuries. Dun & Bradstreet argues that, at the latest, Jones should have recognized the nature, seriousness, and compensable nature of her injuries by March or May 1992, when she took off work because of her injuries.

Jones argues that Gattis v. NTN-Bower Corp., 627 So.2d 437 (Ala.Civ.App.1993), is controlling, and that the limitations period for her claim began to run at the date of her last exposure to the hazard that caused her injury, which was in August 1993. However, Jones says that even if American Cyanamid was controlling, a reasonable person would not have recognized the nature, seriousness, and compensable nature of her injuries until late 1992, when her doctor began actively treating her for carpal tunnel syndrome and linked it to her work.

In American Cyanamid, this court held that, for latent injuries, " '[t]he time period [of the statute of limitations] does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness, and compensable character of his injury or disease.' " American Cyanamid v. Shepherd, supra, quoting 2B A. Larson, The Law of Workmen's Compensation § 78.41(a) at 15-185, -186.

Jones argues that carpal tunnel syndrome and the problems with her shoulder are not the types of injuries contemplated by this court in American Cyanamid, but are instead cumulative physical stress injuries similar to the cumulative-effect "accident" in Gattis, supra. In Gattis, the employee, having been exposed to chemicals at work over a long period of time, filed a claim for workmen's compensation for injuries caused by that exposure. This court held that the date of the accident, for purposes of determining when the statutory limitations period would begin to run, was the date of the employee's last exposure to the hazard instead of the date the employee first experienced symptoms of his condition.

We agree with Jones that her injuries are not the type of latent injury contemplated by this court in American Cyanamid, but are instead more comparable to the cumulative-effect accident in Gattis. Both injuries sustained by Jones, the carpal tunnel syndrome and the shoulder injury, were not the result of a single "accident," but were instead, she alleges, caused over time by continuous exposure to cumulative stressors at the workplace.

We hold that in cases involving personal injury resulting from cumulative physical stress the date of the injury is the date of the employee's last exposure to the injurious job stimulation, for purposes of determining the date from which the limitations period begins to run on the employee's claim for workers' compensation benefits.

Next, Dun & Bradstreet argues that the trial court erred in finding that Jones's hand and shoulder injuries arose out of and in the course of her employment.

Because we have established that the date of Jones's injury was the date of her last exposure to the hazard in August 1993, the new standard of review established in the Workers' Compensation Act after the 1992 amendments applies. Under the new standard of review, this court will view the trial court's findings of fact in the light most favorable to those findings, and the trial court's judgment will not be reversed unless it is clear that its findings are manifestly contrary to the evidence as contained in the record as a whole or it is clear that fair-minded persons in the exercise of impartial judgment would adopt a contrary conclusion. Whitsett v. BAMSI, Inc., 652 So.2d 287 (Ala.Civ.App.1994).

The new Act provides:

"The decision of the [trial] court shall be based on a preponderance of the evidence as contained in the record of the hearing, except in cases involving injuries which have resulted from gradual deterioration or cumulative physical stress disorders, which shall be deemed compensable only upon a finding of clear and convincing proof that those injuries arose out of and in the course of the employee's employment.

"For the purposes of this amendatory act, 'clear and convincing' shall mean evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion."

§ 25-5-81(c), Ala.Code 1975.

Dun & Bradstreet argues that Jones did not present clear and convincing evidence that her hand and shoulder injuries arose out of and in the course of her employment and, therefore, that Jones did not meet the medical and legal causation requirements.

As stated above, the new Act provides that the definition of injury caused by an accident "shall include physical injury caused either by carpal tunnel syndrome disorder or by other cumulative trauma disorder if either disorder arises out of and in the course of employment." § 25-5-1, Ala.Code 1975.

As this court explained in Trinity Industries, Inc. v. Cunningham, 679 So.2d 253 (Ala.Civ.App.1995), the law has been that, except in the case of injuries caused by "excessive exposure" (such as heat exhaustion, pneumonia, and paint fumes absorption), the employee,...