Ex parte Byrom

• Decision Date: 02 April 2004
• Citation: 895 So.2d 942
• Parties: Ex parte Richard BYROM. (In re Ceasco, Inc., d/b/a Skill Lube v. Richard Byrom).
• Court: Alabama Supreme Court

895 So.2d 942

Ex parte Richard BYROM. (In re Ceasco, Inc., d/b/a Skill Lube v. Richard Byrom).

1021113.

Supreme Court of Alabama.

April 2, 2004.

Rehearing Denied May 28, 2004.

Michael K. Timberlake of Siniard, Timberlake & League, P.C., Huntsville, for petitioner.

James L. Stirling, Jr., Birmingham, for respondent.

JOHNSTONE, Justice.

Richard Byrom sued his former employer Ceasco, Inc., d/b/a Skill Lube, for workers' compensation benefits for injuries he suffered from an on-the-job lightning strike. After trial on oral testimony and written exhibits, the trial court entered an order which reads, in pertinent part:

"I. FINDINGS OF FACTS.

"1. On July 24, 1998, Richard Byrom (Plaintiff) suffered injuries arising out of and in the course of his employment with defendant Ceasco, Inc., d/b/a Skill Lube. Plaintiff's injuries occurred when a telephone he was using was struck by lightning. He immediately felt severe pain on the left side of his head and hands and was subsequently taken to Huntsville Hospital and treated for injuries.

"....

"9. John B. Riser, a neurologist, was selected by the employer as an approved treating physician and first examined Plaintiff on February 16, 1999. Dr. Riser diagnosed Plaintiff as presenting with post-concussion syndrome with associated headaches and short-term memory loss and concluded that he had suffered an injury to his spinous process at the C-2 level. Dr. Riser concluded that the cause of his symptomatology and neurological problems were related to the lightning strike on work in July of 1998. Dr. Riser also agreed that the headaches, short-term memory loss, and the blacking out were the major symptoms of the post-concussion syndrome and that they were all related to the lightning strike in July, 1998.

"....

"II. CONCLUSIONS OF LAW

"....

"4. At trial the court considered not only the content of the testimony, but the manner and demeanor of the witnesses as they testified. The Court had the opportunity to observe the plaintiff as he testified. The Court considered all the medical testimony, medical evidence, testimony of the plaintiff, and the testimony of vocational experts offered by each party.

"5. Based on the evidence and testimony presented at trial, including, but not limited to the objective medical findings, physician's testimony, and records, physical impairment and restrictions assigned by Dr. John Riser, M.D., complaints of consistent pain in his neck, current medications, as well as Mr. Byrom's educational background, learning disability, work history, and the testimony of vocational experts, this court is reasonably satisfied that plaintiff is permanently and totally disabled under the Workers' Compensation Act."

The trial court awarded benefits accordingly. The order of the trial court does not discuss the legal theory of causation.

After the trial court denied a postjudgment motion filed by Ceasco, Ceasco appealed. On appeal, Ceasco argued that Byrom failed to prove that an accident arising out of his employment caused his injury, in that, Ceasco said, Byrom had failed to prove that his use of the telephone posed a risk of injury to him by a lightning strike materially greater than the common risk posed to other persons in the locality. Byrom argued that he had suffered an accidental injury arising out of his employment. Alternatively, Byrom argued that he had presented substantial evidence to prove legal causation as approved by Ex parte Trinity Industries, Inc., 680 So.2d 262 (Ala.1996).

The Court of Civil Appeals held:

"[W]e have concluded that the injury sustained by the worker, although certainly sudden and traumatic, was not an `accidental' injury as that term is used in Alabama's workers' compensation law. Instead, the worker suffered a nonaccidental injury.

"....

"... Unlike the typical `accident' case referred to in Ex parte Trinity Industries[, Inc., 680 So.2d 262 (Ala.1996),] where a hammer falls on a worker or the worker falls from a ladder, see Ex parte Trinity Industries, 680 So.2d at 266 n. 3,

the cases involving exposure to heat and cold, and more recently the cases involving heart attacks and strokes, present a challenge to a court attempting to determine if the injury or death actually `arose out of' the worker's employment. In the present case, we are faced with that same task. Does the injury caused by lightning in this case arise out of a worker's employment?

"... We, therefore, conclude that, based on [American Fuel & Clay Products Co. v. Gilbert, 221 Ala. 44, 127 So. 540 (1930)], the worker in the present case was required to present to the trial court evidence from which it could determine that the worker's employment exposed him to a risk of being struck by lightning materially in excess of the risk of being struck by lightning to which people are normally exposed in their everyday lives.

"....

"... [W]e have no testimony, other than the worker's report that he was on the telephone approximately 30% of his workday, indicating that the worker was exposed to any increased risk of being struck by lightning. This is simply not sufficient evidence to indicate that he was exposed to a risk of being struck by lightning that was materially in excess of the risk to which people are normally exposed in their everyday lives.

"... The worker was required to prove that his injury occurred in the course of and arose out of his employment. He did not prove that his employment exposed him to a risk of being struck by lightning materially in excess of the risk of being struck by lightning to which people are normally exposed in their everyday lives. Accordingly, we reverse the trial court's award of compensation to the worker and remand this cause with instructions that the trial court enter a judgment for the employer."

Ceasco, Inc. v. Byrom, 895 So.2d 932, 935-39 (Ala.Civ.App.2002).

Byrom petitioned this Court for a writ of certiorari to review the judgment of the Court of Civil Appeals. Byrom properly invoked our Rule 39(a)(1)(D) and (a)(1)(C), Ala. R.App. P., certiorari jurisdiction. Invoking Rule 39(a)(1)(D), he claims that the decision of the Court of Civil Appeals in this case conflicts with American Fuel & Clay Products Co. v. Gilbert, 221 Ala. 44, 127 So. 540 (1930), Ex parte Trinity Industries, Inc., 680 So.2d 262 (Ala.1996), and Morell v. Tennessee Valley Press, Inc., 716 So.2d 1282 (Ala.Civ.App.1998). Invoking Rule 39(a)(1)(C), he claims that the decision of the Court of Civil Appeals presents the question of first impression for this Court whether the lightning strike and its circumstances constitute an accident arising out of employee's employment as defined by the Workers' Compensation Act. We reverse and remand.

Byrom was the service manager of one of the automotive service and repair shops operated by Ceasco. Byrom worked six days per week. Monday through Friday he usually worked from 8:00 a.m. to 6:00 p.m., and on Saturday he worked from 8:00 a.m. to 5:00 p.m. He usually worked 50 to 60 hours per week.

Byrom's duties as service manager included opening and closing the shop, handling all customer relations, supervising service and repair work, diagnosing automotive problems, and occasionally assisting with oil changes, tune-ups, and "brake work." He spent at least 30% of his workday talking on the telephone with customers, other managers, vendors, and supervisors. Typically, Byrom answered about 100 telephone calls per day. He also used the telephone to check on the availability of parts, to order parts, to call about outstanding accounts, and to solicit service work from owners of large automobile fleets. Accordingly, Byrom spent about 15 to 18 hours per week talking on the telephone.

Most of his time on the telephone he spent ordering parts. No other employees ordered parts.

On July 24, 1998, the weather was stormy, with rain, thunder, and lightning. About 3:30 p.m., while leaning against a metal table in the office, Byrom was talking on a corded telephone to Doug Benson, the manager of the Ceasco shop in Cullman. While Byrom was talking on the telephone, William Brosch, an employee in the shop managed by Byrom, heard a clap of thunder and a split second later heard Byrom yell. Looking around the car he was working on, Brosch saw Byrom drop the telephone, grab his ear, and walk in circles.

According to Brosch, after Byrom walked around once or twice in a circle, Byrom's legs were shaking so much that he sat on the floor, where he sat rocking back and forth while holding his ear. Shop employees asked Byrom whether he was all right. He said he was nauseous. He was taken to the bathroom, where he vomited. Because his heart was fluttering, he decided he needed to go to the hospital. One of the shop employees drove Byrom to the emergency room of a hospital.

Byrom has little memory of July 24, 1998. He recalls talking on the telephone to the Cullman store manager. Byrom's next recollection is waking up on the floor. He recalls feeling severe pain in the left side of his body and going to the hospital. He does not recall yelling or walking in circles. He does not recall hitting his head but does recall severe pain in his head. After he returned to work, shop employees showed him where he was sitting when they found him. He was six feet away from the telephone. They told him that he was thrown six feet from where he had been talking on the telephone. Subsequent to Byrom's injury, because of a continual buzzing noise, the telephone he had been using had to be replaced with another telephone.

"On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals." Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala.1996). "The Work[ers'] Compensation Act, being remedial in nature, should be given liberal construction to accomplish the beneficent...