Flesher v. Saginaw Div., General Motors Corp.

• Decision Date: 01 November 1996
• Citation: 689 So.2d 113
• Parties: Donald Bruce FLESHER v. SAGINAW DIVISION, GENERAL MOTORS CORPORATION. 2951082.
• Court: Alabama Court of Civil Appeals

Page 113

689 So.2d 113

Donald Bruce FLESHER v. SAGINAW DIVISION, GENERAL MOTORS CORPORATION.

2951082.

Court of Civil Appeals of Alabama.

Nov. 1, 1996.

Rehearing Denied Dec. 6, 1996.

Certiorari Denied March 14, 1997

Alabama Supreme Court 1960448.

William D. Davis III of Davis, Dorin, Curtis & Neil, Birmingham, for appellant.

J. Glynn Tubb and Jenny L. McLeroy of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellee.

ROBERTSON, Presiding Judge.

On September 29, 1995, Donald Bruce Flesher filed a complaint against his employer, Saginaw Division, General Motors Corporation, in the Limestone County Circuit Court, seeking workers' compensation benefits. Flesher alleged that while acting in the line and scope of his employment he had been consistently exposed to hazardous chemicals, with his last exposure occurring on May 10, 1995, and that his consistent exposure had rendered him permanently and totally disabled. On October 18, 1995, Saginaw answered, asserting the affirmative defenses of the statute of limitations and lack of notice.

On February 16, 1996, Saginaw filed a motion for a summary judgment, along with a supporting affidavit and a memorandum brief. On March 18, 1996, Flesher filed a response in opposition to the summary judgment motion, filing with the response supporting affidavits and documents. On May 8, 1996, the trial court entered a summary judgment for Saginaw, holding that Flesher's claim had arisen on March 12, 1992, and that his action was therefore barred by the two-year limitations period of § 25-5-80, Ala.Code 1975.

Flesher appeals. He argues that the two years allowed by the statute of limitations began to run from the date of his last exposure, not his initial exposure.

A summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala.R.Civ.P. The burden is on the movant to show that there exists no genuine issue of material fact; however, once a party moving for a summary judgment makes a prima facie showing that no genuine issue of material fact exists, then the burden shifts to the nonmovant to rebut the prima facie showing. McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957 (Ala.1992). Additionally, this court's review of legal issues in workers' compensation cases is without a presumption of correctness. § 25-5-81(e)(1), Ala.Code 1975.

The record reveals the following facts. On March 12, 1992, Flesher inhaled fumes of an unknown origin that caused him to suffer a headache, a burning sensation in the back of his throat, and vomiting. Flesher promptly reported the incident and was treated by Saginaw's plant physician. Flesher reported similar symptoms and was again treated by the plant physician on March 16, 23, and 26, 1992.

Flesher reported to Saginaw's medical department on January 23, 1993, complaining of nausea from inhalation of smoke and fumes. Flesher continued working until June 1994, when the plant physician diagnosed him as having depression and anxiety, placed him on Prozac, and took him off work because of his "nerves"; he remained off work until January 1995. From June 1994 until January 1995, Flesher was paid disability payments pursuant to his long-term disability policies. On February 16, 1995, he suffered a severe reaction to chemical fumes that caused him to be taken to the emergency room at the University of Alabama at Birmingham Hospital. During his treatment in Birmingham, Flesher learned that he had had an allergic reaction to chemicals at Saginaw's plant. Flesher returned to work on May 8, 1995. Flesher worked May 8, 9, and 10, 1995; however, on May 10, 1995, he suffered another severe reaction to fumes that caused the plant nurse to place him on oxygen and that required that he leave the plant. That day was his last day of work at Saginaw's plant.

In Gattis v. NTN-Bower Corp., 627 So.2d 437 (Ala.Civ.App.1993), this court stated:

"We find that a rule defining an 'accident' always as a sudden occurrence--and which, for purposes of § 25-5-80, rigidly dates the 'accident' as the first manifestation of a debilitating condition--is inconsonant with the beneficent purposes of the Work[ers'] Compensation Act as well as with established interpretations of the act. It is apparent that the act is now to be construed so as to recognize the reality that certain 'accidents' occur over a period of time and that the disabilities resulting therefrom become symptomatic only over a period of time. That is, it has been recognized that there are cumulative-effect accidents as well as single-event accidents.

"Professor Larson has addressed the problems created through mechanical application of a narrow and outdated definition of accident to statutes of limitation for workmen's compensation claims:

" 'A rigid claims period may operate unfairly not only because the nature, seriousness, and work-connection of the injury could not reasonably be recognized by the claimant, or perhaps even by his doctor, but in many cases because the injury itself does not exist in compensable degree during the claims period. This latent or delayed injury problem presents in the sharpest relief the senselessness of uncompromising time periods. The classic illustration is that of the apparently trivial accident that matures into a disabling injury after the claim period has expired. A workman is struck in the eye by a metal chip, but both he and the company doctors dismiss the accident as a petty one, and of course no claim is made, since there is no present injury or disability. Eighteen months later a cataract develops as the direct result of the accident. If the statute bars claims filed more than one year after the "accident," and if the court applies the statutory language with medieval literalism, the workman can never collect for the injury no matter how diligent he is: He cannot claim during the year, because no compensable injury exists; he cannot claim after the year, because the statute runs from the accident.'

"2B A. Larson, The Law of Workmen's Compensation § 78.42(a) (...