KGS STEEL INC. v. McINISH, 2040526.

• Decision Date: 05 January 2007
• Docket Number: 2040526.
• Citation: 47 So.3d 749
• Parties: KGS STEEL, INC. v. Donald McINISH.
• Court: Alabama Court of Civil Appeals

47 So.3d 749

KGS STEEL, INC.

v.Donald McINISH.

2040526.

Court of Civil Appeals of Alabama.

June 30, 2006.

Rehearing Denied Jan. 5, 2007.

Joseph H. Driver and Bennett L. Pugh of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant.

E.L. Brobston of Brobston & Brobston, P.C., Bessemer, for appellee.

PER CURIAM.

In April 1999, Donald McInish sued KGS Steel, Inc. (“KGS”), in the Bessemer Division of the Jefferson Circuit Court, seeking an award of benefits under the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”). In his complaint, McInish alleged, among other things, that during his employment as a truck driver for KGS, he had been subjected to “violent bouncing and jerking movement” that had caused him to suffer from carpal tunnel syndrome and that that movement, combined with “strain caused by strapping and binding cargo loads,” had caused damage to his shoulders and neck; he further alleged that he had suffered both a temporary and a permanent partial disability as a result of his claimed injuries. After KGS had answered the complaint, the cause was stayed pending the resolution of receivership proceedings involving KGS's insurer; the cause was ultimately tried on April 14, 2004.

At trial, the parties stipulated that McInish had suffered a carpal-tunnel-syndrome injury that resulted in a 3% permanent partial impairment to both hands and that that injury was compensable. The parties also agreed that the real issues in the case were whether McInish's neck and shoulder problems were a result of an injury that arose out of and in the course of his employment and, if so, the degree of the loss of his earning capacity. Following the trial, the trial court entered a judgment determining that McInish was totally and permanently disabled as a consequence of his neck and shoulder conditions; that he had a 100% loss of earning capacity; that he had proven both medical and legal causation; and that KGS was liable for payment of certain medical expenses incurred as a result of treatment undertaken by a medical provider whom KGS did not authorize.

KGS appeals from that judgment, raising three issues: (1) whether McInish presented “clear and convincing” evidence that his neck and shoulder injuries were compensable under the Act; (2) whether the trial court erred in determining that McInish had suffered a permanent and total disability; and (3) whether the trial court erred in concluding that KGS was responsible for payment of medical treatment that KGS did not authorize.

We briefly summarize the facts giving rise to McInish's claim. McInish was a tractor-trailer truck driver for KGS, and there was evidence adduced at trial indicating that the suspension system of his assigned truck subjected him to violent vibrations. McInish testified that during the last year of his employment with KGS he had started to experience severe pain, numbness, and a tingling sensation in his hands and arms and that he had reported those symptoms to KGS.

McInish was referred by KGS to Dr. Donald Autry for treatment. Dr. Autry determined that McInish had carpal tunnel syndrome and performed a surgical carpal-tunnel-release procedure on each of McInish's wrists. In subsequent months, McInish reported further pain, including pain in his shoulder and upper arm. McInish was then referred to Dr. Richard Meyer, an orthopedic surgeon, for a second opinion; Dr. Meyer determined that McInish had problems in his neck and hand. Dr. Meyer suggested that McInish undergo a second carpal-tunnel-release procedure; however, because McInish was dissatisfied with the results of the carpal-tunnel-release procedures that had already been performed and because he did not want to go through another carpal-tunnel-release procedure if carpal tunnel syndrome was not his principal medical problem, McInish sought the opinion of his own personal physician without obtaining KGS's approval. McInish's personal physician then referred McInish to Dr. Cem Cezayirli, a neurosurgeon. Dr. Cezayirli, who was also not authorized by KGS to treat McInish, nonetheless admitted him into the hospital for cervical-disk surgery, during which significant ruptured-disk material and a herniated disk compressing the neuroforamen and the spinal cord were found. After his cervical-disk surgery, McInish was permitted by Dr. Cezayirli to return to work. However, McInish was reportedly unable to perform his job because of pain, and he has not worked since January 27, 1999.

Under the Act, our review of the “standard of proof” and “other legal issues” in an appeal from a judgment entered on a claim arising under the Act is to be undertaken “without a presumption of correctness.” Ala.Code 1975, § 25-5-81(e)(1). That legislative injunction is particularly significant in this case, which undisputedly involves a claim of disability arising from an alleged work-related injury to McInish's shoulders and neck resulting from gradual deterioration; such claims are, as we will discuss herein, subject to a heightened “standard of proof.”

In 1992, the Alabama Legislature made a number of procedural and substantive changes to the law governing workers' compensation claims. See Act No. 92-537, Ala. Acts 1992. In § 1 of that statute, the legislature observed:

“It is ... the intent of the Legislature ... to address difficulties in the current scheme that are producing a debilitating and adverse effect on the state's ability to retain existing industry and attract new industry. The Legislature finds that the current Workmen's Compensation Law of Alabama and other means of compensation or remedy for injury in the workplace ha[ve] unduly increased cost to employers in the state, driven away jobs, and produced no concomitant benefit. There is a total absence of any reliable evidence that the current act has resulted in fewer injuries on the job, and a considerable body of evidence that any added benefit to the worker is significantly offset by the resulting reduction in job opportunities.

“The Legislature has reviewed substantial evidence related to various types of cumulative physical stress disorders, cumulative trauma disorders and certain ‘natural aging’ disorders, including carpal tunnel syndrome, repetitive motion syndrome, and even back and neck infirmities that result from gradual deterioration or the natural process of aging. The Legislature has concluded that it is extremely difficult for the adjudicator of fact to determine whether these disorders are related to work or whether they result from some congenital defect, aging processes, or simply the routine activities of daily living.

“These claims also account for a substantial percentage of the workers' compensation claims in this state and are one of the contributing causes of the current workers' compensation crisis facing this state.”

Act No. 92-537, among other things, amended § 25-5-81, Ala.Code 1975, to state that the standard of proof in workers' compensation cases would be proof by the preponderance of the evidence “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.” Act No. 92-537, § 26 (emphasis added), now codified as Ala.Code 1975, § 25-5-81(c).

[1] [2] It is well settled that when the preponderance-of-the-evidence standard applies to a particular workers' compensation claim, such as one arising from an injury caused by a sudden trauma, an appellate court will not reverse a judgment based upon a particular finding of fact “if that finding is supported by substantial evidence-if that finding is supported by ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268-69 (Ala.1996) (quoting West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989)) (emphasis added). However, as the main opinion in Ex parte Russell Corp., 725 So.2d 264 (Ala.1998), indicates, a mere “substantial evidence” standard of appellate review is not to be applied if the “clear-and-convincing-proof” standard was applicable at trial. ¹ In other words, by incorporating a “clear and convincing” evidentiary standard into the Act with respect to gradual-deterioration and cumulative-stress injuries, the legislature has “require[d] a comparison between the supporting evidence and any countervailing evidence” on appellate review. See Ex parte Southern Energy Homes, Inc., 873 So.2d 1116, 1128 (Ala.2003) (Johnstone, J., dissenting, joined by Woodall, J.). ² Thus, “there is necessarily a ‘reweighing’ of the evidence at the appellate level[ ] for th[e] limited purpose” of determining whether factual determinations are supported by the appropriate level of evidence (here, “clear and convincing proof”). See id. at 1131 (Harwood, J., dissenting) (emphasis omitted).

KGS argues that McInish failed to present clear and convincing evidence of medical causation as required under § 25-5-81(c). As might be expected, resolution of that issue requires a close examination of the pertinent evidence adduced at trial that appears in the record on appeal.

[3] Dr. Meyer, McInish's authorized orthopedic surgeon, testified at his deposition that after a magnetic-resonance-imaging procedure had been performed in late 1998 and had revealed bulging cervical disks and neck-nerve pressure related to osteoarthritis, he had referred McInish to Dr. John S. Kirkpatrick, who had concluded that the arthritis in McInish's neck “would probably not be work related.” Dr. Meyer also opined that the majority of the pain McInish had experienced was related to that osteoarthritis and denied that McInish's occupation could have...