Oden v. Gulf States Steel, Inc.

• Decision Date: 27 April 2001
• Citation: 797 So.2d 1093
• Parties: Allen ODEN v. GULF STATES STEEL, INC.
• Court: Alabama Court of Civil Appeals

797 So.2d 1093

Allen ODEN v. GULF STATES STEEL, INC.

2991094.

Court of Civil Appeals of Alabama.

April 27, 2001.

Donald R. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellant.

James W. McGlaughn of Inzer, Haney & McWhorter, P.A., Gadsden, for appellee.

CRAWLEY, Judge.

In January 1998, Allen Oden (the "worker") sued Gulf States Steel, Inc. (the "company"), for workers' compensation benefits, alleging that he had been injured in the line and scope of his employment and that the injury had caused him to suffer a permanent disability. Following an ore tenus hearing, the trial court held that the worker was not entitled to any benefits. The worker appeals.

The worker claimed that his injury resulted from

"operating a crane and experiencing substantial jarring, jolting and trauma to his cervical spine as a result of the crane running off tracks dropping heavy loads and otherwise causing the [worker] to experience trauma to his cervical spine."

We conclude that the worker's injury, repetitive trauma to the cervical spine, is a

"gradual deterioration or cumulative physical stress disorder[ ] 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 [worker's] employment."

Ala.Code 1975, § 25-5-81(c). See Ex parte Russell Corp., 725 So.2d 264 (Ala. 1998); Zeanah v. Stewart Animal Clinic, P.C., 752 So.2d 505 (Ala.Civ.App.1999); BE & K, Inc. v. Weaver, 743 So.2d 476 (Ala.Civ.App.1999); and Dun & Bradstreet Corp. v. Jones, 678 So.2d 181 (Ala.Civ.App. 1996).

The worker argues that he presented clear and convincing evidence indicating that his injury arose out of and in the course of his employment. The worker presented expert medical evidence that indicated his work might have, or possibly had, contributed to his condition. The company presented evidence indicating that the worker was malingering and that the worker had congenital spinal problems that were not work-related. We conclude that the worker's evidence—evidence indicating that he might have had, or possibly had, a work-related condition —when compared with the company's evidence—evidence indicating that the worker's problems were not work-related or were exaggerated—cannot be considered "clear and convincing evidence" indicating that his injury arose out of and in the course of his employment. Therefore, we affirm the trial court's judgment denying him benefits.

AFFIRMED.

PITTMAN, J., concurs.

MURDOCK, J., concurs specially.

THOMPSON, J., concurs in the result.

YATES, P.J., dissents.

MURDOCK, Judge, concurring specially.

The dissent does a thorough job of reviewing the evidence favoring the worker's claim for workers' compensation benefits. I agree that there is substantial evidence from which the trial court could have found in favor of the worker.

As the majority notes, however, there also is substantial evidence in the record from which the opposite conclusion could have been, and was, drawn by the trial court. The worker claims compensation for an injury resulting from cumulative physical stress. Under Ala.Code 1975, § 25-5-81(c), the worker must prove by "clear and convincing evidence" that such an injury arose out of and in the course of his employment. Upon a review of all of the evidence, it is my opinion that the trial court could have concluded that this burden was not met with sufficient credible evidence. Similarly, the trial court could have found that the evidence as to the extent of the alleged disability was not substantial and credible. The trial court specifically found:

"[M]uch of the employee's testimony was not credible, based on observation of demeanor, comparison with records and other substantiated testimony and the like. Because much of the plaintiff's case is built upon his own testimony and the testimony of doctors relying on the employee's history and the like, the employee cannot under the present testimony, sustain his burden of proof as to entitle him to recovery under the workers' compensation act of the state of Alabama."

In an ore tenus, nonjury proceeding, "the trial court is free to choose which evidence it believes, and when conflicting evidence is presented, the findings of the trial court are conclusive, if supported by the evidence." Ivie v. Winfield Carraway Hosp., 678 So.2d 1190, 1193 (Ala.Civ.App. 1996); accord Chancey v. J.Q.H., Inc., 724 So.2d 548 (Ala.Civ.App.1998). Nor can this court reweigh the evidence in such a case. Ex parte Golden Poultry Co., 772 So.2d 1175, 1177 (Ala.2000).

I therefore concur.

YATES, Presiding Judge, dissenting.

Oden was first employed by Gulf States in April 1977. In August 1991, he was involved in an automobile accident. He received chiropractic treatment from Dr. Michael McClellan after the accident. Oden first visited Dr. McClellan on August 21, 1991, complaining of sharp pain in his right shoulder, trapezius, and pectoral region, which radiated into his right arm. Dr. McClellan's examination revealed muscle spasms in the trapezius and right scapula area and a decrease in the cervical range of motion, with bilateral pain. Dr. McClellan's examination of Oden on September 13, 1991, again revealed a decrease in the cervical range of motion, with pain. Dr. McClellan last saw Oden on October 11, 1991.

Oden worked as a "pit-crane operator" from 1986 to the early part of 1996. As a pit-crane operator, he operated an over-head crane that is attached to rails that are suspended above the ground. The crane moves back and forth on these rails, lifting and lowering the payload below. Because of a change in the union agreement, he was "rolled off" that job in early 1996 and was replaced by an older, less experienced employee. Oden was transferred to the "slab yard" and worked there as a "yard-crane operator," which is a lower-paying position than pit-crane operator.

Oden testified that the rails on the yard cranes were "wavy" and that the wheels on the yard cranes would come untracked from the center of the rails and that this would cause the flange of the wheel to "run up" on the edge of the rail and then suddenly drop approximately one to two inches. The drop, he said, resulted in a sudden jolt. Oden stated that the yard cranes were "bouncing and beating [his] brains out." He testified that this would occur approximately 12 times during a shift. He alleged in his complaint that because of the jolting of his cervical spine as a result of operating the crane he began to experience weakness and discomfort in his upper extremities and some numbness in his left upper extremity, with pain radiating into his left upper extremity. Oden testified that he informed Donnie Richardson, his supervisor, of the problems he was having with his cervical spine as a result of operating the cranes.

Oden was initially treated by Dr. William Weaver, the Gulf States doctor, who referred him to Dr. Martin Jones on January 27, 1997. Oden complained of neck pain, bilateral arm pain, and pain between his shoulders, which he said had progressively worsened over the previous month. Oden informed Dr. Jones that he had changed jobs at Gulf States and that he thought his problems were work related. He also informed Dr. Jones that he had previously injured his neck in the 1991 automobile accident. Dr. Jones's physical examination revealed that Oden had some loss of range of motion in his neck and some loss of strength in his triceps muscle. Dr. Jones ordered an MRI, an EMG nerve-conduction study, and a myelogram, and he prescribed medication. Dr. Jones next saw Oden on February 20, 1997. At that time, the nerve-conduction study was normal; however, the MRI indicated a disc protrusion with a spur at the C5-6 level. The MRI also indicated some mild degenerative changes in Oden's cervical spine. The myelogram also revealed the disc protrusion at the C5-6 level, with no nerve compression. Dr. Jones testified that he recommended an epidural block and suggested conservative treatment.

Oden reported to the Gulf States dispensary on April 10, 1997, stating that he was unable to wear his hard hat because of the pain in his neck. Although the dispensary notes indicate that Oden had reported an incident that had occurred at home, an incident in which he fell several feet from a ladder, Oden testified that he did not recollect falling from a ladder at home.

Oden last saw Dr. Jones on May 8, 1997, complaining of neck and left-arm pain. Dr. Jones testified that he recommended continuing Oden on conservative nonsurgical treatment. Dr. Jones did not take Oden off work and did not place any restrictions on him.¹

Dr. Jones testified that it was possible that the disc protrusion located at the C5-6 level was related to the 1991 automobile accident. He further stated that the neck pain Oden was experiencing could be muscular in nature or could be related in part to the disc protrusion. Dr. Jones testified that it was possible that wearing a hard hat over an eight-hour period could aggravate Oden's neck symptoms. He also testified that it was possible that a fall from a ladder could cause a mild or asymptomatic condition to worsen or to become symptomatic. He further testified that trauma could aggravate an underlying condition and thereby cause it to become symptomatic.

Oden was next treated by Dr. Gus Prosch, Jr., on June 23, 1997. Dr. Prosch diagnosed Oden with Lieou Barre Syndrome, which is a stretching of the cervical ligaments. Dr. Prosch noted that Oden's job, which caused a jarring of the cervical spine, was not conducive to the adequate healing of his condition. Dr. Prosch treated Oden with injections and released him to return to work with no restrictions, in August 1997.

Oden was scheduled to return to work in August 1997. As part of a return-to-work physical examination given on August 22, 1997, he was given a drug test, which he failed. He was terminated from Gulf States on October 13, 1997, for violation of its...