Ex parte Johns and Kirksey, Inc.
Circuit Court of Tuscaloosa County, Alabama (February 8, 2013)

The Alabama Court of Civil Appeals recently held that an employee presented substantial evidence that his cumulative-trauma injury occurred in the line and scope of his employment and therefore was compensable.

The plaintiff, Thomas Dodson, sued his employer, Johns and Kirksey, Inc. for workers’ compensation benefits. The employer is a metal-roofing and general contractor. Dodson’s original claim alleged that on November 4, 1996, he sustained an injury to the L5-S1 level of his lumbar spine while lifting a piece of structural steel in the course of his employment. Dodson’s injury was surgically repaired by Dr. Rick McKenzie. Dodson and his employer reached a settlement of his future compensation and vocational benefits as a result of the November 4, 1996 injury. Future medical benefits were left open under the terms of the settlement.

According to the evidence, Dodson returned to work for the employer following the surgery. He performed his full duties, which included performing manual labor. In his amended lawsuit Dodson alleged that after returning to work for the employer, he suffered a cumulative-trauma injury to his back and right leg as a result of performing manual labor in the course of his employment.

The trial court set the case for a hearing. The only issue to be decided at the hearing was whether Dodson sustained a compensable cumulative-trauma injury on February 29 and April 17, 2012. On August 9, 2012, the trial court entered an order determining that Dodson had sustained a cumulative-trauma injury that was compensable under the Act. Dodson was therefore entitled to medical benefits. The trial court deferred a decision on the issue of whether Dodson was entitled to permanent-disability benefits until he reached maximum medical improvement.

The employer filed a writ of mandamus with the appellate court challenging the trial court’s holding. Specifically, the employer argued that the trial court erred in determining that Dodson had proved by “clear and convincing evidence” that he sustained a compensable cumulative-trauma injury. The clear and convincing evidence standard is the highest burden of proof in a civil lawsuit.

To establish causation in a cumulative-injury case, the plaintiff had to prove that “the performance of his or her duties exposed him or her to a risk materially in excess of that to which people are exposed in their everyday lives.” The plaintiff had to prove that the danger or risk “was in fact a contributing cause of the injury.”

The Court of Civil Appeals denied the employers writ of mandamus. In doing so, the court examined the trial court’s judgment which held that substantial evidence was presented that Dodson performed a significant amount of bending, lifting and carrying in the line and scope of his employment. The trial court noted that these activities were not performed in sporadic, isolated instances, but were a routine part of Dodson’s everyday job.

At trial Dodson testified that he spent approximately 60% of his time on the job performing manual labor. A subcontractor for the employer testified that he worked on a general-contracting job with Dodson for 6 weeks in 2008 and Dodson spent approximately 75% to 80% of his time on that job performing manual labor. Another employee testified that Dodson spent the majority of his time performing manual labor.

Conversely, the two owners of the employer testified that from 2005 to 2010, Dodson spent 50% of his time performing manual labor. In addition, a laborer employed by the employer testified that Dodson spent approximately 35% to 40% of his time performing manual labor.

The Court of Civil Appeals held that the trial court, based on its weighing of the conflicting evidence, reasonably could have determined that Dodson performed a substantial amount of manual labor in the course of his employment and that the performance of that manual labor exposed him to a danger or risk materially in excess of that to which people are normally exposed in their everyday lives. The court also held that based upon the medical records and depositions of two treating physicians, the trial court reasonably determined that the manual labor Dodson had performed in the course of his employment was a contributing cause of his disc degeneration at L5-S1.