REL: 01/05/2007 KEITH SISTRUNK v. SIKORSKY SUPPORT SERVICES, INC.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2006-2007
_________________________
2050622
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Keith Sistrunk
v.
Sikorsky Support Services, Inc.
Appeal from Pike Circuit Court
(CV-02-23)
BRYAN, Judge.
Keith Sistrunk appeals a workers' compensation judgment
insofar as it determined that an injury to Sistrunk's left
shoulder was not compensable under the Alabama Workers'
Compensation Act, § 25-5-1 et seq., Ala. Code 1975. Because
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we conclude that the trial court misapplied the applicable
law, we reverse the judgment insofar as it determined that the
injury to Sistrunk's left shoulder was not compensable, and we
remand the case.
Sistrunk worked as a mechanic for Sikorsky Support
Services, Inc. Sistrunk sued Sikorsky Support, seeking
workers' compensation benefits for injuries to his right
shoulder. Sistrunk amended his complaint to allege that he
also had injured his left shoulder by overcompensating with
his left arm for his right-shoulder injuries. Sistrunk and
Sikorsky Support later stipulated that Sistrunk had sustained
compensable injuries to his right shoulder as a result of
accidents at work on September 20, 2000, and September 17,
2002. The case proceeded to trial, in which the only two
issues to be determined by the trial court were: (1) the
nature and extent of Sistrunk's disability; and (2) whether
the injury to Sistrunk's left shoulder was a compensable
injury under the Alabama Workers' Compensation Act.
At trial, the trial court received oral testimony from
Sistrunk and Dana Davis, an environmental-health-and-safety
manager employed by Sikorsky Support. The trial court also
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received the deposition testimony of Sistrunk and Dr. Dexter
Walcott, who had treated Sistrunk after his September 2002
accident. In his deposition testimony, Dr. Walcott testified
that he placed Sistrunk on light-duty work restrictions
following the accident in September 2002 in which Sistrunk
injured his right shoulder. The light-duty work restrictions
imposed by Dr. Walcott included no heavy lifting with the
right arm and no overhead work with the right arm. Dana Davis
testified that Sistrunk's light-duty activities consisted of
shredding paper and sorting small parts, such as nuts, bolts,
and washers.
Dr. Walcott testified that Sistrunk first complained of
an injury to his left shoulder in December 2002. Sistrunk
testified that he progressively began to experience pain in
his left shoulder following the injuries to his right
shoulder. Sistrunk informed Dr. Walcott that he believed that
the left shoulder had been injured because of overuse of the
left arm while Sistrunk's right arm was injured. Dr. Walcott
diagnosed Sistrunk's left-shoulder injury as a torn rotator
cuff.
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Dr. Walcott opined that Sistrunk's left-shoulder injury
was not related to the light-duty work that Sistrunk had been
performing after the September 2002 accident. Dr. Walcott
stated that Sistrunk's left-shoulder injury "could" be related
to "overcompensation" for the right-shoulder injuries and that
it was "possible" that the left-shoulder injury was related to
this "overcompensation." It appears that Dr. Walcott's use of
the word "overcompensation" in this context may have been a
reference to "overcompensation" at work only. Dr. Walcott
testified that it was "probable" that Sistrunk's left-shoulder
injury was due to "overcompensation" if Sistrunk performed no
other activities with his left arm other than the light-duty
activities that he performed while at work. Dr. Walcott also
testified that Sistrunk would not have experienced
"overcompensation of his left shoulder" were it not for the
injuries to his right shoulder.
On April 6, 2006, the trial court entered a judgment
determining that Sistrunk had sustained a permanent partial
disability as a result of the injuries to his right shoulder
and that Sistrunk's left-shoulder injury was not compensable
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under the Alabama Workers' Compensation Act. Sistrunk timely
appealed the judgment to this court.
Section 25-5-81(e), Ala. Code 1975, provides the
applicable standard of review in workers' compensation cases:
"(1) In reviewing the standard of proof set
forth herein and other legal issues, review by the
Court of Civil Appeals shall be without a
presumption of correctness.
"(2) In reviewing pure findings of fact, the
finding of the circuit court shall not be reversed
if that finding is supported by substantial
evidence."
On appeal, Sistrunk argues that the trial court erred by
concluding that the torn-rotator-cuff injury to his left
shoulder was not compensable. It is undisputed that the
injuries to Sistrunk's right shoulder are compensable.
Sistrunk argues that the injury to his left shoulder is
compensable pursuant to the "successive-compensable-injury
test."
"Our supreme court adopted the
successive-compensable-injury test in Ex parte Pike
County Commission, 740 So. 2d 1080 (Ala. 1999). The
court explained the test as follows:
"'When determining whether a successive
injury is compensable, the general rule is
that "[w]hen the primary injury is shown to
have arisen out of and in the course of
employment, every natural consequence that
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flows from the injury likewise arises out
of the employment, unless it is the result
of an independent intervening cause
attributable to [the] claimant's own
intentional conduct." 1 Larson, [Larson's
Workers' Compensation Law], § 13.00
[(1998)]. In applying this rule ..., the
Supreme Court of Appeals of West Virginia
held:
"'"[I]f a worker's compensation
claimant shows that he received
an initial injury which arose out
of and in the course of his
employment, then every normal
consequence that flows from the
injury likewise arises out of the
employment. If, however, a
subsequent aggravation of the
initial injury arises from an
independent intervening cause not
attributable to the claimant's
customary activity in light of
his condition, then such
aggravation is not compensable.
"'"...."
"'Wilson v. Workers' Compensation Comm'r,
174 W. Va. 611, 616, 328 S.E.2d 485, 490
(1984); see also Lou Grubb Chevrolet, Inc.
v. Industrial Comm'n, 174 Ariz. 23, 26, 846
P.2d 836, 839 (Ariz. App. 1992) ("[An]
employee's reasonable conduct in causing a
later nonindustrial injury does not relieve
the employer of liability if the later
injury is the 'direct and natural result'
of the compensable work injury"). Thus, "a
subsequent injury, whether an aggravation
of an original injury or a new and distinct
injury, is compensable if it is the direct
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and natural result of a compensable primary
injury." 1 Larson, supra, § 13.11.'
"740 So. 2d at 1084.
"... The supreme court has also stated, 'Under
the "successive-compensable injury" test, the issue
is not whether the primary injury caused the second
[non-work-related] accident.' Ex parte Dunlop Tire
Corp., 772 So. 2d 1167, 1171 (Ala. 2000) (emphasis
added [in Kent])."
Landstar Ranger v. Kent, 828 So. 2d 322, 324 (Ala. Civ. App.
2002).
In concluding that Sistrunk's left-shoulder injury was
not compensable, the judgment of the trial court focused on
Sistrunk's light-duty work activities following his rightshoulder
injuries. The trial court's judgment stated, in
pertinent part:
"The Court finds [that Sistrunk's] left shoulder
injury is not compensable under the Alabama Worker's
Compensation Laws and was not caused by or related
to the right shoulder injury ....
"The Court further noted [that Sistrunk's]
physician[, Dr. Walcott,] admitted that he did not
think that [Sistrunk's] left shoulder injury was due
to activities at work. Based on the fact that
[Sistrunk] was on light duty such as shredding paper
for 2 months and then was placed at a desk sorting
small parts (nuts & bolts), [Sistrunk's] injury to
his left shoulder is not work related.
"....
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"... [T]he Court finds that [Sistrunk] did not
sustain the burden of proof necessary so as to
entitle him to recover under the Worker's
Compensation Laws of the State of Alabama nor
sustain the burden of proof required so as to
substantiate the allegation that he sustained any
compensable left shoulder injury under said laws.
In sum, it appeared to the Court that from the
medical testimony presented by Dr. Walcott, and
[from Sistrunk's] work restrictions, the trial court
cannot properly find that the left rotator cuff
injury is compensable because it is not a natural
and direct result of the right shoulder injury."
It appears from the judgment that the trial court
concluded that, due to the light-duty nature of Sistrunk's
work activities following his right-shoulder injuries,
Sistrunk's left-shoulder injury was not a "natural and direct
result" of his right-shoulder injuries. However, a
determination whether Sitrunk's left-shoulder injury is a
"natural and direct result" of his right-shoulder injuries is
not limited to an evaluation of Sistrunk's work activities
after his earlier injuries. As we have noted, "'"[i]f a
worker's compensation claimant shows that he received an
initial injury which arose out of and in the course of his
employment, then every normal consequence that flows from the
injury likewise arises out of the employment."'" Landstar
Ranger, 828 So. 2d at 324 (quoting Ex parte Pike County
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Comm'n, 740 So. 2d 1080, 1084 (Ala. 1999), quoting in turn
Wilson v. Workers' Comp. Comm'r, 174 W. Va. 611, 616, 328
S.E.2d 485, 490 (1984)). For example, the employee in Ex
parte Pike County Commission
"had a series of work-related back injuries; he
filed the action at issue in that opinion after
lifting his 12-pound baby at home. 740 So. 2d at
1082. The supreme court affirmed the trial court's
finding that the employee's injury after lifting the
baby was a compensable injury, because '[l]ifting a
12-pound baby is an activity that is "customary in
light of [the employee's] condition." Wilson [v.
Workers' Comp. Comm'n], 174 W. Va. [611] at 616, 328
S.E.2d [485] at 490 [(1984)].' 740 So. 2d at 1084."
Landstar Ranger, 828 So. 2d at 324. Moreover, "it is not the
situs of the second injury (i.e., either the place where the
accident occurred or the physical location of the injury) that
is controlling, but rather whether the subsequent injury was
a natural consequence of a prior compensable injury." Erwin
v. Harris, 474 So. 2d 1125, 1128 (Ala. Civ. App. 1985).
Sistrunk argued before the trial court that his leftshoulder
injury was compensable because, he said, it was a
direct result of his overcompensating with his left arm for
his right-shoulder injuries. The trial court's conclusion
that Sistrunk's left-shoulder injury was not compensable
appears to be based on a finding that Sistrunk's alleged
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overcompensation while working was insufficient to result in
a work-related injury. However, it matters not whether
Sistrunk's overcompensation with his left arm, allegedly
resulting in his left-shoulder injury, occurred while he was
actually working for Sikorsky Support. The applicable
standard is whether Sistrunk's left-shoulder injury was "the
direct and natural result" of his compensable right-shoulder
injuries, regardless of whether it was incurred at work or
elsewhere. Landstar Ranger, supra; and Erwin, supra.
Accordingly, because the trial court misapplied the applicable
standard, the judgment of the trial court is due to be
reversed insofar as it determined that the injury to
Sistrunk's left shoulder was not compensable.
We note also that the rotator-cuff injury to Sistrunk's
left shoulder appears to have resulted from gradual
deterioration or cumulative physical stress. Sistrunk
testified that he did not injure his left shoulder in an
accident and that he progressively began to experience pain in
his left shoulder after suffering his right-shoulder injuries.
In its judgment, the trial court did not specify whether it
found Sistrunk's left-shoulder injury to be a result of
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gradual deterioration or cumulative physical stress. Should
the trial court find Sistrunk's left-shoulder injury to be
either the result of gradual deterioration or the result of a
cumulative-physical-stress disorder, we note that such an
injury is "compensable only upon a finding of clear and
convincing proof that [that injury] arose out of and in the
course of the employee's employment." § 25-5-81(c), Ala. Code
1975. That is, if Sistrunk's left-shoulder injury is a
cumulative-physical-stress injury, he would have to establish
by clear and convincing evidence that it was the direct and
natural result of his compensable right-shoulder injuries. §
25-5-81(c); and Landstar Ranger, supra. See also Wal-Mart
Stores, Inc. v. Kennedy, 799 So. 2d 188, 196-97 (Ala. Civ.
App. 2001) (stating that a successive compensable injury that
is also a cumulative-physical-stress injury must be
established by clear and convincing evidence).
We reverse the judgment insofar as it determined that the
injury to Sistrunk's left shoulder was not compensable under
the Alabama Workers' Compensation Act. We remand the case for
the trial court to determine whether Sistrunk's injury to his
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left shoulder is compensable, applying the standards
articulated in this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Crawley, P.J., and Thompson, J., concur.
Pittman, J., concurs in the result, without writing.
Murdock, J., dissents, with writing.
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MURDOCK, Judge, dissenting.
I respectfully dissent. The record in this case does not
contain substantial evidence indicating that Sistrunk's leftshoulder
injury resulted from overcompensation by Sistrunk
outside of work for his right-shoulder injury. Indeed,
Sistrunk failed to identify to the trial court and fails to
identify to this court what nonwork activity might have
precipitated his left-shoulder injury. The only evidence of
any nonwork activity by Sistrunk is evidence indicating that
he lifted weights for exercise outside of work.