Liz Claiborne hired Patterson in February 1997. During her employment at Liz Claiborne, Patterson worked as a packer; her job duties included, among other things, folding boxes, packing them with clothes, and closing the boxes. In its final judgment, the trial court found:
"2. [Patterson] experienced an episode of back pain on April 7, 2000 while employed with [Liz Claiborne]. At that time, [Patterson] was closing a box and had reached across the box to hold the outer flap. She experienced back pain while holding the flap of the box."
At the close of Patterson's case, the trial court granted a motion by Liz Claiborne for a "directed verdict." Among other things, the court stated as follows in its final judgment:
"9. The Court has reviewed all available documentation concerning the treatment [of Patterson] by her physicians, records from her personnel file, and . . . the applications which she has submitted to both the unemployment compensation commission and Herff Jones. The Court hereby expressly finds that [Patterson] did not sustain an accident within the meaning of the Alabama Workers' Compensation Act on April 7, 2000. [Patterson] did not sustain an event or occurrence which *Page 190 would give rise to a claim against [Liz Claiborne] for any incident which may have occurred on April 7, 2000. Moreover, the Court finds that the episode of back pain was a recurrence as defined by United States Fidelity Guaranty Co. v. Stepp, 642 So.2d 712 (Ala.Civ.App. 1994). Whatever pain [Patterson] experienced on April 7, 2000, did not contribute to her overall disability and all medical treatment relating to her low back should relate back to the previous workers' compensation carrier, Hartford Insurance Company.
"10. At the close of [Patterson's] case, [Liz Claiborne] moved for a directed verdict. After careful consideration of the evidence presented at the close of [Patterson's] case, it is clear to the Court that the motion is due to be granted and that [Patterson] cannot sustain her burden [of proof] that an accident occurred on April 7, 2000, which arose out of and within the course of her employment. Moreover, any episode of pain experienced on that date relates back to the December 1998, injury for which medicals are still open."
(Emphasis added.)
Patterson contends that the trial court erred in finding that Patterson "cannot sustain her burden of proof that an accident occurred on April 7, 2000," and in finding that the injury of April 7, 2000, was a "recurrence" of a previous injury.4 Patterson also contends that the trial court erred by refusing to grant a short continuance for the purpose of allowing Dr. Kynard Adams, Patterson's family physician, to testify.
Before presenting any testimony to the trial court, the parties stipulated that the issue before the court was whether on April 7, 2000, Patterson had experienced a recurrence of an old injury, on the one hand, or an "aggravation" of an old injury or a new injury, on the other hand. Unlike a recurrence of an old injury, an aggravation of an old injury is compensable as a new injury under the Workers' Compensation Act ("the Act"), making the employer at the time of the aggravation liable for both medical bills and disability payments. United States Fid. Guar. Co. v. Stepp, 642 So.2d 712, 715 (Ala.Civ.App. 1994).
With respect to the trial court's finding that Patterson could not prove that an "accident" compensable under the Act occurred on April 7, 2000, and that the April *Page 191 7, 2000, injury was merely a recurrence of a preexisting injury, the following excerpts from the trial transcript are revealing:
"THE COURT: [T]he only thing I've got to decide . . . is whether this is a new injury or a reoccurrence from an old one. . . .
". . . .
"THE COURT: I want to hear the evidence that is going to tell me whether or not this is a new injury or a reoccurrence from this old one. I mean, that's what I want to hear. So anything that either side has got that's going to help this court make that decision, I want to hear it.
". . . .
"[PATTERSON]: On April 7th . . . I had made a box. . . . I had put the clothes inside the box, and I was trying to close the box, and I felt pain in the lower part of my back and down into my legs.
". . . .
"THE COURT: Let me ask you this, Ms. Patterson. When you felt the pain, were you just closing the box?
"[PATTERSON]: I — yes.
"THE COURT: I mean, were you pushing it?
"[PATTERSON]: No. I was trying to close the box because it was a big box and —
"THE COURT: Right. You had put all the clothes in there?
"[PATTERSON]: Right.
"THE COURT: And you were just trying to fold it up —
"[PATTERSON]: Right.
"THE COURT: — to close it, and that's when you felt the pain?
"[PATTERSON]: Yes.
"THE COURT: Okay. Thank you.
". . . .
"THE COURT: [Counsel for Patterson], let me stop y'all. I mean, I just am interested to — I mean, she didn't do anything to get a new injury. I mean, I understand she had pain from closing the box, but, obviously, it's because she already had back problems. I mean, she didn't do anything. I mean, if she had been pushing the box or something, I could see it. But, I mean, I have nothing right now that she even did anything to constitute a new injury. I mean, how are you going to prove it was a new injury?
"[COUNSEL FOR PATTERSON]: Judge, she was loading a box. She was pushing —
"THE COURT: All she — she wasn't pushing anything. I asked her. She said I was putting the clothes in it and I was folding the box. There's nothing here to even constitute having a new injury.
"[COUNSEL FOR PATTERSON]: She had a sharp, severe pain.
"THE COURT: Which I understand, but that means it goes back to the old injury. I mean, how are you going to prove that this is a new injury?"[COUNSEL FOR PATTERSON]: She's got a repetitive motion job that requires moving one place to the other, loading boxes, bending over to these boxes, going back to another place, bending over, loading a box.
"THE COURT: But, I mean, maybe I've missed something, but she testified all I was doing was folding the box. Did I miss something?
"[COUNSEL FOR PATTERSON]: She was putting clothes in a box. She was —
". . . .
"THE COURT: . . . All she was doing was folding the box, which I understand *Page 192 she might have pain, but there isn't any action here to constitute a new injury."[COUNSEL FOR LIZ CLAIBORNE]: Judge, the similar case on this point —
"PATTERSON: I was closing the box.
"[COUNSEL FOR LIZ CLAIBORNE]: — is USFG versus [Stepp], and it addresses this very situation where there's no real event —
"THE COURT: Right.
"[COUNSEL FOR LIZ CLAIBORNE]: — that causes the pain.
"THE COURT: I don't have any event here.
"[COUNSEL FOR LIZ CLAIBORNE]: That's right. A new event. And that's why they say, Judge, in [Stepp] it goes back to the old injury. It's — there's a little recurrence, there's a little flare-up of pain, but because there's no real major accident, event, it's just not the responsibility of the current carrier. It goes back to the old injury which she stated in those — both of those statements, Mrs. Patterson indicated in her own handwriting it relates back to 1998."THE COURT: I mean, what I'm saying is I understand she had sharp pain, and I appreciate that. I think Ms. Patterson did. But there's no event here —
"[COUNSEL FOR LIZ CLAIBORNE]: That's right.
"THE COURT: — to constitute an injury. That's why I asked her, Ms. Patterson, were you pushing the box? No. She was just folding the box. I mean, come on, y'all.
". . . .
"THE COURT: I mean, I'm sorry, y'all. But there's no action to constitute a new injury unless someone has got something they're going to prove to me.
". . . .
"THE COURT: And what I'm saying is there's no event here to constitute a new injury.
"[COUNSEL FOR LIZ CLAIBORNE]: That's right.
"THE COURT: If she'd told me I was pushing the box, Judge, if she told me something like that, I would say yeah. But she said I was just folding the box.
"[PATTERSON]: I said closing the box.
"THE COURT: Which I agree with Ms. Patterson. I mean, I think she probably did have pain. But it's going to relate back to the old injury. There's no occurrence of new injury here."[COUNSEL FOR LIZ CLAIBORNE]: I would also submit, Your Honor, that if it is a repetitive situation like [Patterson] suggests, then the new burden of proof would apply that she's got to prove by clear and convincing evidence, which certainly . . . it's not met here.
". . . .
"THE COURT: . . . I can tell you, I mean, folding a box doesn't constitute a new injury. Now, I'm just —"[COUNSEL FOR PATTERSON]: I was — I was in my house one day, Your Honor, and I leaned over to pick up a piece of lace which weighed about two pounds, and when I did, I herniated a disc in my lumbar spine, my L5 disc in my spine.
"THE COURT: Well, I mean, I'm going to listen to the —
"[COUNSEL FOR PATTERSON]: And I was out of — I was out of commission for quite some time with this —*Page 193
"THE COURT: I'm going to listen to the doctors, but I'm just telling y'all right now — I mean, I'm just asking y'all, because I just — I tell lawyers what I think is going on because I don't like to waste people's time. What I've heard so far — I mean, that's why I'm asking [counsel for Patterson]. Maybe you're going to have other evidence to show me that this is a new injury, which I am going to be happy to hear. But I'm just saying based on what Ms. Patterson said, we don't have a new injury. But, I mean, if we're going to have something else that I need to hear, then I'm going to be happy to hear it. But I'm just telling you what I've heard right now, there's no event that constitutes a new injury."I think you did have pain, Ms. Patterson, and I appreciate that. But I'm saying it goes back to the old injury. There's no event for a new one."
(Emphasis added.)
Patterson attempted at trial to establish that she experienced a new injury (a disc herniation) or a worsening of a prior injury as a result of and while performing a task required by her employment. Nothing in the evidence presented at trial precluded such a possibility. However, the trial court refused to entertain such a notion. Instead, the trial court clearly focused on the method of injury, in essence presuming that no injury could occur without some unusual strain or exertion or some sudden or violent trauma. Such a presumption finds no support in any of the evidence presented, including the medical evidence. Moreover, it finds no support in the law. Rather, consistent with Patterson's position, the law in Alabama is that if an injury arises out of and in the course of the performance of a job, then the injury is an "accident" within the meaning of the Act.
That the trial court had a different, and an incorrect, understanding of the meaning of the term "accident" is not something I "presume," but a conclusion I am forced to reach by the unequivocal and emphatic assertions repeatedly made by the trial court, as quoted above. This incorrect meaning of the term was the basis for the trial court's written finding that Patterson did not sustain an "accident" within the meaning of the Act:
"The court hereby expressly finds that [Patterson] did not sustain an accident within the meaning of the Alabama Workers' Compensation Act on April 7, 2000. [Patterson] did not sustain an event or occurrence which would give rise to a claim against [Liz Claiborne] for any incident which may have occurred on April 7, 2000."
Liz Claiborne cited the trial court to United States Fidelity Guaranty Co. v. Stepp, 642 So.2d 712, as a case that, it contended, addresses "[the] situation where there's no real event." Liz Claiborne argued that Stepp is a case where "there's no real event . . . that causes the pain" and "that's why they say, Judge, in [Stepp] it goes back to the old injury." It is clear from a review of the trial transcript and the trial court's judgment that the trial court accepted Liz Claiborne's argument; because the court found that there was no "event" or "occurrence" on April 7, 2000, it also found that the pain experienced by Patterson on that day necessarily resulted from a mere recurrence of an old injury and that there was no compensable "accident" on that day.
As Patterson correctly argues, however, the appropriate standard for determining whether there has been an "accident" for purposes of the Act is not whether there has been "an event," but whether the job caused an "injury." In Ex parte Harris, *Page 194 590 So.2d 285 (Ala. 1991), the Alabama Supreme Court stated:
"An `accident' is defined by § 25-5-1(8)[, Ala. Code 1975,] as `an unexpected or unforeseen event, happening suddenly and violently, with or without human fault, and producing at the time injury to the physical structure of the body or damage to an artificial member of the body by accidental means.' This Court has long concluded that if the job caused the injury then the injury was an `accident' within the intent of the Act. Pow v. Southern Construction Co., 235 Ala. 580, 180 So. 288 (1938), Kane v. South Central Bell Telephone Co., 368 So.2d 3 (Ala. 1979). In Kane, the Court . . . reiterat[ed] the point that '[t]he requirement that there must be shown a violent and unusual event which causes the injury [has been] replaced by the principle that there was an accident if the result was unexpected and unforeseen and it was caused by the job.' Kane, 368 So.2d at 5 (citations omitted). Therefore, an employee is not required, under the Act, to prove the existence of some violent and unusual event that resulted in his or her injury — if the job caused the injury, then the injury is an accident within the intent of the Act.". . . Gentry [v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937),] was one of several cases that held that an accident related to the event causing the injury, not the result, and that that event must take place suddenly and violently. See Kane, id., at 4, quoting City of Tuscaloosa v. Howard, 55 Ala. App. 701, 318 So.2d 729 (1975). As noted earlier, such a definition of `accident' is no longer valid. Kane, id. at 5. The term `accident' is not a characterization of the method of injury, but the result thereof."
590 So.2d at 286-87 (first emphasis added). Thus, although a normal occupational stimulus that causes an injury may not be "accidental" in a colloquial sense, an unusual physical reaction to that stimulus may nonetheless satisfy the statutory requirement of an unexpected and unforeseen event. As this court held in City of Tuscaloosa v. Howard,55 Ala. App. 701, 318 So.2d 729 (Ala.Civ.App. 1975), it is not necessary that an injured employee prove "some unusual strain or exertion not ordinary to the job." 55 Ala. App. at 705, 318 So.2d at 732. SeeConsolidated Coal Co. v. Dill, 248 Ala. 5, 26 So.2d 88 (1946); Pow v.Southern Construction Co., 235 Ala. 580, 180 So. 288 (1938) (holding that injuries covered by the Act are not limited to external traumatic injuries).
In a case similar in many respects to the present case, Alabama TextileProducts Corp. v. Grantham, 263 Ala. 179, 82 So.2d 204 (1955), a sewing-machine operator had herniated a disc by simply reaching into a bin for fabric. The trial court found the employee to be entitled to compensation, although she had performed the same maneuver every working day for 23 years without previous incident. This court stated:
"There was no finding by the trial court that the injury was caused by a blow, slip, fall or that it resulted from any unusual strain or exertion. But such findings are not necessary to support the conclusion that an injury of the kind which this plaintiff sustained was caused `by an accident' within the meaning of our workmen's compensation law when suffered in the manner outlined above."Alabama Textile Prods. Corp., 263 Ala. at 184, 82 So.2d at 208.
In another case involving a back injury, this court stated in DunlopTire Rubber *Page 195 Co. v. Pettus, 623 So.2d 313 (Ala.Civ.App. 1993):
"[F]or the purpose of workers' compensation, it is not necessary for [the employee] to show that her . . . injury arose from a sudden, traumatic event. If an employee's job causes her injury, the injury is an `accident.'"
623 So.2d at 315 (citing Ex parte Harris, 590 So.2d 285). See alsoRobinson Foundry, Inc. v. Tinsley, 510 So.2d 825, 827 (Ala.Civ.App. 1987) ("[e]ven if there is an existing infirmity or latent disease, our courts have said that an aggravation of such infirmity by an accident occurring on the job is compensable," at least where such previous injury or infirmity has not demonstrated itself as disabling so as to prevent the employee from performing his job in a normal manner).
Based on the foregoing, I conclude that the trial court's refusal to consider that Patterson had suffered an "accident" was erroneous. No "event" other than that which occurred in the present case was necessary for there to have been an "accident" within the meaning of the Act.
Concomitantly, I conclude that that portion of the trial court's judgment finding that the incident of back pain experienced by Patterson on April 7, 2000, was merely a "recurrence" of a previous injury is due to be reversed and the cause remanded for a new trial as to this issue.
Patterson had performed her job as a packer without any problems related to her back for over a year before the April 7, 2000, incident. Dr. Kirven Ulmer, the employer-designated physician who first treated Patterson following the April 7, 2000, accident, arranged for Patterson to have an MRI. Dr. E.P. Vinings, a radiologist, reviewed the results of that MRI and sent a letter to Dr. Ulmer, stating, in pertinent part:
"At L2-L3 is a disc herniation slightly to the left of midline. . . ."At L4-L5 and L5-S1 is desiccation . . . suspicious for tears of the annulus.
". . . .
"IMPRESSION:
"1. L2-L3 disc herniation.
"2. Tears of the annulus at L4-L5 and L5-S1."
Dr. Donovan Kendrick, a neurosurgeon, also examined Patterson and reviewed the MRI. Dr. Kendrick sent a letter to Dr. Ulmer dated June 15, 2000, stating, in pertinent part:
"I saw . . . Patterson in the office today. As you know this 29-year-old packer for . . . Liz Claiborne . . . has been having pain since December of 1998. . . . She had an MRI scan on 5/31 that shows a small midline disc bulge at L2-3 as well as degenerative changes of the disc at L4-5 and L5-S1 without frank herniation.
". . . .
"My IMPRESSION is she does have degenerative disc disease which would be consistent with her history of back pain. Unfortunately there is no surgical therapy which would help her."
Despite this evidence, and the sudden onset of back pain that occurred on April 7, 2000, the court found that this episode of pain was a "recurrence of a previous injury." Based on the record and the trial court's judgment, however, it is clear that the trial court's finding as to a recurrence was merely a function of its erroneous view that because there was no "event" there could be no accident.
In addition, the trial court appears to have incorrectly concluded that Dr. Kendrick determined "that [Patterson] did not have a herniated disc." Dr. Kendrick wrote that Patterson's MRI scan in May 2000 showed "a small midline disc bulge at *Page 196 L2-3," a finding consistent with Dr. Vinings interpretation of the MRI. (Indeed, Dr. Kendrick's letter went on to juxtapose his findings with regard to Patterson's condition at the L4-L5 and L5-S1 areas of her spine by stating that she had "degenerative changes of the disc at L4-5 and L5-S1 without frank herniation.")
Rather than focusing on whether there was an "event" or "occurrence" on April 7, 2000, the trial court should have considered the evidence before it in light of the following standard:
"A court finds a recurrence when `the second [injury] does not contribute even slightly to the causation of the [disability].' 4 A. Larson, The Law of Workmen's Compensation, § 95.23 at 17-142 (1989). '[T]his group also includes the kind of case in which a worker has suffered a back strain, followed by a period of work with continuing symptoms indicating that the original condition persists, and culminating in a second period of disability precipitated by some lift or exertion.' 4 A. Larson, § 95.23 at 17-152. A court finds an `aggravation of an injury' when the `second [injury] contributed independently to the final disability.' 4 A. Larson, § 95.22 at 17-141."Stepp, 642 So.2d at 715. See also Ex parte Pike County Comm'n,740 So.2d 1080 (Ala. 1999).
Similarly, it is clear that the trial court's decision not to grant a continuance to allow Dr. Adams to testify was informed by its conclusion that there was no "event" and therefore no "accident" on April 7, 2000, upon which Patterson could base a claim under the Act.5 A grant or refusal of a continuance rests within the discretion of the trial court and is not subject to revision except where an obvious and palpable abuse of discretion is shown. Ex parte Driver, 258 Ala. 233, 62 So.2d 241 (1952). In this case, however, the ground upon which the trial court refused to allow a continuance for Dr. Adams to appear and testify was essentially that Dr. Adams's testimony would not be relevant or material in light of the trial court's other findings. For the reasons discussed, that ground is invalid. The trial court's failure to grant a continuance for consideration of Dr. Adams's testimony therefore bolsters my opinion that this cause should be remanded for a new trial as to the issue of whether the incident of April 7, 2000, was, in fact, a "recurrence" of an old injury or, instead, was an aggravation of an old injury or a new injury.6
I also note that in paragraph 8 of its judgment the trial court made a finding that Patterson was not entirely credible in her testimony. It is clear from a review of paragraph 8 and the remainder of the trial court's judgment that this credibility finding was not directed to the issue of what occurred, or what Patterson experienced, on April 7, 2000 — i.e., whether there was an "accident" on that day. To the contrary, the trial court stated during the trial that "I agree with Ms. Patterson" with respect to what occurred on April 7, 2000, and expressly found in its judgment that Patterson did experience an episode of back pain on April 7, 2000, while employed with Liz Claiborne and that this episode *Page 197 occurred at a time when Patterson was reaching to close a box. Rather, the trial court's comment in paragraph 8 of its judgment was focused on Patterson's testimony regarding the degree of disability, if any, resulting from the April 7, 2000, accident. Paragraph 8 of the trial court's judgment, read in its entirety, indicates as much:
"8. On cross-examination, [Patterson] admitted that the application submitted to both unemployment compensation and Herff Jones were contradictory to her testimony in court concerning her inability to work. The Court has heard the testimony of [Patterson] and finds that she has been untruthful in her testimony in stating that she cannot perform any work due to severe pain. The Court has reviewed all of the evidence and finds that [Patterson] is not credible or truthful in her testimony."
Finally, I note that the trial court's finding in the above-quoted portion of its judgment — that Patterson is not credible in her statement that "she cannot perform any work" because of her pain — is not the same as a finding that Patterson suffers from no degree of disability whatsoever. I would hold, therefore, that if the trial court determines in a new trial that Patterson suffered a new injury or aggravated a preexisting injury, it must then determine whether Patterson is disabled to some degree and, if so, to what degree.
The trial court found that Patterson experienced an episode of pain on April 7, 2000, as a result of her employment. No other "event" was necessary to give rise to an "accident" within the meaning of the Act, and the trial court erred in finding otherwise. Therefore, I am forced to conclude that the trial court should conduct a new trial in which it would apply the correct meaning of the term "accident" to the evidence presented in order to determine whether Patterson suffered a new injury or an aggravation of a preexisting injury, or merely the recurrence of a preexisting injury. If the trial court were to find that Patterson suffered a new injury or an aggravation of a preexisting injury, it would then be required to decide the degree, if any, to which Patterson is disabled within the meaning of the Act as a result of that injury.
I therefore respectfully dissent.
YATES, P.J., concurs.