The employer, Bruno's, Inc., d/b/a Food Fair, appeals from a judgment awarding workers' compensation benefits to Sandra Lee Lawson.
Lawson has been employed by Bruno's as a bookkeeper at one of its supermarkets since 1979. Her job responsibilities include keeping the books, collecting and depositing checks, supervising the cashiers, handling payments for beer and wine for the store, and filling in for cashiers. In 1994, Bruno's removed the stools from Lawson's work area, requiring her to stand eight or nine hours a day without a lunch break and often without a break at all. Lawson began experiencing back pain, which she believed was caused by standing continuously for eight or nine hours a day.
Lawson sought treatment for her back pain from a chiropractor, who had been treating Lawson intermittently since she injured her back in 1988 or 1989. Lawson was also treated by Dr. Erich Wouters, an orthopedic surgeon. After conducting tests and X-rays, which did not reveal any injuries, Dr. Wouters determined that she was suffering from chronic muscle strain in her back. Dr. Wouters could not say that the pain was caused by standing. Lawson was also seen
Based on this evidence and on Lawson's testimony, the trial court determined that Lawson's back injury was an occupational disease and that she had suffered a 17% permanent impairment to the body as a whole. She was awarded temporary total benefits for the nine weeks she missed from work because of her back pain. She was also awarded permanent partial benefits for the 17% impairment to her body as a whole. In addition, Bruno's was ordered to pay all past and future reasonable medical expenses incurred by Lawson for treatment of her back pain. Bruno's appeals.
Our review of legal issues decided by the trial court is without a presumption of correctness. § 25-5-81(e)(1), Ala.Code 1975. Regarding factual findings of the trial court, we will not reverse the trial court's finding as to a question of fact in a workers' compensation case when that finding is supported by substantial evidence, i.e., "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 Industries, Inc., 680 So.2d 262, 268 (Ala. 1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)); § 25-5-81(e)(2), Ala.Code 1975.
Bruno's raises several issues on appeal; we find one to be dispositive.
The trial court ruled that Lawson's back pain was an occupational disease. "Occupational disease" is defined as:
§ 25-5-110(1), Ala.Code 1975.
For a disease to be "occupational," it must be due to hazards that are "(1) in excess of those ordinarily incident to employment in general and (2) different in character from those found in the general run of occupations." Elmore County v. Hornsby, 533 So.2d 620, 622 (Ala.Civ.App.1988). This court has previously held that prolonged sitting in a patrol car as is required of a deputy sheriff does not fall under the definition of a hazard causing occupational disease. Id. This court has also held that thrombophlebitis was not an occupational disease, because it was not shown that the prolonged standing and sitting required by nurses were hazards in excess of those ordinarily incident to employment in general and peculiar to the nursing profession. Young v. City of Huntsville, 342 So.2d 918 (Ala.Civ.App.1976). In addition, we have held that the squatting or kneeling required of a bank employee is not a hazard peculiar to the normal working conditions of the banking profession. Smith v. Colonial Bank, 607 So.2d 1265 (Ala.Civ. App.1992).
There is no evidence that Lawson's condition resulted from a hazard that is peculiar to her profession or that the risk of having back pain is greater in her profession than in any other job that requires standing. We cannot say that standing is a hazard in excess of those hazards ordinarily incident to employment in general and that it is peculiar to Lawson's occupation. Thus, Lawson's back pain is not an "occupational disease" as that term is defined in § 25-5-110.
Therefore, we conclude that the trial court erred in finding that Lawson had suffered an occupational disease, compensable by the workers' compensation laws of Alabama. The judgment is reversed and the cause remanded for the trial court to enter a judgment in favor of Bruno's.
REVERSED AND REMANDED.
YATES and THOMPSON, JJ., concur.
CRAWLEY, J., concurs in the result.
ROBERTSON, P.J., dissents.
ROBERTSON, Presiding Judge, dissenting.
Because I would affirm the trial court's judgment, I respectfully dissent. In my opinion, the cases relied on by the majority do not support a reversal, but instead support an affirmance.
In Elmore County v. Hornsby, 533 So.2d 620 (Ala.Civ.App.1988), the employee suffered from "advanced arteriosclerotic peripheral vascular disease, more commonly known as hardening of the arteries." It was undisputed that this condition was not caused by his job as a deputy sheriff, and this court could not find any evidence in the record to conclude that merely sitting while driving an automobile fit under the requirements of an occupational disease. This court did not conclude that "sitting," under some other set of circumstances, would never fit under the requirements of an occupational disease.
In Young v. City of Huntsville, 342 So.2d 918 (Ala.Civ.App.1976), this court affirmed the judgment of the trial court concluding that there was legal evidence
This court, on application for rehearing, held in Smith v. Colonial Bank, 578 So.2d 1364, 1366 (Ala.Civ.App.1991) ("Smith I"), "that evidence
While there was some conflicting testimony in this case, there was clear and convincing evidence, some of it undisputed, to support the findings of the trial court. Certainly undisputed evidence of being required to stand continuously for eight to nine hours on a concrete floor without a break and without even a stool upon which to occasionally sit or rest is evidence that the job requirements "were in excess of those ordinarily incident to employment in general and difference in character from those found in the general run of occupations." Elmore County, 533 So.2d at 622.
The trial court's finding in this case is conclusive, Young, supra, and its judgment should be affirmed.