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ALABAMA COURT OF C I V I L APPEALS
OCTOBER TERM, 2008-2009
KGS Steel, Inc
Appeal from Jefferson Circuit Court, Bessemer Division
After Remand from the Alabama Supreme Court
The prior judgment of this court reversing the judgment
of the trial court as to its causation determination, a result
in which four judges of this court concurred, see KGS Steel,
Inc. V. Mclnish, [Ms. 2040526, June 30, 2006]
(Ala. Civ. App. 2006),
Ex parte Mclnish, [Ms. 1060600, September 5,
(Ala. 2008) .
The majority opinion of
that court remanded the cause to this court for our "further
consideration consistent with" Ex parte Mclnish,
So. 3d at
, whereas Justice Lyons, joined by Chief Justice Cobb,
dissented from that instruction, indicating that he would have
remanded "with instructions to
[this] court to affirm the
judgment of the trial court" based on the rationale set forth
in the dissenting opinion of former Presiding Judge Crawley in
KGS Steel (
So. 3d at
Under § 12-3-16, Ala. Code 1975, "[t]he decisions of the
Supreme Court shall govern the holdings and decisions of the
[C]ourt' referred to ... can only mean the 'decisions of the
maj ority' of the Supreme Court."
Willis v. Buchman, 30 Ala.
App. 33, 40, 199 So. 886, 892 (1940) (opinion after remand).
appropriate standard set out in Ex parte Mclnish to determine
whether it is sufficient to support the factual findings made
by the trial court regarding medical causation.
As set out in Ex parte Mclnish:
in the context of a
substantial-evidence standard of review required in
a proceeding like the one before us, a cumulativephysical -stress /gradual-deterioration
compensation case, the burden that an employee must
bear was accurately stated by then Judge Murdock in
his special concurrence [in KGS Steel]:
"'[T]he evidence necessary for appellate
affirmance of a judgment based on a factual
finding in the context of a case in which
decision by the trial court is clear and
convincing evidence is evidence that a
clearly and convincingly
[as clear and
convincing is defined by § 25-5-81 (c)]
establish the fact sought to be proved.'
So. 3d at
"To analogize the test set out above by Judge
Prettyman [in Curley v. United States, 160 F.2d 229,
232-33 (D.C. Cir. 1947),] for trial courts ruling on
motions for a summary judgment in civil cases to
which a clear-and-convincing-evidence standard of
proof applies, 'the judge must view the evidence
presented through the prism of the substantive
evidentiary burden'; thus, the appellate court must
also look through a prism to determine whether there
was substantial evidence before the trial court to
support a factual finding, based upon the trial
'produce in the mind [of the trial court] a firm
conviction as to each element of the claim and a
high probability as to the correctness of
conclusion.' § 25-5-81(c)[, Ala. Code 1975]."
Ex parte Mclnish,
So. 3d at
Based on the appropriate standard of appellate review,
and keeping in mind that we must consider the totality of the
evidence, not just the expert medical testimony. Ex parte
So. 3d at
, we conclude that the trial court
erred in finding medical causation.
In doing so, we adopt the
view espoused in the special opinion of then Judge Murdock in
KGS Steel that the circumstantial evidence, lay testimony, and
expert testimony in this case -- evidence and testimony that
was thoroughly and accurately summarized in the main opinion
in KGS Steel -- could not reasonably have produced in the mind
of the trial court a firm conviction that the duties of Donald
Mclnish's employment caused or contributed to the neck and
shoulder condition that ultimately disabled the employee from
concurring in the result).
The trial court's judgment is reversed in its entirety,
and the cause is remanded for the entry of a judgment or for
further proceedings consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Thompson, P.J., and Thomas, and Moore, JJ., concur
Bryan, J., concurs in the result, without writing.
Pittman, J., dissents, with writing.
PITTMAN, Judge, dissenting.
In my view, "further consideration" of whether the trial
court's judgment determining that Donald Mclnish was totally
and permanently disabled as a consequence of his neck and
foreclosed by the Alabama Supreme Court's judgment of reversal
in Ex parte Mclnish, [Ms. 1060600, September 5, 2008]
(Ala. 2008) . Had the Supreme Court been of the opinion
that this court's reversal of the trial court's judgment as to
causation in KGS Steel v. Mclnish,
[Ms. 2040256, June 30,
(Ala. Civ. App. 20060, was proper,
notwithstanding any misstatements of law contained in the main
opinion in KGS Steel, based upon the evidence appearing in the
evidence that was of course before the Supreme Court
following the transmission of the appellate record to the
Supreme Court upon its grant of Mclnish's certiorari petition
-- that court would have either affirmed the judgment of this
court on another rationale, such as that stated in then Judge
Murdock's special writing, or would have quashed the writ as
improvidently granted. I believe that "further consideration"
of the evidence may not properly admit the possibility that
this court acted correctly in reversing the trial court's
judgment as to the issue considered in KGS Steel -- namely,
Because I would affirm the trial court's judgment
as to its causation determination, I respectfully dissent.