
    Shirley KOVALCHICK v. SOUTH BALDWIN HOSPITAL.
    2950887.
    Court of Civil Appeals of Alabama.
    May 16, 1997.
    Judgment @=>181(21)
    Genuine issue of material fact precluded summary judgment on whether workers’ compensation claimant proved causal connection between her heart attack and her employment. Rules Civ.Proc., Rule 56(e).
    Kelly A McGriff of Brackin & McGriff, P.C., Foley, for appellant.
    
      Sandy G. Robinson of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Mobile, for appel-lee.
   MONROE, Judge.

Shirley Kovalehick appeals from a summary judgment entered in favor of her employer, South Baldwin Hospital. Kovalehick had sued South Baldwin Hospital claiming she was entitled to workers’ compensation benefits for a heart attack she had while at work.

A motion for summary judgment may be granted only when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(e), Ala.R.Civ.P.; Crowne Investments, Inc. v. Bryant, 638 So.2d 873 (Ala.1994). The burden is on the moving party to show that there is no material fact in dispute; the evidence is to be viewed in the light most favorable to the nonmovant, and all reasonable inferences are to be drawn in that party’s favor. Id.

Rule 56 is read in conjunction with the “substantial evidence rule,” § 12-21-12, Ala. Code 1975. See Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). To defeat a defendant’s properly supported motion for summary judgment, the plaintiff must present 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.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

The record shows the following: Koval-chiek was a registered nurse who had worked for 18 years in the intensive care unit of South Baldwin Hospital. She had been working in the hospital’s emergency room for several months before to her heart attack. In the fall of 1993, Kovalehick worked what is referred to as the “32-40 shift,” meaning that she would work a 16-hour shift, have 8 hours off, and then work another 16-hour shift. Workweeks of the employees working the “32-40 shift” were composed of the two 16-hour periods, but they were paid as if they had worked a full 40-hour workweek.

On the morning of October 31, 1993, as Kovalehick was beginning her second 16-hour shift in the emergency room after having had only 8 hours off, she suffered a heart attack. Kovalehick contends that the heart attack was brought on by the great stress she had been under as an ICU nurse and from her work in the emergency room.

Before her heart attack, Kovalehick had been diagnosed with a heart condition known as premature ventricular contractions. She also had been diagnosed with hypertension.

“To establish causation in a workers’ compensation case where the injury is nonacci-dental, meaning that the injury was not caused by a sudden and unexpected external event, a claimant must satisfy a two-part causation test by producing substantial evidence establishing both (a) legal causation and (b) medical causation.” Ex parte Trinity Industries, Inc., 680 So.2d 262, 269 (Ala.1996)

To establish legal causation, a plaintiff must show that during the employment, he or she was “exposed to ‘danger or risk materially in excess’ of that danger to which all persons are ordinarily exposed in their everyday lives.” Id. at 266 (quoting City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729, 732 (Civ.1975)).

The Alabama Supreme Court has elaborated on the establishment of legal causation as follows:

“A claimant does not have to show any ‘unusual strain or overexertion’ in order to satisfy the first prong of the Howard standard. Rather, to establish ‘legal causation,’ one seeking redress under the Workers’ Compensation Act for ‘nonaeeidental’ injuries need only establish that the performance of his or her duties as an employee exposed him or her to a danger or risk materially in excess of that to which people are normally exposed in their everyday lives.”

Ex parte Trinity Industries, Inc., supra at 267.

In Trinity Industries, the court explained the claimant’s burden of establishing medical causation:

“[A] claimant ... must produce substantial evidence tending to show that the exposure to risk or danger proven in step one of the Howard test Vas in fact [a] contributing cause of the injury’ for which benefits are sought. Howard, 318 So.2d at 732. Whether the claimant has satisfied this test ... must be determined on a case-by-case basis.’ Ex parte Price, 555 So.2d 1060, 1062 (Ala.1989). We further stated in Price that a claimant need not always produce medical expert testimony as to the issue of medical causation in order to carry his burden of proof. Id. In determining whether substantial evidence was produced at trial as to medical causation, we must look to see whether evidence was produced at trial of such weight and quality that fair-minded persons in the exercise of impartial judgment could reasonably infer that the risk or danger proven to have existed was in fact a contributing cause of the injury.”

Id. at 269.

The trial court did not state the grounds on which it entered the summary judgment in favor of South Baldwin Hospital. However, in its motion for a summary judgment, South Baldwin Hospital had argued that because Kovalchick was not straining or exerting herself at the time she had the heart attack she could not establish the causation element of her workers’ compensation claim.

As set out above, the law is clear that Kovalchick does not have to show any “unusual strain or overexertion” to establish legal causation. Instead, she has only to show that in performing her duties as an emergency room nurse she was exposed to a danger or risk materially in excess of that to which people are normally exposed in their everyday lives. To prove medical causation, she must show that that risk or danger was in fact a contributing cause of the injury.

We must keep in mind that this is an appeal from a summary judgment and not an appeal from a judgment entered after a trial of the case. To defeat the defendant’s properly supported summary judgment motion, Kovalchick needed only to present evidence creating a genuine issue of material fact.

Kovalchick presented evidence that she worked as an emergency room nurse and that her weekly schedule required her to work two 16-hours shifts with only an 8-hour break in between. As a nurse in an emergency room, Kovalchick is required to make decisions that are literally a matter of life and death. A person could reasonably infer that the stress of such a job, coupled with an intense work schedule, exposed Kovalchick to more stress than the average person is exposed to in his or her everyday life and that that stress contributed to cause her heart attack.

We are not making a determination as to whether the stress of Kovalchick’s job and work schedule did in fact expose her to a risk materially in excess to that to which people are ordinarily exposed in their everyday lives; we only determine that she presented substantial evidence to create a genuine issue of material fact as to this claim. The finder of fact must determine the extent of the risk and danger to which Kovalchick was exposed after all of the evidence is presented in this ease. To draw the conclusion — as the dissent does — that her job and work schedule did not expose Kovalchick to more danger or risk, is premature at this point and it is not a proper determination to make when deciding whether to grant a summary judgment.

We also note that the dissent seems to argue that because Kovalchick chose to work the “32-40 shift” and was paid for a 40-hour work week, that somehow has a bearing on her ability to show legal causation. Neither factor is a proper consideration in determining whether her duties exposed her to more risk or danger than the average person. Furthermore, the dissent finds that Koval-ehick failed to prove medical causation. Once again, we note that the issue before this court is whether a summary judgment was properly entered in this case. At this stage of the proceeding, the plaintiff is not required to prove anything; she merely must establish a genuine issue of material fact.

In his dissenting opinion, Judge Thompson has set himself up as the trier of the facts of this case. Not only is that outside the province of this court, but in determining whether to enter a summary judgment, the trial court also is precluded from making findings of fact. Furthermore, in arguing the facts regarding Kovalehick’s previous heart-related problems, the dissent strengthens Koval-chiek’s position that the stress of her job and work schedule at least contributed to her heart attack.

Appellate courts must keep in mind that in reviewing summary judgments, we are to view the evidence in the light most favorable to the nonmovant, and we must draw all reasonable inferences in his favor. Crowne Investments, Inc. v. Bryant, 638 So.2d 873 (Ala.1994). Our task, as well as that of the trial court, is merely to determine whether the nonmoving party has presented sufficient evidence to create a genuine issue of material fact. At the summary judgment stage, we are not to weigh the nonmoving party’s evidence against that of the moving party to determine whose evidence we believe, or whether the moving party has a stronger case, or whether either party has proved his case — we only determine whether a genuine issue of material fact exists. If there is a genuine issue of material fact, then the ease proceeds, but not until the trial of the case is the plaintiff required to present evidence sufficient evidence to prove his case. And not until the trial is the trial court to make specific findings of fact based on all of the evidence.

We hold that Kovalchick presented sufficient evidence to create a genuine issue whether her job was stressful enough to cause her heart attack. That issue involves a question of fact and is not a proper subject for a summary judgment. The trial court erred in entering the summary judgment in favor of South Baldwin Hospital. That judgment is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

ROBERTSON, P.J., and YATES, J., concur.

CRAWLEY and THOMPSON, JJ., dissent.

THOMPSON, Judge,

dissenting.

I believe the trial court properly entered the summary judgment in favor of South Baldwin Hospital. Summary judgment is appropriate when the movant has shown that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Berner v. Caldwell, 543 So.2d 686, 688 (Ala.1989); Woodham v. Nationwide Life Ins. Co., 349 So.2d 1110, 1111 (Ala.1977).

The majority finds that Kovalchick presented sufficient evidence to create a genuine issue of fact as to whether her job was so stressful as to cause her heart attack. Kovalchick was required to present substantial evidence creating a genuine issue of material fact in order to defeat South Baldwin Hospital’s motion for summary judgment. See Danford v. Arnold, 582 So.2d 545, 546 (Ala.1991); Ala.Code 1975, § 12-21-12. “Substantial evidence is 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.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). “Substantial evidence has been defined as such ‘relevant evidence as a reasonable mind might accept as adequate to support a conclusion,’ and it must be ‘more than a scintilla and must do more than create a suspicion of the existence of a fact to be established.’ ” Alabama Alcoholic Beverage Control Bd. v. Tyson, 500 So.2d 1124, 1125 (Ala.Civ.App.1986). “Evidence which affords nothing more than speculation, conjecture or guess is wholly insufficient to warrant the submission of a case to the jury.” Williams v. Palmer, 277 Ala. 188, 193, 168 So.2d 220, 224 (1964).

Kovalchick failed to produce substantial evidence to create a genuine issue of material fact as to whether her job exposed her to a danger or risk materially in excess of the danger which persons are ordinarily exposed to in their everyday lives. Although she worked long hours, she had chosen to work the 32/40 hour shift because it allowed her 5 days off between each work week. In addition, when she worked the 32/40 hour shift, she received pay and benefits for a 40-hour work week, even though she worked only 32 hours. Kovalchick testified that her nursing duties in the intensive care unit and the emergency room had been stressful, but she did not create a genuine issue of material fact as to whether her nursing duties in these areas exposed her to a higher risk of a heart attack than the average person.

The Alabama Supreme Court has acknowledged that “[d]etermining whether a causal relationship has been established between the performance of the claimant’s duties as an employee and the complained-of injury is especially difficult and troublesome when the complained-of injury was not produced by some sudden and traumatic external event.” Ex parte Trinity Industries, Inc., 680 So.2d 262, 266 (Ala.1996). Clearly, not “every injury that could conceivably be argued to be linked to a person’s employment” is compen-sable under the Act. Id. This court has adopted a standard a claimant must meet to establish a causal connection between the injury and the employment. See City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (Ala.Civ.App.1975). To establish causation as to a nonaecidental injury, a worker’s compensation claimant must satisfy a two-pronged test, presenting substantial evidence establishing both legal causation and medical causation. Ex parte Trinity Industries, 680 So.2d at 266. Legal causation is shown if the injured employee can show “ ‘that the performance of the duties for which he [or she] is employed ... expose[d] [him or her] to a danger or risk materially in excess of that danger to which people not so employed are exposed [ordinarily in their everyday lives].’ ” Ex parte Trinity, at 266 (quoting City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729, 732 (Civ.1975)). In order to prove medical causation, a claimant must produce substantial evidence that the exposure to risk or danger was a contributing cause of the injury for which benefits are being sought. Id. at 267 (citing to Howard, 318 So.2d at 732).

The Court explained the rationale behind the Howard legal causation standard, stating:

“The Howard ‘legal causation’ standard was intended to act, and does act, to prevent employers from being unfairly saddled with the cost of being made the absolute insurer of an employee’s health. Without a ‘legal causation’ standard, a person who becomes ill or dies because of a natural cause, such as an aneurysm or slipping into a diabetic coma, unrelated to any job-related risk, would be able to recover under our workers’ compensation statute merely because he or she was lucky enough to have the disabling event resulting from that natural cause occur at the place of employment or just after the employee has left the place of employment. Such a result was not intended by the legislature when it enacted our workers’ compensation law.”

Ex parte Trinity, at 267.

Kovalchick did not present substantial evidence creating a genuine issue of material fact regarding whether the stress she was exposed to at work was a contributing cause of her heart attack. She produced no evidence at all, other than her own testimony, to indicate that her heart attack was related to her employment.

In appropriate circumstances, medical causation may be established from evidence other than doctor’s testimony or affidavit. However, medical causation can generally be proven without medical testimony only when a traumatic external event, such as a back injury, occurs suddenly as a result of an obvious accident or strain that occurred on the job. See generally, Ex parte Price, 555 So.2d 1060 (Ala.1989). The absence of outside medical testimony in this case is remarkable. There was no testimony from anyone qualified as a medical expert as to the cause of the heart attack. Overtime work and long hours alone do not automatically meet the medical causation test. Morgan v. Reynolds Metals Co., 655 So.2d 1056 (Ala.Civ.App.1995); Strickland v. National Gypsum Co., 348 So.2d 497 (Ala.CivApp.1977).

Kovalchick was a woman with an eight-year history of episodes of irregular heart rhythm called premature ventricular contractions. She testified that these episodes occurred randomly, at varying times during the day and night. The major symptom she experienced with these episodes was severe chest pain. She also suffered from hypertension.

Clearly, at the summary judgment stage, Kovalchick is not compelled to prove all the elements of her claim in order to defeat her employer’s properly supported motion for summary judgment. However, to create a genuine issue of a material fact, she must present substantial evidence of a causal connection between her heart attack and her employment at South Baldwin Hospital. In my opinion, Kovalchick did not produce such substantial evidence as would defeat South Baldwin Hospital’s motion for summary judgment. For the foregoing reasons, I respectfully dissent.

CRAWLEY, J., concurs.  