CLEAR AND CONVINCING EVIDENCE FOUND THAT WELDING JOB EITHER CAUSED OR CONTRIBUTED TO CHOROIDAL NEOVASCULARIZATION DESPITE LACK OF SUPPORTING EXPERT TESTIMONY
DeShazo Crane Company, LLC v. James L. Harris:
On September 18, 2009, the Alabama Court of Civil Appeals released this opinion wherein it affirmed the trial court’s finding of permanent and total disability. At trial, the employee presented evidence that he worked for the employer (the second time) from 2002 until 2004. He testified that he began to experience eye problems in late 2002. Both the employee and his lover testified that they could recall certain times when the employee would come home from work and his eyes felt like they were burning. On those occasions, the employee recalled accidental exposure to UV radiation while at work. The undisputed evidence was that he did not report the exposure and the employer had no record of the exposure.
A retina surgeon, Dr. Milton White, diagnosed the employee with choroidal neovascularization, also called choroidal neovascular membrane ("CNVM"). As explained by Dr. White, CNVM is a condition in which abnormal blood vessels grow in the choroid (a layer of tissue behind the retina). These blood vessels leak blood and clear fluid into the retina causing visions problems and eventual blindness. In this case, the employee was rendered legally blind and thus totally disabled.
Interestingly, the evidence revealed that there are many causes of CNVM. Although unprotected exposure to UV radiation while welding was noted to be a possible cause, the most common explanation provided by doctors for CNVM was "idiopathic" where the cause cannot be determined. At trial, Dr. White testified that the cause of the employee’s CNVM was idiopathic. In fact, he had previously submitted a written opinion to the insurer and employer that the employee’s CNVM was not job related. As Dr. White explained, to be able to diagnose welding as the cause, he would need to be able to find other scarring in the retina. In the employee’s case, no other scarring was found. In fact, but for the employee working as a welder, Dr. White said he would be 100% certain that the cause was idiopathic. Under cross examination, Dr. White conceded only that welding was still a "possible" cause.
At trial, it was the employee’s burden to prove by clear and convincing evidence both legal and medical causation. Therefore the employee had to prove legal causation by showing that the employee’s job exposed him to a materially greater risk of developing CNVM than people ordinarily encounter. The judge determined that this was proven by evidence that the welders wore protective hoods and used protective screens. The employee next had to prove medical causation by showing that said exposure was a contributing cause of the CNVM. The judge determined that the time line of events, the risks of the job, and the fact that Dr. White could not rule out welding as a cause, all taken together proved by clear and convincing evidence that the CNVM was job related.
In affirming the trial court’s ruling, the Court of Civil Appeals noted that they could not re-weigh the evidence. They could only make sure that the trial court was presented with evidence of such weight and quality that, using fair-minded and impartial judgment, the court reasonably could have reached a firm conviction as to causation.