2018 WL 6259259

NOT YET RELEASED FOR PUBLICATION.
Supreme Court of Alabama.
EX PARTE TYSON CHICKEN, INC., and Charles Gregory Craig
(In re: Lisa Burke Huffstutler
v.
Tyson Chicken, Inc., and Charles Gregory Craig)
1170820
|
November 30, 2018
Synopsis
Background: Motorist injured in a collision with a tractor-trailer brought action against driver, driver’s employer, and other fictitiously named defendants for wantonness, negligence, negligent and/or wanton supervision or training, and negligent and/or wanton hiring, retention, and entrustment. The Circuit Court, Marshall County, No. CV-18-900113, denied driver’s and driver’s employer’s motion for a change of venue to county in which collision occurred. Driver and employer petitioned for a writ of mandamus.

[Holding:] The Supreme Court, Sellers, J., held that trial court abused its discretion in denying defendants’ motion to change venue.

Petition granted; writ issued.

Shaw, J., dissented and filed opinion, which Wise, J., joined.

Bryan, J., dissented and filed opinion, which Main, J., joined.

West Headnotes (7)

[1]
Mandamus
Change of venue and transfer of causes

A petition for a writ of mandamus is the proper method for obtaining review of a denial of a motion for a change of venue in a civil action.
Cases that cite this headnote

[2]
Mandamus
Nature and scope of remedy in general

A writ of mandamus is appropriate when the petitioner can demonstrate (1) a clear legal right to the order sought, (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) the properly invoked jurisdiction of the court.
Cases that cite this headnote

[3]
Mandamus
Scope of inquiry and powers of court

When reviewing a mandamus petition challenging a ruling on a change-of-venue motion on the basis of forum non conveniens, an appellate court must determine whether the trial court exceeded its discretion in granting or denying the motion. Ala. Code § 6-3-21.1.
Cases that cite this headnote

[4]
Mandamus
Scope of inquiry and powers of court

Appellate review of a mandamus petition challenging a ruling on a change-of-venue motion on the basis of forum non conveniens is limited to only those facts that were before the trial court. Ala. Code § 6-3-21.1.
Cases that cite this headnote

[5]
Venue
Promotion of justice

Analysis under the interest-of-justice prong of the forum non conveniens statute does not involve a simple balancing test weighing each county’s connection to an action; instead, the interest-of-justice prong requires the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action. Ala. Code § 6-3-21.1.
Cases that cite this headnote

[6]
Venue
Particular torts
Venue
Order granting or refusing change

Trial court in injured motorist’s action for wantonness, negligence, and other claims against driver of tractor-trailer, along with driver’s employer, involved in collision with motorist abused its discretion in denying defendants’ motion to change action’s venue to county in which the collision occurred, despite argument that motorist and driver lived in county in which motorist filed action and that driver worked in employer’s facility in that county; evidence tended to indicate that the topography at the scene might have been a contributing factor such that it would be helpful for the jury to view the scene, or at least be familiar with the area, to fully appreciate the unique road conditions. Ala. Code § 6-3-21.1.
Cases that cite this headnote

[7]
Corporations and Business Organizations
Venue
Venue
In general;  joint or related causes of action
Venue
Domicile or residence for purpose of action

There is no need to burden a county, with a weak connection to a case, with an action that arose in another county simply because the individual defendant resides there and the corporate defendant does some business there. Ala. Code § 6-3-21.1.
Cases that cite this headnote

PETITION FOR WRIT OF MANDAMUS (Marshall Circuit Court, CV-18-900113)
Opinion

SELLERS, Justice.

*1 Tyson Chicken, Inc. (“Tyson”), and Charles Gregory Craig petition this Court for a writ of mandamus directing the Marshall Circuit Court (“the trial court”) to vacate its order denying Tyson and Craig’s motion for a change of venue and to enter an order transferring the underlying action to the Cullman Circuit Court. We grant the petition and issue the writ.

Facts and Procedural History
On November 29, 2017, a vehicle driven by Lisa Burke Huffstutler collided with a tractor-trailer driven by Craig, an employee of Tyson. The collision occurred at the intersection of County Road 747 and County Road 1609 in Cullman County. Emergency responders, including state troopers and medical personnel, investigated the accident, treated Huffstutler for her injuries at the scene, and then transported her to Cullman Regional Medical Center for further medical treatment.

On March 6, 2018, Huffstutler sued Tyson, Craig, and multiple fictitiously named defendants in the Marshall Circuit Court alleging wantonness, negligence, negligent and/or wanton supervision or training, and negligent and/or wanton hiring, retention, and entrustment. Tyson and Craig jointly moved for a change of venue to the Cullman Circuit Court under Alabama’s forum non conveniens statute, Ala. Code 1975, § 6-3-21.1. After the trial court denied that motion, Tyson and Craig filed this mandamus petition.1

Standard of Review
[1] [2] [3] [4]A petition for a writ of mandamus is the “proper method for obtaining review of a denial of a motion for a change of venue in a civil action.” Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala. 1998). “A writ of mandamus is appropriate when the petitioner can demonstrate ‘(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’ ” Ex parte Kane, 989 So.2d 509, 511 (Ala. 2008)(quoting Ex parte BOC Grp., Inc., 823 So. 2d 1270, 1272 (Ala. 2001) ). When reviewing a mandamus petition challenging a ruling on a change-of-venue motion on the basis of forum non conveniens, this Court must determine whether the trial court exceeded its discretion in granting or denying the motion. Ex parte Fuller, 955 So.2d 414, 415 (Ala. 2006). “Our review is limited to only those facts that were before the trial court.” Ex parte Kane, 989 So.2d at 511.

Discussion
Alabama’s forum non conveniens statute provides:
“With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.”
*2 § 6-3-21.1, Ala. Code 1975. Tyson and Craig concede that venue is proper in the Marshall Circuit Court; however, Tyson and Craig argue that the action should be transferred to the Cullman Circuit Court in the interest of justice and for the convenience of parties and witnesses.

[5]Our analysis under the interest-of-justice prong of the forum non conveniens statute does not involve a “simple balancing test weighing each county’s connection to an action.” Ex parte J & W Enters., LLC, 150 So.3d 190, 196 (Ala. 2014). Instead, “[t]he ‘interest of justice’ prong of § 6–3–21.1 requires ‘the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.’ ” Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 540 (Ala. 2008)(quoting Ex parte National Sec. Ins. Co., 727 So.2d at 789).

[6]“This Court has held that litigation should be handled in the forum where the injury occurred.” Ex parte Fuller, 955 So.2d at 416. The Court has also noted that a key factor to consider in its venue analysis is “the interest of the people of a county to have a case that arises in their county tried close to public view in their county.” Ex parte Smiths Water & Sewer Auth., 982 So.2d 484, 490 (Ala. 2007). The following factors are significant in evaluating the propriety of a transfer of the underlying action to Cullman County: (1) the accident occurred in Cullman County; (2) the accident was investigated in Cullman County; (3) Huffstutler was treated at the accident scene by employees of Cullman Emergency Medical Services, based in Cullman County; (4) Huffstutler was transported from the accident scene to Cullman Regional Medical Center to receive additional medical care and treatment; (5) Tyson maintains a facility in Cullman County where the truck involved in the accident is registered; and (6) Huffstutler is employed in Cullman County and owns a house there.

Tyson and Craig contend that the location-of-the-accident factor is especially noteworthy in this case because, they say, the terrain near the scene of the accident may have been a contributing factor.2 Tyson and Craig’s original motion for a change of venue included an affidavit from an expert in accident reconstruction who stated that, in his opinion, a viewing of the scene of the accident would aid the fact-finder in understanding the evidence presented in this case. Furthermore, Tyson and Craig claim that, in addition to much of the evidence surrounding the accident itself and the resulting injuries, all the documentary evidence pertaining to Craig’s employment with Tyson is located at Tyson’s facility in Cullman County.3 Cullman County then, in addition to being the site of the accident, is also the location of records that would be relevant to Huffstutler’s claims of negligent and/or wanton hiring, training, supervision, and retention.

*3 Huffstutler argues that Marshall County’s connection to the case is not so weak as to justify a transfer of the action to Cullman County. She points out that both she and Craig are residents of Marshall County and that Tyson operates a facility in Marshall County.4 Huffstutler also asserts that, because Craig works at Tyson’s facility in Marshall County, it is likely that Tyson employees from that facility will have to provide testimony relating to her claim of negligent and/or wanton training and supervision.

Huffstutler primarily relies on this Court’s opinion in Ex parte J & W Enterprises to support her claim that a transfer of the action to Cullman County is not warranted. That case also concerned a motorist who was injured in an automobile accident with an employee who was operating his employer’s tractor-trailer. The plaintiff in that case filed suit in Clarke County, where the defendant driver resided and the defendant employer maintained its principal place of business. The defendants filed a motion to transfer the action to Mobile County, where the accident occurred, but the trial court denied the motion. In ruling on the defendants’ subsequent petition for a writ of mandamus, this Court found that the fact that the accident occurred in Mobile County was not, alone, enough to warrant a change of venue. See Ex parte J & W Enters., 150 So.3d at 196–97 (noting that, “[a]lthough we assign ‘considerable weight’ to the location where the accident occurred, it is not, and should not be, the sole consideration for determining venue under the ‘interest of justice’ prong of § 6–3–21.1”).

In Ex parte J & W Enterprises, this Court noted the following regarding the tenuous connections of the action to the proposed transferee forum:
“The accident occurred in Mobile County, and the Mobile Police Department prepared an accident report, but there the connections to Mobile County cease. None of the parties lives in Mobile County. [The plaintiff] did not receive treatment for his injuries in Mobile County. [The defendants] have not identified any relevant documents that are located in Mobile County. No eyewitnesses are located in Mobile County, and the investigating police officer has testified that he is willing to travel to Clarke County. In light of the facts before us, Mobile County’s nexus to the action is purely fortuitous–the place on the interstate where the accident occurred.”
150 So.3d at 196 (footnote omitted). The facts of this case are much different.

Here, Huffstutler was treated for her injuries in Cullman County, both at the scene and later at a hospital in Cullman County. Tyson maintains a place of business in Cullman County, where the tractor-trailer involved in the accident is registered and where, Tyson claims, all the documentary evidence pertaining to Craig’s employment, training, and supervision is located. Moreover, Tyson has shown that the location of the accident is unique and relevant to the case. Thus, the connections to the county to which a transfer is being requested in the present case are much stronger than those in Ex parte J & W Enterprises.

*4 Although it appears that the Court in Ex parte J & W Enterprises was primarily concerned that the connections with the proposed transferee forum were not strong, the Court also noted that the connections to the plaintiff’s chosen forum, Clarke County, were not “markedly weak.” 150 So.3d at 197. The Court pointed out that both defendants were located there–-the defendant truck driver resided there and his employer had its principal place of business there. The Court also noted that documents relevant to the plaintiff’s claims of negligent entrustment, hiring, retention, and training were located at the defendant employer’s principal place of business in Clarke County. In this case, although Tyson maintains a facility in Marshall County, it is not Tyson’s principal place of business.5 Further, as noted above, Tyson asserted in its motion for a change of venue that all the requested documentary evidence relating to Craig’s employment and training is located at its Cullman County facility, not its Marshall County facility. Huffstutler has not disputed this assertion, although she speculates that it is likely that Tyson employees from its Marshall County facility will have to provide testimony relative to her negligent-training-and-supervision claim. The connections to the plaintiff’s chosen forum in the present case are weaker than those in Ex parte J & W Enterprises.

The gravamen of the complaint in this action is that Craig’s and Tyson’s negligence and/or wantonness resulted in a motor-vehicle accident in Cullman County; the evidence before us tends to indicate that the topography at the scene of the accident might have been a contributing factor such that it would be helpful for the jury to view the scene, or at least be familiar with the area, to fully appreciate the unique road conditions. The citizens of Cullman County, then, would appear to have much more of an interest in the outcome of this case than those in Marshall County. And, in looking at the elements Huffstutler must prove to prevail, a substantial amount of the evidence has accumulated in Cullman County. Although Marshall County is not devoid of any connection to the parties, the citizens of Marshall County would have very little interest in the outcome. See Ex parte J & W Enters., 150 So.3d at 194 (“ ‘ “[I]n analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the ‘nexus’ or ‘connection’ between the plaintiff’s action and the original forum is strong enough to warrant burdening the plaintiff’s forum with the action.” ’ ” (quoting Ex parte Indiana Mills & Mfg., Inc., 10 So.3d at 540) ).

[7]As this court has stated previously, there is “ ‘no need to burden [a county], with [a] weak connection to the case, with an action that arose in [another county] simply because the individual defendant resides [there] and the corporate defendant does some business there.’ ” Ex parte Wayne Farms, LLC, 210 So.3d 586, 593 (Ala. 2016)(quoting Ex parte Autauga Heating & Cooling, LLC, 58 So.3d 745, 750 (Ala. 2010) ). Consequently, we hold that the trial court exceeded its discretion when it denied Tyson and Craig’s motion for a change of venue. See Ex parte Autauga Heating & Cooling, LLC, 58 So.3d at 748 (“With the adoption of § 6–3–21.1, trial courts now have ‘the power and the duty to transfer a cause when “the interest of justice” requires a transfer.’ ” (quoting Ex parte First Family Fin. Servs., Inc., 718 So. 2d 658, 660 (Ala. 1998) ) ).

Because we have concluded that it is in the interest of justice that the underlying action be transferred to the Cullman Circuit Court, we pretermit discussion of the convenience-of-the-parties-and-witnesses prong also addressed in the petition.6 Ex parte Wayne Farms, LLC, 210 So.3d at 593 n. 2.

Conclusion
Tyson and Craig have demonstrated a clear legal right to have the underlying action transferred to Cullman County. Therefore, we grant the petition and issue a writ of mandamus directing the Marshall Circuit Court to vacate its order denying the motion for a change of venue and to enter an order transferring this action to the Cullman Circuit Court.

*5 PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Parker, and Mendheim, JJ., concur.
Shaw, Main, Wise, and Bryan, JJ., dissent.

SHAW, Justice (dissenting).

I respectfully dissent. Under Ala. Code 1975, § 6-3-21.1(a), a circuit court shall, “for the convenience of parties and witnesses, or in the interest of justice,” transfer an action to another circuit court (emphasis added). In this case, it is alleged that the second provision of the Code section, the “interest of justice,” requires a transfer. Such a transfer is mandated when a county has a “weak” or “little” connection to an action and another county has a “strong” connection to the action. Ex parte J & W Enters., LLC, 150 So.3d 190, 194 (Ala. 2014). The party requesting the transfer must show not just that the transferee county has a strong connection, but “must also demonstrate” that the county in which the case was filed “has a ‘weak’ or ‘little’ connection to the action.” Ex parte Elliott, [Ms. 1160941, December 22, 2017] ––– So.3d ––––, –––– (Ala. 2017) (emphasis added).

In this case, the individual plaintiff, Lisa Burke Huffstutler, resides in Marshall County. The individual defendant, Charles Gregory Craig, also resides in Marshall County. The corporate defendant, Tyson Chicken, Inc. (“Tyson”), maintains a facility in Marshall County, at which Craig works. The claims against the defendants relate to Craig’s employment with Tyson at the Marshall County facility. I cannot conceive how, under these circumstances, Marshall County has a “weak” connection or “little” connection to this case. Because Marshall County’s connection to the case is not weak, the interest of justice does not require a transfer to Cullman County.

To the extent that the main opinion cites in support of the transfer of the action to Cullman County the location of records and the possibility that it might be helpful to the trial court and the jury to view the accident scene, those considerations are not material to the interest-of-justice analysis; instead, they relate to whether “the convenience of parties and witnesses” requires a transfer under § 6-3-21.1(a). The plain language of § 6-3-21.1(a) indicates that factors relating to the convenience of the parties and witnesses involve a wholly separate test different from the interest-of-justice analysis, and the two should not be conflated. I thus respectfully dissent.

Wise, J., concurs.

BRYAN, Justice (dissenting).

The main opinion orders the Marshall Circuit Court to transfer this case to Cullman County under the “interest-of-justice” prong of the forum non conveniens statute, § 6-3-21.1, Ala. Code 1975.
“ ‘Our forum non conveniens analysis has never involved a simple balancing test weighing each county’s connection to an action. Rather, to compel a change of venue under the “interest of justice” prong of § 6–3–21.1, the county to which the transfer is sought must have a “strong” nexus or connection to the lawsuit, while the county from which the transfer is sought must have a “weak” or “little” connection to the action.’ ”
*6 Ex parte Elliott, [Ms. 1160941, December 22, 2017] ––– So.3d ––––, –––– (Ala. 2017) (quoting Ex parte J & W Enters., LLC, 150 So.3d 190, 196 (Ala. 2014) ). I emphasize that, to order a transfer under the interest-of-justice prong, the case must have both a “strong” connection to the county to which the transfer is sought and a “weak” or “little” connection to the county in which the case is pending. Ex parte Elliott, ––– So.3d at –––– (“Even accepting Allstate’s contention that Montgomery County has a ‘strong’ connection to this action, we note that Allstate must also demonstrate that Lowndes County has a ‘weak’ or ‘little’ connection to the action.”). I agree with the main opinion that Cullman County, the proposed transferee forum, has a strong connection to this case. However, I do not think that Marshall County, the proposed transferor forum, has a weak connection to this case. Thus, I disagree with the decision to order the transfer to Cullman County.

Marshall County’s connection to the case is not “weak” or “little.” The plaintiff, Lisa Burke Huffstutler, resides in Marshall County. One of the two defendants, Charles Gregory Craig, an employee of Tyson Chicken, Inc., also resides in Marshall County. According to the accident report, Craig works for Tyson out of its facility in Marshall County. Thus, every party in this case has a presence in Marshall County. Huffstutler filed claims alleging (1) negligence and/or wantonness against Craig, (2) negligent and/or wanton supervision or training by Tyson, and (3) negligent and/or wanton hiring, retention, and entrustment by Tyson. It is reasonable to believe that, regarding the second and third claims, there will be significant evidence submitted regarding Craig’s employment at the Tyson facility in Marshall County. Huffstutler’s husband and son, who both live with her in Marshall County, may testify about the effect of her injuries. It is evident that the connections to Marshall County here are not weak.

Ex parte J & W Enterprises, supra, illustrates that the connections here are not weak. In Ex parte J & W Enterprises, like this case, the plaintiff was injured in an accident involving a tractor-trailer truck. The plaintiff sued the driver of the truck and the driver’s employer in Clarke County. This Court noted that the driver of the truck lived in Clarke County and that the employer’s principal place of business was in Clarke County. The Court further noted that “it stands to reason that documents relevant to [the plaintiff’s] claims, particularly his claims of negligent or wanton entrustment, hiring, retention, and training, are located at [the employer’s] place of business in Clarke County.” 150 So.3d at 197. In denying the mandamus petition seeking to transfer the action to Mobile County, this Court concluded that the connections to Clarke County were not “weak.” 150 So.3d at 197.

As the main opinion notes, there are some distinctions between J & W Enterprises and this case. However, on the whole, the connections between Marshall County and this case are at least as strong, if not stronger, than the connections between Clarke County and the case in J & W Enterprises. Like that case, the defendant driver in this case, Craig, resides in the proposed transferor forum. The main opinion notes that the principal place of business of the driver’s employer in J & W Enterprises was located in the proposed transferor forum, while Tyson’s principal place of business is in Arkansas. Despite that, the accident report indicates that Craig works for Tyson at its facility in the proposed transferor forum, which is a significant connection, regardless of where Tyson’s chief executive offices are located. The main opinion alleges another distinction by noting that “Tyson asserted in its motion for a change of venue that all the requested documentary evidence relating to Craig’s employment and training is located at its Cullman County facility, not its Marshall County facility.” ––– So.3d at ––––. However, that is merely an assertion by Tyson; the trial court did not appear to have any evidence before it supporting that assertion. Of course, “[m]otions, statements in motions, and argument of counsel are not evidence.” Ex parte Merrill, [Ms. 1170216, May 18, 2018] ––– So.3d ––––, –––– n. 4 (Ala. 2018). Moreover, Tyson and Craig, as the parties seeking the transfer, had the burden of establishing that a transfer under § 6–3–21.1 is justified. Ex parte Wachovia Bank, N.A., 77 So.3d 570, 573 (Ala. 2011). In J & W Enterprises, the connection to the proposed transferor forum was not considered to be weak, despite the fact that the plaintiff resided in Texas. In this case, Huffstutler resides in the proposed transferor forum; in this regard, the connection to that forum is actually stronger than it was in J & W Enterprises.

*7 In this case, every party –– Huffstutler, Tyson, and Craig –– can be found in Marshall County; those are not weak connections. The trial court did not exceed its discretion in declining to order the transfer of this case from Marshall County to Cullman County. The trial court’s decision is in line with this Court’s instruction in J & W Enterprises. Therefore, I respectfully dissent.

Main, J., concurs.
All Citations
— So.3d —-, 2018 WL 6259259

Footnotes

1
In response to this mandamus petition, Huffstutler filed a motion to strike Appendix II of the petition on the ground that it included evidence that was not submitted to the trial court. This Court granted that motion to strike. Accordingly, we will not consider Appendix II or any arguments based on the documents in it.

2
Tyson and Craig allege the collision occurred near the crest of a hill where a cautionary road sign is located to warn of the upcoming intersection.

3
In their original motion, Tyson and Craig stated that 38 of the 43 document requests served on Tyson “concern, pertain, or relate to information, witnesses, and/or documents located by Tyson in Cullman County.”

4
The accident report listed Huffstutler’s home address as Cullman County, and Huffstutler admits that she owns a house there in which she lived previously. However, she submitted an affidavit to the trial court stating that she currently resides with her mother in Marshall County. We cannot say that the trial court erred in concluding, if it did, that Huffstutler resides in Marshall County.

5
Tyson is a foreign corporation with its principal place of business in Springdale, Arkansas.

6
It is, however, worth noting that a change of venue to Cullman County will not create an inconvenience for the parties and the potential witnesses. As discussed previously, a substantial number of the potential witnesses and a substantial amount of the documentary evidence are located in Cullman County. Although the plaintiff resides in Marshall County, she also owns a house in Cullman County and is employed there.

2018 IL App (3d) 170797WC-U
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
Appellate Court of Illinois, Third District,
WORKERS’ COMPENSATION COMMISSION DIVISION.
LLOYD ROBERTS, Appellant,
v.
THE ILLINOIS WORKERS’ COMPENSATION COMMISSION et al. (USF Holland), Appellee.
NO. 3-17-0797 WC
|
FILED November 30, 2018
Appeal from Circuit Court of Rock Island County
No. 16MR65
Honorable Kathleen Ellen Mesich, Judge Presiding.

ORDER
JUSTICE CAVANAGH delivered the judgment of the court.
*1 ¶ 1 Held: The Commission’s finding that claimant failed to prove that his condition of ill-being was causally connected to his workplace accident was not against the manifest weight of the evidence and it committed no error in denying claimant compensation under the Act.

¶ 2 On July 9, 2013, claimant, Lloyd Roberts, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2012)). He sought benefits from his employer, USF Holland, claiming he injured his wrist on May 4, 2012, in a work-related accident when he attempted to close a padlock on his tractor trailer door. Following a hearing, the arbitrator found claimant proved that the accidental injury he sustained arose out of his employment, but his present condition of ill-being was not causally related to the accident. The arbitrator denied him benefits under the Act. On review, the Illinois Workers’ Compensation Commission (Commission) affirmed and adopted the arbitrator’s decision. On judicial review, the Rock Island County circuit court affirmed the Commission’s decision, concluding it was not against the manifest weight of the evidence. We affirm.

¶ 3 I. BACKGROUND
¶ 4 On November 13, 2014, the arbitration hearing was conducted with claimant as the only testifying witness. In support of his claim, he also presented his written medical records, which were admitted into evidence. The employer offered an opposing expert opinion through the evidence deposition of Dr. Mark Cohen, a board certified orthopedic surgeon who specializes in disorders of the hand, wrist, forearm, and elbow. The following is a summary of the evidence presented.

¶ 5 Claimant testified he had worked for the employer as a truck driver since 2003. He had not previously suffered any injury to his right hand or wrist. On May 4, 2012, he arrived at work to begin his shift at approximately 6 a.m. After his truck was loaded, he attempted to lock the padlock on the trailer door. He held the approximate six-inch lock in his left hand and bumped the lock with the heel of his right hand. He struck the lock three times, each blow with more force, until he was successfully able to close the padlock. After the third strike, he said he noticed his hand and wrist were “stinging, hurting, pain.” He said “[i]t started hurting immediately.” At the moment of impact, his wrist “[b]ent backwards” approximately “45 degrees.”

¶ 6 On May 21, 2012, approximately two weeks after the accident, the employer suggested to claimant he be evaluated at Concentra Medical Center (Concentra). He was evaluated by Dr. Lester Kelty, a family practice specialist. Claimant complained of pain and numbness in third and fourth digits on his right hand. His x-rays showed no fractures, so he was diagnosed with a contusion. After no relief in his pain, claimant returned to Concentra on June 13, 2012, and was evaluated by Dr. Patricia Dunbar, another family practice specialist. She ordered an MRI, which revealed tears in the triangular fibrocartilage complex (TFCC) and the scapholunate ligament. On June 27, 2012, Dr. Dunbar indicated claimant’s diagnosis of two internal wrist tears was “compatible with the history of his injury[.]”

*2 ¶ 7 On July 5, 2012, claimant was evaluated by Dr. James Lyles, an orthopedist at ORA Orthopedics. Claimant was initially treated with an injection into the TFCC and given work restrictions. With no reported improvement, on August 15, 2012, Dr. Lyles performed arthroscopic surgery. On September 12, 2012, claimant underwent a second surgery when Dr. Lyles performed a right ulnar osteotomy and shortening. Claimant participated in physical therapy and follow-up appointments with Dr. Lyles. On November 29, 2012, Dr. Lyles diagnosed claimant with an early onset of reflex sympathetic dystrophy (RSD).

¶ 8 On July 1, 2013, in Dr. Lyles’s opinion, claimant had reached maximum medical improvement and was “unable to return to work.” Claimant still had pain and had difficulty performing daily activities. According to Dr. Lyles, claimant’s condition was “consistent with [RSD] following scapholunate ligament reconstruction [and] ulnar abutment osteotomy following a trauma.”

¶ 9 At the employer’s request, on December 9, 2013, claimant was examined pursuant to section 12 of the Act by Dr. Cohen. According to Dr. Cohen, claimant was predisposed to suffering a chronic or degenerative tear of the TFCC because he was born with his ulna bone longer than his radius bone. Nevertheless, in Dr. Cohen’s opinion, striking a padlock with the fleshy heel of his hand (the hypothenar region) would not cause the hyperextension of the wrist as is generally required to cause a tear in the TFCC. In fact, it was difficult for Dr. Cohen to imagine how attempting to lock the padlock “with a sort of uppercut motion” would cause the tear. He said “[a]cute tears typically occur from a fall on the outstretched hand. Chronic tears can occur otherwise, meaning there’s actually two mechanisms by which the TFCC can get injured.” Acute tears generally result from the hyperextension of the wrist. On the other hand, chronic tears typically occur in people who are “predisposed to chronic tears, people who are born with one bone of their forearm longer than the other; the ulna bone being longer than the radius.”

¶ 10 Dr. Cohen said he understood the mechanism claimant was using to close the lock (striking the lock with the heel of his hand in an uppercut motion), but “[t]hat is not the mechanism by which someone has a tear of which we’re discussing.” He said he had “never heard of that mechanism causing tears of either the TFCC or the scapholunate ligament. *** It just doesn’t fit anything that I have ever been taught or seen practicing in hand and wrist surgery for the past 20 years.” This was so even with claimant’s degenerative condition. He agreed that “[a]nything is possible,” but he does “not believe it is reasonable, and [he does] not believe it is logical.”

¶ 11 Dr. Cohen stated:
“When you use your hand as a hammer, you stabilize your wrist and you strike another object, such as a lock. Your wrist and hand are working together, and you are, before contact, firing the muscles to keep your wrist in a stable position. Striking an object with your palm does not typically lead to extension of the wrist. It certainly doesn’t lead to hyperextension of the wrist with the type of force that is typically needed to tear these ligaments.”

¶ 12 The doctor indicated it would be expected for claimant to suffer numbness in his two rightmost fingers after suffering a hand contusion to the ulnar nerve. When people use their hand as a hammer, they typically present with “hypothenar hammer syndrome,” tingling in their ring and small fingers from using their hand as a hammer. Thus, claimant’s complaint of numbness and tingling in those fingers was, in Dr. Cohen’s opinion, “very consistent with his history and the original diagnosis of a hand contusion.” Dr. Cohen noted claimant complained of pain in his palm and pain with resisted finger movement. He noted claimant “did at one point have pain with wrist extension[, b]ut much of his pain was involving his hand, not his wrist, prior to the surgeries. In fact, on July 5, 2012, Dr. Lyles documented that claimant had a negative Watson test bilaterally. He said: “The Watson is a test used to determine symptomatic scapholunate instability.” Nothing in his Concentra notes from May through July 2012 indicated claimant was having TFCC pain or that there was laxity in the scapholunate ligament.

*3 ¶ 13 Dr. Cohen stated that over one third of individuals claimant’s age have tears in ligaments within the wrist, including the TFCC and the scapholunate ligament. However, the MRI was incapable of identifying whether the tears were degenerative/chronic or acute/traumatic. He said: “My opinions are that [claimant] was predisposed to a degenerative tear in his TFCC. My other opinion is that striking a lock with his palm in May of 2012, in my opinion, would not have led to pathology within his wrist specifically.” It was possible for degenerative TFCC tears to be asymptomatic in individuals, like claimant, who are ulnar positive. Further, it was possible for a traumatic injury to cause a previously asymptomatic degenerative TFCC tear to become symptomatic and require surgery. However, such trauma would likely involve a fall on an outstretched hand where the wrist becomes hyperextended. Dr. Cohen testified his opinions were all based upon a reasonable degree of medical and surgical certainty.

¶ 14 In his written report, which was admitted as an exhibit to his deposition, Dr. Cohen stated:
“Causation in this case is somewhat difficult from this retrospective perspective. I must state that it is somewhat difficult for me to understand how a direct trauma to an extended palm could lead to both irreversible, ulnocarpal impaction and a scapholunate ligament tear. However, my opinions in this case are limited, based on the inability to review previous medical records and imaging studies.”
According to Dr. Cohen, claimant’s diagnosis “appears to be persistent right wrist pain following two previous surgical procedures.” In his opinion, claimant was at maximum medical improvement. In a follow-up letter to the employer’s counsel dated May 23, 2014, also admitted as an exhibit to his deposition, Dr. Cohen stated he had since reviewed “an abundant amount of [claimant’s] previous medical records.” After his review, he stated that he
“continue[s] to have a difficult time understanding how wrist ligament pathology could occur from a direct blow to the ulnar base of the hand. In fact, the initial notes from May 21, 2012, do not comment at all with respect to [claimant’s] wrist. I do understand that a magnetic resonance scan from June 2012 showed ligament pathology. However, this is seen in almost a third of patients over the age of 30. I am again not convinced that the ligament findings on the magnetic resonance scan were secondary to the May 2012 trauma. Other than that, the complete medical record review in no way changes my opinions in this case.”

¶ 15 After the hearing, the arbitrator determined that claimant was injured in a work-related accident, but that accident was not the cause of claimant’s current condition of ill-being. Finding no causal connection between claimant’s current condition and the May 4, 2012, work-related accident, the arbitrator determined claimant was not entitled to benefits. The Commission and the circuit court agreed. Claimant appeals, arguing the Commission erred in finding he failed to prove causation. He claims Dr. Cohen misinterpreted the mechanism of claimant’s injury and accordingly, the Commission misinterpreted the evidence.

¶ 16 This appeal followed.

¶ 17 II. ANALYSIS
¶ 18 Under the Act, compensable injuries must arise out of and in the course of employment. 820 ILCS 305/1(d) (West 2012); Sisbro, Inc. v. Industrial Comm’n, 207 Ill. 2d 193, 203 (2003). Claimant has the burden of showing the injury was work related by a preponderance of the evidence. 820 ILCS 305/1(d) (West 2012). “The ‘arising out of’ component is primarily concerned with causal connection” and is satisfied if the claimant shows “the injury had its origin in some risk connected with, or incidental to, the employment so as to create a causal connection between the employment and the accidental injury.” Sisbro, 207 Ill. 2d at 203.

¶ 19 Here, the Commission found that claimant’s act of striking the padlock with the palm of his hand to force it closed was an accidental injury which arose out of and in the course of his employment. Neither party challenges that finding. Instead, claimant argues that his work-related accident was the cause of his current condition, debilitating injuries to his wrist after undergoing two surgeries to repair tears to the TFCC and the scapholunate ligament. He contends the manifest weight of the evidence supports his position.

*4 ¶ 20 The parties agree on the applicable standard of review. Whether claimant’s ill-being is attributable solely to a degenerative process of a preexisting condition or to an aggravation or acceleration of a preexisting condition because of an accident is a factual determination to be decided by the Commission. Sisbro, 207 Ill. 2d at 205-06. “[A] reviewing court must not disregard or reject permissible inferences drawn by the Commission merely because other inferences might be drawn, nor should a court substitute its judgment for that of the Commission unless the Commission’s findings are against the manifest weight of the evidence.” Sisbro, 207 Ill. 2d at 206. “ ‘[T]o the extent that the medical testimony might be construed as conflicting, it is well established that resolution of such conflicts falls within the province of the Commission, and its findings will not be reversed unless contrary to the manifest weight of the evidence.’ ” Sisbro, 207 Ill. 2d at 206 (quoting Caterpillar Tractor Co. v. Industrial Comm’n, 92 Ill. 2d 30, 37 (1982).

¶ 21 “A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly apparent.” City of Springfield v. Illinois Workers’ Compensation Comm’n, 388 Ill. App. 3d 297, 312-13 (2009). On review, “[t]he appropriate test is whether there is sufficient evidence in the record to support the Commission’s finding, not whether this court might have reached the same conclusion.” Metropolitan Water, 407 Ill. App. 3d at 1013.

¶ 22 In his brief, to support his position, claimant seems to misconstrue the evidence, takes certain opinions out of context from which they were given, and asserts that certain evidence weighs more heavily than other evidence without justification. The totality of the evidence suggests the following. After first seeking medical treatment for pain and numbness in his hand and fingers, claimant was diagnosed with a contusion, as he had a full range of motion and good grip strength. After claimant’s MRI revealed the tears, Dr. Dunbar found claimant’s condition was compatible with the injury. Claimant relies on this assertion by Dr. Dunbar. However, Dr. Dunbar is not an orthopedic surgeon. The orthopedic surgeons who did evaluate him (Drs. Lyles and Cohen) provided no evidence of causal connection between the tears and the accident.

¶ 23 Only the testimony of Dr. Cohen (in the form of a deposition) was presented at the hearing. His testimony was clear that striking a padlock using the heel of his hand (otherwise known as the hypothenar eminence where the ulnar nerve travels through from the fingers) as a hammer would not result in the hyperextension of the wrist. Claimant suggests Dr. Cohen misinterpreted the mechanism claimant used to force the lock closed. Dr. Cohen repeatedly referred to using the palm as a hammer. Claimant suggests this characterization was incorrect because claimant used his palm in an upward motion. Claimant’s correction assumes Dr. Cohen’s use of the term hammer meant only using the palm in a downward stroke. Claimant’s assumption is not supported by the evidence. Dr. Cohen’s use of the word hammer presumably referred to using the palm of one’s hand to strike an object, whether striking upward or downward. Dr. Cohen repeatedly stated he understood claimant struck the lock with an uppercut motion.

¶ 24 The crux of Dr. Cohen’s testimony was that striking a padlock with the palm of the hand would not cause a hyperextension of the wrist. Claimant’s own testimony that he indeed hyperextended his wrist when it “bent backwards” was merely a self-serving conclusion. Further, in Dr. Cohen’s opinion, striking a padlock with the palm of the hand would not cause a tear in the TFCC, neither a degenerative nor an acute tear. Dr. Cohen testified that claimant was more susceptible to a degenerative tear because his ulna bone was longer than his radius bone. He also said it was common for someone claimant’s age to have asymptomatic tears. It was “absolutely” possible for a previously asymptomatic tear to become symptomatic upon the occurrence of a traumatic injury. However, that traumatic injury would necessarily involve the hyperextension of the wrist. And again, the evidence does not support the medical conclusion that claimant’s traumatic injury involved the hyperextension of his wrist.

*5 ¶ 25 The Commission’s finding is supported by the manifest weight of the evidence. Claimant failed to demonstrate that his condition of ill-being, the tears in his wrist requiring surgical intervention, was caused by his work-related accident on May 4, 2012, when he struck a padlock with the heel of his hand. An opposite conclusion is not clearly apparent. See City of Springfield, 388 Ill. App. 3d at 312-13. Accordingly, the Commission committed no error in denying claimant compensation under the Act.

¶ 26 III. CONCLUSION
¶ 27 For the reasons stated, we affirm the circuit court’s judgment, which affirmed the Commission’s decision.

¶ 28 Affirmed.

Justices Hoffman, Hudson, and Barberis concurred in the judgment.
Presiding Justice Holdridge dissented.

¶ 29 PRESIDING JUSTICE HOLDRIDGE, dissenting.

¶ 30 In this matter, the Commission relied exclusively on the opinion of Dr. Cohen that the claimant’s condition of ill-being was not causally related to his May 4, 2012, work-related accident. Dr. Cohen reached this conclusion by surmising that the mechanism of the claimant’s injury involved a downward “hammer” motion striking the lock with a stabilized wrist. Based on this supposition, Dr. Cohen opined that such a motion would not likely produce tears to the TFCC or scapholunate ligament as diagnosed in the claimant. Given his understanding of the mechanics of the accident, Dr. Cohen further surmised that, since over one-third of all individuals over 40 years of age have asymptomatic micro-tears in the ligaments of the wrist, it would be more likely that the claimant’s condition was entirely related to a degenerative condition. Dr. Cohen further speculated that the claimant’s congenital condition of his ulna and radius might have predisposed him toward the diagnosed TFCC and ligament tears.

¶ 31 There is nothing in the record, however, to support Dr. Cohen’s description of the mechanism of injury as a “downward” or “hammer” motion. He does not report that the claimant described the accident using those terms. In fact, nowhere in the record is there a report of the claimant describing the event in those terms. To the contrary, the claimant credibly testified that he struck the lock in an upward or “uppercut” motion. Moreover, Dr. Lyles, the claimant’s treating surgeon, reached a different conclusion, opining that the claimant’s condition of ill-being was consistent with a recent traumatic occurrence.

¶ 32 It is axiomatic that the Commission’s purview is to weigh medical evidence and resolve conflicts between medical opinion testimony, and on appeal, “[w]e will not merely reevaluate the credibility of [conflicting medical expert] witnesses and substitute our judgment for that of the Commission.” Compass Group v. Illinois Workers’ Compensation Comm’n, 2014 IL App (2d) 121283WC, ¶ 19. However, “[e]xpert opinions must be supported by facts and are only as valid as the facts underlying them.” (Internal quotation marks omitted.) Gross v. Illinois Workers’ Compensation Comm’n, 2011 IL App (4th) 100615WC, ¶ 24; see also Sunny Hill of Will County v. Illinois Workers’ Compensation Comm’n, 2014 IL App (3d) 130028WC, ¶ 36. “An expert opinion is only as valid as the reasons for the opinion.” (Internal quotation marks omitted.) Gross, 2011 IL App (4th) 100615WC, ¶ 24. If the foundational basis of an expert’s opinion is grounded in guess or surmise, it is too speculative to be reliable. Id.

¶ 33 Here, the reasons cited by Dr. Cohen in support of his causation opinion do not support the opinion and are based exclusively on “factual” suppositions that are not supported anywhere in the record. First, Dr. Cohen’s description of the mechanism of the injury as a “hammer” motion is not supported by any facts contained in the record. He does not indicate how he arrived at his conclusion regarding the mechanics of the claimant’s injury, other than his observation that “acute tears typically occur from a fall on the outstretched hand” while “chronic tears can occur otherwise.” Without any basis in the facts presented to him, Dr. Cohen speculated that the claimant could not have injured the tendons and ligaments in his wrist because the muscles of the wrist stabilized ligaments and tendons thereby preventing the injuries of the nature suffered by the claimant. But, as his testimony clearly shows, the explanation that the muscles stabilized the wrist ligaments and tendons is only valid if it is presumed that the claimant was striking the lock using a downward “hammer” motion. Moreover, it was only by ruling out injury resulting from the claimant striking the lock in a “hammer” like manner that Dr. Cohen could then speculate that the claimant’s condition of ill-being was either completely degenerative or the result of a congenital condition. Clearly, if his description of the mechanics of the accident is flawed and unsupported by the record, then his speculation as to alternative causes of the claimant’s condition have no factual validity.

*6 ¶ 34 I do not believe that there is sufficient evidence in the record to support the opinion of Dr. Cohen that the claimant’s condition of ill-being was caused entirely by either a degenerative or congenital condition. His opinion that the claimant’s injury was not causally related to his employment is predicated entirely upon an understanding of the mechanics of the injury that is not supported in the record. In contrast, Dr. Lyles opined that the claimant’s condition was traumatically induced and the claimant’s unrebutted testimony established that his wrist pain began only after he struck the lock in an upward manner in contradiction to Dr. Cohen’s supposition.

¶ 35 In sum, although Dr. Cohen asserted that the claimant’s condition of ill-being was not casually related to his employment, he did not provide a proper factual foundation to establish the reliability of his opinion. I would, therefore, reverse the Commission’s finding on causation and remand the matter to the Commission for further proceedings.

All Citations
Not Reported in N.E. Rptr., 2018 IL App (3d) 170797WC-U, 2018 WL 6318570