Alabama Workers' Comp Blawg

  • 10
  • Aug
  • 2012

No Pain No Gain

On August 10, 2012, the Alabama Court of Civil Appeals released its opinion in Gold Kist, Inc. v. Delores Diane Smith wherein it reversed a permanent and total award. At trial, the parties stipulated that the employee’s right ankle fracture was compensable.  Her medical treatment included a surgery to insert 3 screws and a plate followed by a second surgery to remove the hardware. Eventually, the employee was returned to work without restriction. Due to continued complaints of pain in her ankle and new complaints of trouble with her back, the employee opted to see her own doctor who performed an EMG. The test reportedly revealed allodynia (extreme sensitivity to touch) and mechanical allodynia (a gait disorder). The employee testified that, as a result of her injuries, she had trouble performing daily activities and failed to meet the physical demands of four subsequent employers. Based on the foregoing, the trial court removed the injury from the schedule due to complaints of severe pain and awarded permanent and total disability benefits.

 
The Court of Appeals reversed the trial court because the employee did not present sufficient evidence to meet the exceedingly high standard to remove an injury based solely on complaints of pain. Specifically, the Court noted that the employee only took pain medications on an occasional basis and that she could walk and perform daily activities with the use of a cane and occasional breaks to sit as needed. In addition, the evidence revealed that the employee retained significant ability to perform physical activities. In reversing the trial court, the Court held that the employee’s complaints of pain did not rise to the level of totally or virtually disabling.
 
My Two Cents: The focus of the appeal was on the pain exception to the schedule. Although the employee complained of back problems which arguably could have been connected to her altered gait, the issue was not considered on appeal as a means of circumventing the schedule. 

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