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.

On June 8, 2012, the Alabama Court of Civil Appeals amended its previous opinion in Denmark v. Industrial Manufacturing Specialists, Inc. As reported on our blog on May 7, 2012, the Court of Appeals previously held that Denmark suffered a 10% partial loss of use of his left foot, and that since IMS had already paid TTD benefits in excess of the value of the 10% PPD, no further benefits were owed. However, pursuant to the Alabama Workers’ Compensation Act, the number of weeks of TTD benefits already paid are only subtracted from an award of permanent partial disability to the body as a whole, and said weeks are not subtracted from a PPD award to a scheduled member. As such, the Court amended its previous order to delete the finding that no further benefits were owed.

On May 4, 2012, the Alabama Court of Civil Appeals released its decision in the case of Denmark v. Industrial Manufacturing Specialists, Inc. In that case, the Court addressed whether a 16 year old boy who suffered an ankle injury was entitled to double compensation, and whether he was entitled to be compensated according to the schedule for his leg or only for his foot. Lucas Denmark worked part time for IMS, cutting metal-bar stock using a band saw. In March 2006, he and another employee were loading bar stock onto a table, when some of it fell on his left ankle. Denmark had surgery and a metal plate was inserted in his ankle. Although he was eventually released to return to work without any restrictions, Denmark continued to complain of pain that radiated both down to his foot and up his leg. A Circuit Court Judge in Morgan County found that Denmark suffered a 10% partial loss of use of his left foot, and that since IMS had already paid TTD benefits in excess of the value of the 10% PPD, Denmark was not entitled to any additional compensation for his injuries. The trial Court also found that IMS had violated child labor laws by employing Denmark to operate a band saw, but found that he has not entitled to double compensation because there was no nexus between operating the saw and the injury.

Denmark appealed, asserting that the trial Court erred in failing to award him compensation for the partial loss of use of his leg as opposed to just his foot, and that it further erred in failing to award double compensation pursuant to § 25-5-34 after finding that IMS employed him in violation of child labor laws. Denmark argued that since his ankle is above his foot and the pain extended to his leg, he should be compensated for the partial loss of use of his leg. Denmark argued that the Court’s holdings in Boise Cascade Corp. v. Jackson, 997 So.2d 1026, 1032 n. 8 (Ala.Civ.App. 2000), Wolfe v. Dunlop Tire Corp., 660 So.2d 1345 (Ala.Civ.App. 2005), and Simpson v. Dallas Selma Cmty. Action Agency, 637 So.2d 1360 (1994) dictated that an injury extending from a larger scheduled member into a smaller scheduled member must be compensated as an injury to the larger member. However, the Court noted that according to § 25-5-57(a)(3)a.15 of the Act, the amputation of a leg between then knee and ankle shall be considered the equivalent of the loss of the foot. Since there was no evidence that Denmark’s pain extended up his leg beyond his knee, and based on the logic of § 25-5-57(a)(3)a.15, the trial Court properly found that Denmark’s injury was one limited to the foot, and not the leg.

However, the appellate Court reversed the trial Court’s decision regarding double compensation. There was no dispute that minors are prohibited from operating saws, and there was no dispute that moving large pieces of bar stock to put them into the saw was part of Denmark’s job. As such, the Court found that although Denmark was not actually operating the band saw at the time of the accident, Denmark was entitled to double compensation because he was working at a job that he was prohibited from doing due to his age.

On August 19, 2011 the Alabama Court of Civil Appeals released its second opinion in the matter styled G.UB.MK Constructors v. Davis, which was previously remanded to the trial court on March 19, 2010 (See March 23, 2010 blawg entry). On remand the trial court was instructed to address whether the employee presented evidence of enough pain to take the hand injury outside of the scheduled under the Graben test (See March 18, 2010 blawg entry).

The Court of Civil Appeals noted that, according to the Graben test, the pain must be totally or virtually totally disabling in order to qualify as an exception to the schedule. This means the pain must be such that it completely, or almost completely, prevents the worker from engaging in physical activities with the uninjured parts of his body. The Court found that evidence showing that the pain interferes with the employee’s activities and is throbbing, aching pain at a level of 8 out of 10 was not enough. The Court noted that the employee testified that he was able to perform his job with the restriction that he not use his left hand. The employee was still performing this job at the time of the trial. There was no testimony that the pain in the left hand prevented him from otherwise fully using the uninjured parts of his body, including his dominant right hand.

Therefore, the Court held that evidence of severe, unremitting pain in the scheduled member does not meet the standard of totally or virtually totally debilitating to the body as a whole.

The Alabama Supreme Court released its opinion in Ex parte Thomas Hayes (In re: Vintage Pharmaceuticals, LLC v. Thomas Hayes) on March 18, 2011, holding that an injured worker will not be limited to the schedule when the effects of an injury extend to and interfere with the effective functioning of the remainder of the injured worker’s body.

The employee’s initial claimed injury was to his right heel. At trial, the evidence showed that he suffered a calcaneal fracture, and that a subsequent infection caused skin loss, severe pain, and loss of feeling in his heel. The employee alleged that he was permanently and totally disabled and testified that, as a result of the injury, he had to keep his right leg elevated the majority of the time, had to wear a calf-high hard brace on his right foot at all times, and experienced severe pain that was debilitating. He also presented evidence that he had a congenital birth defect in his left uninjured foot and that, due to the right foot injury, he was unable to compensate for the left foot. As a result, he suffered from poor balance and stability. Finally, he offered the testimony of a vocational expert who testified that, due to his severely altered gait, the fact that he had to use a cane to walk, and his obvious appearance of having a substantial physical disability, the employee was permanently and totally disabled. The employer argued that the employee was limited to recovery under the schedule as set forth in Alabama Code § 25-5-57(a)(3)(a).

The trial court agreed with the employee and treated his injury as to the body as a whole rather than as a scheduled member, and awarded permanent and total disability benefits. The employer appealed and the Alabama Court of Civil Appeals reversed, holding that the employee’s injury was limited to the schedule, relying on its previous ruling in Boise Cascade Corp. v. Jackson, 997 So. 2d 1026, 1036 (Ala. Civ. App. 2007). In the previous case of Ex parte Drummond Co., 837 So. 2d 831 (Ala. 2002), the Alabama Supreme Court held that, in order for an injury to a scheduled member to be compensated outside the schedule, there must be substantial evidence that the effects of the injury extend to other parts of the body and affect their efficiency. However, in Boise Cascade, the Alabama Civil Court of Appeals held that an employee who had sustained a foot injury could not recover non-scheduled disability benefits on the basis of back pain absent a showing that the foot injury caused a permanent physical injury to his back.

In its analysis, the Court of Appeals stated that the trial court erred by awarding compensation outside of the schedule because, although the employee showed that the effects of his injury extended to other parts of his body and affected their efficiency by affecting his balance and stability, he failed to show that his right foot injury actually caused an injury to any particular non-scheduled part of his body. However, after the Court of Appeals issued its opinion in Vintage Pharmaceuticals, LLC v. Hayes, the Supreme Court reversed the lower court’s decision in Boise Cascade. In Ex parte Jackson, 997 So. 2d 1038 (Ala. 2007), the Supreme Court explained that the test in Drummond does not require damage to the physical structure of other parts of the body in order to take an injury out of the schedule. The Supreme Court also pointed out that the facts of Hayes were substantially different from those in Drummond. It noted that in Drummond, the employee did not establish that the effects of his injury extended to other parts of the body based on testimony that his knee only swelled occasionally, the employee was assigned a 1% impairment, and had returned to work for almost a year after his knee surgery. It further noted that the employee’s injury had severely limited his ability to walk, and that he had been able to work prior to his injury, despite the congenital defect in his left foot. It also distinguished the two cases by noting that the employee had to use a cane or walker at all times, had fallen frequently, and had to sit or lie down frequently throughout the day with his foot elevated. By applying the facts of Hayes to the test set out in Drummond, the Supreme Court reversed the Court of Civil Appeals, holding that the effects of the employee’s foot injury extended to other parts of his body and affected their efficiency, and he was therefore entitled to compensation outside of the schedule.

On December 17, 2010 the Court of Civil Appeals released its opinion in Caseco, LLC. v. Dingman. The Court of Civil Appeals addressed the Last-Injurious-Exposure Rule and a psychological issue, allowing a scheduled injury to be removed from the schedule.

I. Last Injurious Exposure Rule

At the trial Court level, it was shown that the employee suffered an ankle injury in 2001 and continued to have complaints of pain and several surgeries through 2009. Since the initial injury, the employee had worked for two different employers while treatment was continued from the initial 2001 injury. The Last-Injurious-Exposure Rule states that the carrier covering the risk at the most recent compensable injury bearing a causal relation to the disability bears the responsibility. In order to make this determination, the court has to decide if the second injury is a new injury, an aggravation of a prior injury, or a recurrence of an old injury. If the second injury does not contribute even slightly to the cause of disability, then it is deemed a recurrence. A recurrence is supported by continued complaints of symptoms indicating that the original condition persisted and that the second incident culminated in a second period of disability. The court will deem that its an aggravation and, therefore, a new injury if the second injury contributed independently to the final disability. The court in Caseco noted the following evidence indicating a recurrence instead of a new injury: continued complaints of pain throughout; and the authorized treating physician testifying that the injury with the original employer was the cause and not the employment with the two latter employer. The Court of Appeals said that this was sufficient evidence to show that the plaintiff suffered a recurrence and not a new injury.

II. Psych Avoiding the Pain Exception for Removal from the Schedule

At the trial level, the court indicated that the employee’s pain took the ankle injury out of the schedule; that a back problem related to the ankle took the injury out of the schedule; and that the psychological disorder took the ankle injury out of the schedule. The Court of Appeals only addressed the psychological issue and determined that it removed the injury from the schedule. Therefore, they did not address the trial court’s findings that the complaints of pain and/or the back problem took the injury out of the schedule.

The Court of Appeals stated that for a psychological injury to be compensable the injury only has to contribute to the psychological issue. In order to show that the on the job injury was a proximate contributing cause to the psychological injury, the evidence only has to show that the injury contributed to and/or exacerbated (a temporary flair up) any pre-existing psychological issues that the plaintiff may have been suffering from, as the result of a pre-existing condition or pre-existing pain. In the Caseco ruling, the Court of Appeals focused on the following testimony: physician testimony that chronic pain and depression go hand in hand; physician testimony that the ankle was a major contributing factor to the depression; physician’s testimony that the plaintiff would be devastated when he found out that his ankle injury would not allow him to return to work; plaintiff’s testimony that the pain led to his depression, along with the fact that his inability to work created marital and financial problems. The Court of Appeals stated that even if the marital and financial problems were causes to the depression, the psychological injury would still be compensable and remove the injury from the schedule, if evidence revealed that the pain was merely a contributing cause to the psychological problem. Because the Court of Appeals felt that sufficient evidence showed the pain was at least a contributing cause to the depression, the psychological problem would take the injury out of the schedule and, therefore, there was no need to show that the pain was totally and/or virtually totally disabling, which is required for pain alone to take an injury out of the schedule.

 On Friday the Alabama Court of Civil Appeals released an opinion concerning a workers’ compensation case involving an employee who had injured her foot and claimed that, due to the foot pain she continually suffered from the injury, it should not be confined to the schedule. The defendant asserted that they should not be held liable to the plaintiff as she had been working for a subsequent employer, which aggravated her injury, and the second employer should be held liable under the last injurious exposure rule. The trial court agreed with the plaintiff’s argument and did not limit her to the schedule and held that the defendant was liable for workers’ compensation benefits to the employee. The Court of Civil Appeals reversed the trial court because the claimed foot pain did not arise to the level necessary to take an otherwise scheduled member out of the schedule.

G.UB.MK Constructors v. Howard Lee Davis:

On March 19, 2010, the Alabama Court of Civil Appeals released this opinion wherein it reversed the trial court’s decision to remove a hand injury from the schedule. Specifically, the trial court opted to treat the injury as a body as a whole injury because the employee experienced sever pain which extended up his arm and into his shoulder, neck and upper back and effected his ability to perform the duties of his former job. The trial court additionally found that the employee suffered debilitating pain which it recognized as another reason for removing the injury from the schedule.

On appeal, the Court noted that the Drummond test for removing injuries from the schedule states "if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive." It was further noted that the key consideration for said test was not whether the effects of the injury impair the ability of the worker to work in his or her former occupation. Although the employee testified at trial that the efficiency of other parts of his body had been effected, his testimony was not supported by medical records, FCE results, or any expert testimony. Further, the Court held that, even if the effects of the hand injury extended to the other areas of the body as stated by the employee, the record contained no evidence that said effects hindered or impeded the effective functioning of those areas of the employee’s body. As such, the Court reversed the trial court’s decision to remove the injury from the schedule based on the Drummond test.

The Court also noted that pain, in and of itself, can qualify as a reason for removing an injury from the schedule. In this case, the trial court held that the employee had "debilitating" pain. However, the Court noted that the employee must establish that his pain is "totally, or virtually totally, physically disabling" in order for the pain exception to apply. As such the trial court’s decision to remove the injury from the schedule based on pain was also reversed.

Norandal U.S.A. Inc. v. Graben

released 3/12/2010

This was the second time Norandal U.S.A. Inc. v. Graben came before the Court of Appeals. A summary of the previous holding is located in the Scheduled Injury section of this blawg.

The issues resulting in a second appearance before Court of Appeals were whether or not an altered gait or pain isolated in a scheduled member were sufficient to take the injury out of the schedule.

The Court dismissed the Trial Court’s ruling that the employer’s altered gait resulted in the injury falling outside the schedule due to the fact that the Trial Court altered its previous findings of fact. The Trial Court based its opinion on a change in case law. The Court of Appeals held that the Trial Court could not alter its findings of fact in order to issue a ruling that adheres to the new case law.

In regards to the issue of pain isolated in a scheduled member taking an injury outside the schedule, the Court of Appeals reaffirmed its previous holding. It stated that to adhere to the legislation and avoid uncertainty, a high standard must be used to find that pain isolated in a scheduled member takes the injury outside the schedule. The Court of Appeals reestablished the standard as pain that "virtually totally physically disables" the employee. They went on to state that the employee must provide competent proof that the pain completely, or almost completely, debilitates the employee. Moreover, the employee’s subjective complaints of pain must be considered and do not have to be supported by objective findings.

Judge Moore wrote a concurring opinion indicating that he does not agree that pain isolated to a scheduled member should result in an injury to the body as a whole. He stated that severe pain isolated to a scheduled member may justify finding that the employee sustained a total loss of use of the member. However, he opined that if pain is isolated to a member, it should not be treated as adversely affecting other parts of the body. Judge Moore stated that the Court of Appeals must follow the dicta indicated previously by the Supreme Court regarding the "pain exception"; however, he asked the Supreme Court to revisit the "pain exception" to the schedule and declare that it does not exist. In closing, he stated that until the Supreme Court does so, "I will continue to acknowledge that, in very limited circumstance set out in the main opinion, totally or virtually totally debilitating pain isolated in a scheduled member is sufficient to warrant an award of non-scheduled benefits."

Karen Taylor v. Goodyear Tire & Rubber Company, Inc.:   

On November 6, 2009, the Alabama Court of Civil Appeals released this opinion wherein it considered 3 issues. First, it reversed the trial court’s finding that the employee’s shoulder injury fell within the schedule. It noted multiple prior decisions where the Court held that an injury to the shoulder is not an injury to the arm. Second, it affirmed the trial court’s finding that the employee’s back was not a compensable claim. Since there was substantial evidence (including medical testimony) supporting both sides, the Court was obligated to defer to the discretion of the trial court. Third, the employee claimed that the trial court incorrectly calculated the amount of TTD owed. The Court affirmed the trial court on this issue since the trial court determined that TTD was not owed once the doctor released the employee regarding her shoulder injury. Although the doctor did not release the employee for her back problem for several additional months, this was determined not to be a factor in calculating TTD since it was not a compensable injury.

General Elec. Co. v. Baggett (Part II):

On October 9, 2009, in addition to ruling on the issue of a surviving spouse stepping into the shoes of the injured worker, the Court of Appeals laid out the test for a partial loss equaling a total loss. Upon remand after reversal of a permanent and total award for a leg injury, the Trial Court ruled that Mr. Baggett suffered a total loss of his left leg. In this case the authorized treating physician assigning an 8% rating to the body as a whole for a knee injury.

No Alabama case had ever addressed what it takes for a partial loss of a member to result in the total loss of a member. The Court of Appeals looked to Pennsylvania for their answer. The Court of Appeals went on to say that if the employee lost the use of the member for all practical purposes, then it will be considered a total loss of the member. The Court of Appeals focused on the fact that Mr. Baggett experienced "difficulty performing normal daily tasks" and struggled to perform "basic life activities." Finally the Court of Appeals stated: "The loss of the use of a scheduled member does not mean that an injured body part is of absolutely no use whatsoever."

Norandal U.S.A., Inc. v. Welton Graben:

On February 20, 2009, the Alabama Court of Civil Appeals released this opinion wherein it reversed and remanded the trial court’s decision to remove a leg injury from the schedule and award permanent and total benefits. At trial, the employee presented evidence of a compensable leg injury. Approximately 7 years after the work accident and 3 weeks after his most recent surgery, the employee’s knee gave way causing him to fall and injure his shoulder, hip and back. Although the fall happened while he was on a personal errand, injuries that are the direct and natural result of a compensable injury are themselves compensable. However, in such situations, the employee is still responsible for providing notice to the employer. The employee failed to do so and so he was precluded from recovering for any injuries related to the fall. Despite this fact, the trial judge still considered the employee’s pain and the back problems as caused by the employee’s altered gait. In considering this evidence, the trial judge found that the employee’s knee injury extended to other parts of the body and interfered with their efficiency. This was the basis for removing the injury from the schedule and assigning the employee permanent and total benefits. In reversing the trial court, the Court of Appeals noted that it was improper to consider the injuries that resulted from the fall. Further, while there was evidence at trial that the employee had an altered gait, there was no finding by the judge that the altered gait led to problems in other areas of the body. The Court also noted that while pain, on its own, can sometimes justify removing an injury from the schedule, the pain must be totally or virtually totally disabling. Although the trial court noted that the employees pain was chronic and debilitating, it did not make a finding that the pain was totally or virtually totally disabling.

Solomon Motor Company v. Earnest Dean:

In this opinion released on December 19, 2008, the Alabama Court of Civil Appeals considered a trial court’s decision to sidestep the schedule set forth in §25-5-57(a)(3)a and award permanent and total disability benefits for a right knee injury. At trial, the court agreed with the plaintiff’s contention that his compensable right knee injury extended into and effected the efficiency of the plaintiff’s left knee and back. In reversing the trial court, the Court of Civil Appeals noted that the evidence only established a temporary problem with the plaintiff’s back. After a course of medication, the back problem resolved. In order for a trial court to be able to consider an otherwise scheduled member outside of the schedule, the effects of the injury to other parts of the body must be permanent. The court further noted that, even if you accept the plaintiff’s contention that his left knee problem was caused by his right knee injury, this would not remove the injuries from the schedule. The schedule set forth in §25-5-57(a)(3)a provides for the compensation of multiple members of the same class (i.e. both arms or both legs).

Child Day Care Association v. Victoria Christesen:

In this opinion released on December 12, 2008, the Alabama Court of Civil Appeals upheld the trial court’s decision not to apply the §25-5-57(a)(3) schedule to a leg injury and assign a permanent and total award. The evidence at trial revealed that the plaintiff initially incurred an ankle injury. The plaintiff then sustained a knee injury during physical therapy. The plaintiff testified that she suffered debilitating pain and that the effect of her injury extended into her back. Her physician testified that the effects of the plaintiff’s ankle and knee injuries extended into her back thus affecting the efficiency of her back by limiting mobility and range of motion. In Ex Parte Drummond Co., 837 So.2d 831 (Ala. 2002), the Alabama Supreme Court stated that the schedule is not exclusive if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency. Applying the Drummond test to the evidence, the Court of Civil Appeals affirmed the trial court. The Court declined to address the issue of debilitating pain.

The schedule continues to erode away before our very eyes. What is the point of even having a schedule if the employee simply has to follow the Drummond blue print and claim that other parts of the body are somehow affected? The Court in this case did not even reach the issue of debilitating pain which is yet another means of circumventing the schedule. It makes it difficult to evaluate these cases and resolve them when the test is so dependent on the subjective complaints of the employee. There would be a lot less litigation if the courts used a strict application of the schedule.

Gold Kist, Inc. v. Porter --- So.2d ----, 2008 WL 4757112 (Ala.Civ.App. 2008):

In this opinion released on October 31, 2008, the Alabama Court of Civil Appeals affirmed the trial court’s finding that the employee’s bilateral carpal tunnel syndrome was compensable but reversed the court’s decision to remove the injury from the schedule and assign a permanent and total award. In support of the reversal, the Court noted that the pain exception to the schedule should only be applied where a workers' compensation claimant has suffered from abnormally severe pain stemming from a scheduled injury. In this case, the employee had not sought, or been prescribed, any pain medication beyond an occasional over-the-counter analgesic remedy, and her symptoms were admittedly alleviated to some degree by massage and avoidance of use.

Norandal U.S.A., Inc. v. Graben, --- So.2d ----, 2008 WL 4603456 (Ala.Civ.App. 2008):

In this case decided on October 17, 2008, the employer appealed from a judgment awarding the employee permanent-total-disability benefits due to a right-knee injury arising out of and in the course of his employment. Initially, the employee twisted his knee at work while pushing a drum of paint. Three weeks after surgery, his knee buckled causing him to fall and sustain injury to his right hand, right shoulder, and lower back. The employee did not report the injuries from the fall and sought treatment from an unauthorized doctor. A knee injury is treated as a leg injury and, as such, an employee is typically only entitled to the 200 weeks provided for in the schedule. However, if the effects of the loss of the member extend to other parts of the employee’s body and interfere with their efficiency, then the injury can be taken out of the schedule. To prove this, the employee need only prove that the injury to the scheduled member causes pain or other symptoms that render the non-scheduled parts of the body less efficient. the Alabama Court of Civil Appeals agreed that the injuries sustained in the unreported fall could not be considered because the employee did not comply with the notice requirements. However, the evidence that the employee's right knee extended to and interfered with the efficiency of his lower back and hip because of his altered gait was enough to affirm the trial court’s decision.