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.