Alabama Court of Appeals Finds Inability to Return to Work is not Exception to Schedule
On June 19, 2014, the Alabama Court of Civil Appeals released its second opinion inGoodyear Tire & Rubber Co. v. Bush (). The first time around the Court of Appeals addressed several issues. On appeal the first time the Court of Appeals remanded the case to the trial court since it had not issued findings of fact and conclusions of law to support it's finding that the employee's knee injury affected the use and efficiency of other parts of his body. On appeal the second time, the only issue was whether or not the trial court's ruling that the employee's knee injury should be removed from the schedule, allowing for a permanent and total disability finding, was supported by substantial evidence. At trial testimony from the authorized treating physician was presented that established the employee would ultimately need a knee replacement and would have continued discomfort. The doctor also testified that the knee injury resulted in the following restrictions: 1) no lifting, pushing or pulling over 20 pounds; 2) no bending at the waist, crouching, kneeling, stooping, or squatting; 3) no climbing stairs, ladders, or poles: and 4) avoid navigating unprotected heights since the right knee had reduced balance and stability. The doctor at no point testified that the right knee affected any other body parts. The doctor also did not testify that the restrictions issued arose from problems the employee was having with other body parts. The medicals records presented at trial also indicated that the employee complained solely of right knee pain and dysfunction during each medical visit. The physical therapy records noted hip flexion and extension of 4/5 and 4+/5 but did not state this was an abnormality nor did it state it was due to the right knee injury. The employee testified that he injured his back in 1978 and would still occasionally experience flare-ups and have to take nonprescription pain medication. He testified that the preexisting condition also caused him to limp prior to the on the job injury. In fact, evidence revealed that the employee told his vocational expert that his occasional lower back pain was not related to the right knee. The employee did testify that he now takes Lortab for pain but only for his knee pain. At no time did the employee testify that the right knee injury affected other parts of his body and, in fact, testified to the contrary. Finally, the evidence was undisputed that the employee could not return to his former occupation due to the permanent light duty restrictions placed on him by his doctor. Based, on the above testimony the trial court found the employee had a preexisting back condition but now, as a result of the knee injury, he could no longer perform his duties. They also found that the doctor stated the knee injury affected his body as a whole. As such, the trial court found medial testimony sufficiently connected dysfunction to other body parts as a result of the knee injury. The trial court stated that the doctor had no reason to issues restrictions related to the other body parts because the restrictions issued for the knee would encompass the restrictions to the other body parts. Finally, the court supported its decision based on its observation of the employee limping and using furniture to steady himself as he walked around the courtroom. The Alabama Court of Appeals disagreed with the trial court and found there was not sufficient evidence to remove the knee injury from the schedule. The Court of Appeals stated that the decision comes down to a question of medical causation: Is there substantial evidence that the effects of the injury to the scheduled member extends to other body parts and that those effects cause or contribute to pain, limitations, or other symptoms in those body parts.Boise Cascade Corp. v. Jackson. The Court of Appeals acknowledged that medical testimony was not required to prove medical causation on the issue of the injury affecting or extending to non-scheduled body parts. The Court of Appeals also pointed out that medical causation could be established on this issue based lay testimony and/or observations of the trial court. However, in this case the Court of Appeals found that the medical testimony established that the knee injury did not extend into other body parts and the fact that the doctor gave a rating to the body as a whole did not mean the schedule could be avoided.Ex parte Drummond Co. (Alabama Supreme Court specifically stated an impairment rating to the body as a whole does not remove an injury from the schedule). The Court of Appeals noted that the doctor testified that the restrictions issued were for the right knee only. Since the medical testimony did not support removing the injury from the schedule the Court of Appeals next examined the lay testimony. The Court of Appeals pointed out that the trial court can find medical causation without direct expert medical testimony, so long the other evidence, lay and circumstantial, is sufficient to support that finding. The Court of Appeals stated that this is to be determined on a case-by-case basis. The Court of Appeals ruled that, in this case, the lay testimony actually established that the knee injury did not affect other parts of the employee's body and that the knee injury had not worsened the preexisting back injury. The employee himself testified that the knee injury did not affect other body parts or worsen his back condition. The Court of Appeals next addressed the trial court's observations, which it used to support its decision. The Court of Appeals pointed out that case law does allow a trial court to consider its own observations when determining extent of disability, to include how the employee ambulates during trial. However, the Court of Appeals stated that nothing in the case law allows the trial court to make a finding of medical causation solely on its own observations without any other supporting evidence, much less when the finding is disputed by other evidence as it was in this case. The Court of Appeals stated "a trial court may not rest a finding on speculation or conjecture, even if arising from its observations, that contradicts the positive evidence in the record." Finally, the employee argued the Court of Appeals should reconsider its holding that vocational evidence cannot be used to circumvent the schedule. The Court of Appeals stated that this court has applied in past case the rule, which was issued by the Supreme Court in Ex parte Drummond Co., that a trial court cannot consider vocational disability as a factor in determining the exclusivity of the schedule. Therefore, the trial court's ruling that the employee is permanently and totally disabled cannot be supported by the employee's inability to return to his former job as a result of the scheduled knee injury. My Two Cents The Court of Appeals again established that this is not a chicken or egg situation, since you must first establish that an injury is removed from the schedule before evidence of vocational loss can be considered. As a result, simply not being able to return to work is not an exception to the list of scheduled injuries. ----------------------------------------------- ABOUT THE AUTHOR The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers' compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers' Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers' compensation and related employer liability fields.