The Alabama Supreme Court recently released Ex parte Thomas Hayes, ___ So. 3d ___ [Ms. No. 1070315, March 18, 2011] (Ala. 2011), a decision that provides practitioners with much-needed clarification for what the Court requires in order to have an injury to a scheduled body part compensated outside the schedule. Many lawyers will recognize that the “schedule” is a somewhat peculiar list of 33 body parts or combination of body parts with a corresponding number of weeks that compensation is paid to an injured worker (subject to the Draconian $220 per week maximum weekly benefit) for the loss of one or more of the listed body parts.
The schedule can be found in Ala. Code § 25-5-57(a)(3)a. There, the Legislature created (or more accurately borrowed from Minnesota) a system that provided for a range of compensation stretching from 11 weeks for losing a toe up to 400 weeks for losing both arms or both legs. The significance of an injury to a scheduled body part is that an injured worker is not permitted to obtain compensation greater than the enumerated number of weeks unless the injured worker finds a way to escape the restrictive schedule.
Of course, the Court started down this path nearly 10 years ago in Ex parte Drummond Co., 837 So. 2d 831 (Ala. 2002). In Drummond, the Court cited the then 30 year old “Bell” test found in Bell v. Driskill, 282 Ala. 640, 213 So. 2d 806 (1968). The Court waxed nostalgic in discussing the relic that Bell had become:
“[I]t was the intention of this Court in adopting in Bell the exception to the workers' compensation schedule to address those instances where the injury to a scheduled member caused such impairment to the body as a whole that the benefits reflected on the schedule were not appropriate. Specifically, the Bell test permitted an injury to a scheduled member to be compensated outside the schedule if the effect of the injury extends to other parts of the body and produces a greater or more prolonged incapacity than that which naturally results from the injury to the specific member.” Drummond, 837 So. 2d at 834.
The Supreme Court noted with alarm, however, that the Court of Civil Appeals had substantially expanded Bell to include the following as evidence that would take an injury outside the schedule: “(1) pain, swelling, and discoloration; (2) work restrictions; (3) impairment ratings to the body as a whole; and (4) vocational disabilities” … as well as (5) “the worker's ability to find future employment.”
The Drummond Court then indicated it was placing a renewed emphasis to the policy that underlay the Bell test as recognized in 4 Lex K. Larson, Larson's Workers' Compensation Law § 87.02 (2001):
"The great majority of modern decisions agree that, 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."
The Drummond Court went to explicitly overruled nine cases they cited “insofar as they expanded the Bell test.” Over the years since Drummond was decided, practitioners have watched as our appellate courts continued to shape and mold this area of the law. It has not been unlike a tennis match but in many cases, and many injured workers have felt like they were being used as the tennis ball. Trial courts would make decisions based on the holdings in post-Drummond cases, only to have the Court of Civil Appeals reverse those decisions. If the Court of Civil Appeals expanded the Bell test, it would be accurate to say that the Court of Civil Appeals contracted the test post-Drummond to the detriment of injured workers.
Whereas pre-Drummond, the Supreme Court noted at least five ways to escape the schedule, post-Drummond the cases appear to have settled on at least the following three exceptions at the current time: (1) a debilitating level of pain; (2) where the effects of the loss of the member extend to other parts of the body and interfere with their efficiency; and (3) psychiatric or mental injuries. All three of these exceptions were discussed in the recent decision of the Court of Civil Appeals in Caseco, LLC v. Dingman, ___ So. 3d ____ [Ms. 2090461, December 17, 2010) (Ala. Civ. App. 2010).
Meanwhile in the Supreme Court’s decision in Thomas, supra, the Court upheld a finding of permanent and total disability in for an injury to a worker’s foot. It is interesting to note that the trial court found the injured worker to be permanently and totally disabled, the Court of Civil Appeals reversed that judgment, finding the workers should not have been compensated outside the schedule, and the Supreme Court reversed that decision, finding the Court of Civil Appeals erred in concluding the injury was limited to the schedule. In so finding, the Court noted that the injured worker’s foot injury impeded the effective functioning of the remainder of his body. Id., supra, slip op. at 14. This decision provides practitioners with guidance for what they Court requires in taking and injury to a scheduled body part outside the schedule. The Thomas decision also illustrates the importance of a well-written order at the trial court level containing findings of fact and conclusions of law which makes it more likely that a good result at the trial court level will be upheld on appeal. Workers’ compensation practitioners would be well served to stay current with this seemingly ever-changing area of the law.