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.
By Tracy W. Cary
Alabama Workers' Compensation Attorney
I have written for years about how harsh Alabama law can be when an employee gets hurt on the job and the injury is to a "scheduled" part of the body. Scheduled injuries are listed at Alabama Code § 25-5-57(a)(3). See, Table of Scheduled Members. Essentially the only parts of the body not listed in the schedule are the head, neck, back, hips and shoulders. According to recent decisions of the Alabama appeals courts (Alabama Court of Civil Appeals and Alabama Supreme Court), if an worker injures a scheduled part of the body, the worker generally cannot make a claim for vocational disability, even if the real effect of the injury would cause the employee to be permanently totally disabled. For example, think about a mechanic who lost the use of both his hands in an accident at work. The schedule says that the worker will be paid compensation up to 400 weeks, even though his life expectancy might be 2,000 weeks.
Alabama's appellate courts have carved out at least three exceptions to getting around the schedule: pain, psychological injury and extension of the injury to other parts of the body. However, the courts continue to whittle away at these exceptions, making them harder to apply. In a decision released in August 2011, the Alabama Court of Civil Appeals did just that.
With the release of G.UB.MK Constrs. v. Davis, 2011 Ala. Civ. App. LEXIS 220 (Ala. Civ. App. Aug. 19, 2011), the Court of Appeals reversed the trial court's finding of permanent and total disability. The trial court awarded an employee PTD benefits outside the compensation schedule set out in Ala. Code § 25-5-57(a)(3), based on the debilitating pain he was suffering from a work-related injury to his left hand. The employer appealed. As the employee did not testify that the pain in his left hand had virtually totally debilitated him or that pain from the left hand prevented him from fully using the uninjured parts of his body, including his dominant right hand, the trial court erred in awarding him PTD benefits under § 25-5-57(a)(4) instead of scheduled benefits under § 25-5-57(a)(3).
However, in a recent Alabama Supreme Court decision, the State's high court upheld a decision finding a worker 100 % disabled as a result of a scheduled foot injury. Ex parte Hayes, 2011 Ala. LEXIS 35 (Ala. Mar. 18, 2011). There, an injured worker was found to permanently totally disabled because the employee's right foot extended to and interfered with the effective functioning of the remainder of his body in a manner that satisfied the Drummond rule.
Do you have a injury to a "scheduled" body part? Consult with a lawyer who specializes in workers' compensation law before deciding what to do.
Senator Arthur Orr represents District 3 which consists of Limestone, Madison, Morgan Counties in northern Alabama. Sen. Orr has indicated he will be introducing a bill in the next legislative session to make changes to Alabama’s workers’ compensation law. He says the changes will help in job creation. The truth is, they will help insurance companies keep more of the premiums they collect.
These changes will apply to every Alabama worker who is unfortunate enough to be injured on the job.
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Many will remember “Liar Liar” the 1997 comedy starring Jim Carrey. In the movie, a lawyer lies to win his cases, at the expense of his family, career and self. Eventually he learns that honesty is the best policy. As the Proverbs tell us, “The Lord hates dishonest scales but accurate weights are His delight.” Prov. 11:1.
Perhaps a worker is afraid that if he tells the truth on his job application about a previous injury, he won’t hired. So he figure a little while lie won’t hurt. But will it?
What happens to an injured worker who lies on a job application and is later injured on the job?
Cascaden v. Winn-Dixie Montgomery, LLC, 2011 Ala. Civ. App. LEXIS 204 (Ala. Civ. App. Aug. 5, 2011) gives us the answer.
Alabama Code § 25-5-51 addresses misrepresentations in job applications:
“No compensation shall be allowed if, at the time of or in the course of entering into employment or at the time of receiving notice of the removal of conditions from a conditional offer of employment, the employee knowingly and falsely misrepresents in writing his or her physical or mental condition and the condition is aggravated or reinjured in an accident arising out of and in the course of his or her employment. At the time an employer makes an unconditional offer of employment or removes conditions previously placed on a conditional offer of employment, the employer shall provide the employee with the following written warning in bold type print, "Misrepresentations as to preexisting physical or mental conditions may void your workers' compensation benefits." If the employer defends on the ground that the injury arose in any or all of the last above stated ways, the burden of proof shall be on the employer to establish the defense.”
To understand what happened in the Cascaden case, first thing about how Alabama courts used to interpret the law. In the past, Alabama courts held that a misrepresentation of a preexisting medical problem only mattered if a worker injured that same body part again. For example, if a worker didn’t admit a previous back injury on a job application but later hurt his shoulder at work, the misrepresentation wouldn’t necessarily prevent the worker from receiving compensation for the shoulder injury. One of the reasons for the past decisions is that the employer wasn’t relying on the misrepresentation of the worker’s back problems to decide whether to hire the employee.
The recent Cascaden decision changes all that.
It is NO LONGER REQUIRED for an employer to prove it relied on the misrepresentation.
The Court of Civil Appeals held that it is not required that employers rely on the misrepresentation. Instead, for an employer to raise the defense under § 25-5-51, the employer must prove: that (1) in the course of the worker entering into his employment relationship with the employer, (2) the employer provided the worker with the written warning set forth in § 25-5-51, (3) the worker knowingly and falsely misrepresented his physical or mental condition, (4) the worker's misrepresentation was made in writing, and (5) the worker's condition was aggravated or reinjured in an accident arising out of and in the course of his employment.
Avoid this problem in advance by telling the truth! The truth is a simple insurance policy to prevent a misrepresentation defense.
Tracy W. Cary currently services as chair of the Alabama Association for Justice Workers’ Compensation Section. He earned his B.S. from the University of Florida and his J.D. from the University of Alabama. He is licensed to practice law in Alabama, Florida, Georgia, Tennessee and the District of Columbia. He practices with the Dothan firm of Morris, Cary, Andrews, Talmadge & Driggers, LLC. He is past chair of the Alabama State Bar Workers’ Compensation and has an extensive workers’ compensation practice throughout dozens of Alabama counties.