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Based on recent decisions from the Alabama Supreme Court and Alabama Court of Civil Appeals, how do you use considerations of an injured worker’s pain to get beyond the severe restrictions of the table of scheduled members?

In order to get beyond the schedule, focus on proving that the employee’s pain within his scheduled member was virtually, or totally physically disabling. Look for evidence that you suffer from abnormal, constant, and severe pain, even when not using the affected member. Most importantly though, recent court decisions sugest that “a trial court must consider all legal evidence bearing on the existence, duration, intensity, and disabling effect of the pain in the scheduled member, including its own observations. It requires competent proof that whatever pain the worker experienced, completely, or almost completely, physically debilitated the worker. So, focus on the existence of pain, the duration of pain, the intensity of the pain and how the pain effects you. My thoughts are that the injured worker's testimony is critical to establish this, but also, have other lay witnesses (spouse, close friend, co-worker) and expert witnesses (medical doctor, therapist, pharmacist, vocational expert with focus on pain) would be helpful in establishing existence; (the pain is there and it is real), duration; (for example, the pain reaches an 8 out of 10 three days per week and I have to take Lortab to help control the pain) intensity; (the pain is a shooting and burning pain that reaches 8 out of 10); and the disabling effect (when the pain reaches its highest levels, I cannot function.

Tracy W. Cary

What do you do if you didn’t file suit within two years of the date of your accident (or two years from the date you were paid compensation)? The Court of Civil Appeals recently decided a case that says that if an injured worker was taken back to work on light duty and not really able to earn full pay for the less than full duty job they were duty, this can extend the statute of limitations. There are three elements to consider: (1) ‘the employer was aware, or should have been aware, that such payments were compensation,’ (2) ‘the payments had the effect of recognition of the [worker’s] claim,’ and (3) ‘the evidence indicates that the employer paid for more than he received.’” Jackson v. Delphi Automotive Systems, _So. 3d., (Ala. Civ. App. 2010). 2010 WL 58266, 2010 Ala. Civ. App. LEXIS 3, January 8, 2010.

If you've read my blog entry regarding the Top Ten list of things that need to be changed about the Alabama Workers' Compensation Act, you've seen the problem with "scheduled injuries." Scheduled injuries are listed in Ala. Code § 25-5-57(a)(3). "The schedule" contains a list of various body parts that can be injured on the job with a corresponding number of weeks compensation a worker can receive for injuries to those body parts. Practically every part of the body that could be injured on the job is found in the schedule with the exception of injuries to the head, neck, shoulders, back, hips and psychological injuries.

To illustrate how limited the schedule is, I'll list few examples:

  • For the loss of a fourth finger, commonly called the little finger, 16 weeks.
  • For the loss of a great toe, 32 weeks.
  • For the loss of an eye, 124 weeks.
  • For the loss of an arm, 222 weeks.

In other words, if you have an accident at work and one of these body parts is chopped off, you'll receive no more than the number of weeks compensation listed in the schedule.

Why is this important?
It's important because activists on the court masquerading as conservatives keep changing the law. A little background is helpful. The Alabama Workers' Compensation Act is extremely limited it the benefits it provides to injured workers. When an injured worker has a permanent injury, the permanent injury can be expressed as an impairment to the specific body part or alternatively to the whole person. The monetary value of expressing permanent injury using either method can be calculated by using a formula found in the law. As opposed to the limited number of weeks set out in the few examples listed above, workers with permanent injuries to the whole body generally receive compensation for 300 weeks instead of 16, 32, 124 or 222, etc. For many years, workers' compensation practitioners would do the math using the scheduled injury and compare it to the compensation due the worker for a whole person injury and the case could be concluded at the higher (but still very limited) amount.
The activist Supreme Court changed all this in 2002 with its decision in Ex parte Drummond Co., 837 So. 2d 831 (Ala. 2002). In the Drummond decision, the Court decided it would place a renewed emphasis on the schedule such that when a worker injured a body part found in the list of body parts listed in the schedule, the worker would be paid the number of weeks compensation found in the schedule, and no more (with very limited exceptions which are discussed below).

Why does this matter?
It matters because the court concluded that if a worker with a limited education who has worked his entire adult life as a mechanic by using his hands should be unfortunate enough to have an accident and lose the ability to ever work again with his hands in a repetitive manner, he will be limited to 400 weeks compensation even though he is for all practical purposes permanently and total disabled. You can read about this flawed decision in Ala. Workmen's Comp. Self-Insurers Guar. Ass'n v. Wilson, 993 So. 2d 451 (Ala. Civ. App. 2006).

Drummond Exceptions
In the Drummond decision, the Court created an exception to allow an injured worker to show that he or she may not be limited to the number of weeks compensation found in the schedule. The Court said that if the injury to the scheduled body part spread to other parts of the body and interfered with their efficiency, OR if the injury resulted in debilitating pain, the schedule was not exclusive. The Court even wrote in Drummond, "We recognize that pain can be totally, or virtually totally, debilitating." I have represented a great many injured workers who suffered debilitating pain as a result of their injury at work.

NOW WHAT?!
In what can only be fairly characterized as a moving target, the Court keeps changing the definition to make it harder for injured workers to recover. In a concurring opinion that is so draconian that it's hard to fathom, a current member of the Alabama Court of Civil Appeals wants the Supreme Court to declare that the pain exception does not exist! (In other words, legislate from the bench, change the law, be an activist).

If you think I'm making it up, check this out:
Norandal U.S.A., Inc. v. Graben, 2010 Ala. Civ. App. LEXIS 71 (Ala. Civ. App. Mar. 12, 2010)
Judge Terry Moore wrote the following:

In my opinion, using severe pain as a basis for deviating from the schedule totally undermines the legislative purpose of the schedule. By enacting a schedule, the legislature plainly intended to eliminate litigation regarding the benefits due a worker who sustains an injury to a scheduled member. The legislature envisioned that the benefits for injuries to a knee, for example, would be easily calculable and payable by reference solely to the schedule and without resort to administration by the courts. That purpose is thwarted when a totally subjective variable such as pain enters the calculus. That criteria, being almost impossible to demonstrate by objective proof, renders the schedule totally [*26] inconclusive and demands administration of the claim by the court system to determine if the nature, duration, and intensity of the pain sufficiently justifies a departure from the schedule. In this case alone, for example, the trial court has twice awarded nonscheduled benefits based on the employee's complaints of pain in the knee, only to twice have this court reverse that decision. That entire exercise with its associated costs and delays would have been avoided if the schedule remedy was completely respected and severe debilitating pain was not considered an exception to its exclusivity.

I urge the supreme court to revisit the "pain exception" to the schedule and to declare that it does not exist. Until it does, however, as a member of this court, I will continue to acknowledge that, in the very limited circumstances set out in the main opinion, totally or virtually totally debilitating pain isolated in a scheduled member is sufficient to warrant an award of nonscheduled benefits.

What to do?
I have a few suggestions. First, contact your legislators and make them aware of this unbelievable situation. Second, I recommend that whether you're a Democrat or a Republican voter, don't vote for anyone who concurred with this activist way of legislating from the bench. It's simply not the role of judges to change the law to suit their own biases.

Finally, if you unfortunate enough to have a work-related injury that resulted in debilitating pain, make sure you hire a competent workers' compensation lawyer to help you traverse the maze that exists in our law. Because our courts keep changing the definitions as they go, you'll need to be careful that you don't lose valuable rights.

Conclusion

German Prime Minister Otto von Bismarck is credited with saying that “People who enjoy eating sausage and obey the law should not watch either being made.” Sometimes the compromise inherent in politics can produce less than perfect results. The same is true in the area of workers’ compensation law. Often when advocates for workers suggest modest changes to the law, they are met with proposed changes that would strip away even the limited rights that currently exist. An example of legislative compromise in this area illustrates the point. It is a felony to make a fraudulent claim for workers’ compensation benefits. Ala. Code § 13A-11-124 provides that “[a]ny person who makes or causes to be made any knowingly false or fraudulent material statement or material representation for the purpose of obtaining compensation, as defined in Section 25-5-1(1), as amended, for himself or herself or any other person is guilty of a class C felony.” The original bill on this topic would have provided in essence that anyone who made false or fraudulent statements having anything to do with claims for workers’ compensation benefits is guilty of a felony. The original bill would have covered not just employees, but also employers, insurance adjusters, doctors, therapist, attorneys, rehab nurses, vocational experts, etc. In the compromise that resulted in our current law, only employees are covered.

Clearly, the current Workers’ Compensation Act provides far superior benefits for injured workers than what was available to our workforce 85 years ago. However, the workers in this State deserve our continued efforts at obtaining legislative changes to those areas of the Act that are outdated, unfair or otherwise fail to adequately protect injured workers. Perhaps it all depends on whose ox is gored. Attorneys who represent injured workers are the only voice for those workers and we need to try to make a difference and improve our clients’ position.

Alabama still struggles to overcome a national reputation for being slow to change and for being anything but progressive. However, Alabama is one of the top five states for doing business, in large part because of our quality workforce. Plant Sites and Parks Magazine, as cited by an Alabama Development Office news release. It is time for the Alabama Workers’ Compensation Act to be amended in order that the law accomplish its beneficent purposes. In doing so, Alabama could come closer to meeting the stated goals of the Act by providing better job opportunities and increased employment for people in this State and by taking adequate care of the workforce that continues to make Alabama’s economy capture the attention of the rest of the nation. www.southern.org; and Ala. Code § 25-5-14.

Ala. Code § 25-5-68(a) provides that “the maximum compensation payable for permanent partial disability shall be no more than the lesser of $220.00 per week or 100 percent of the average weekly wage.” The “220 cap” on permanent partial disability benefits became effective January 9, 1985.

1985 was the year the late Ronald W. Reagan was inaugurated for a second term as President of the United States. It was also the year that Mikhail Gorbachev become the Soviet Union’s leader, that the sunken Titanic was located; that Nintendo entered the home video game market; that 20 percent of U.S. homeowners had VCRs in their homes; that Microsoft shipped the Windows 1.0 operating system; and that the typical modem speed was 2400 bits/second.

1985 was also the year the Alabama Supreme Court decided Ex parte Beaver Valley Corp., 477 So. 2d 408, 411 (Ala. 1985), in which the Supreme Court held that an employer is not required to pay for graduate school in order to retrain an injured worker. Not a single justice who participated in that decision, (which has been cited 45 times for one proposition or another), remains on the Alabama Supreme Court today.

Yet, the cap on permanent partial disability benefits that was fixed in the law in 1985 at $220.00 per week still applies today. It would have required $376.18 last year to have the same purchasing power as $220 did in 1985. Accordingly, the $220 cap is at least 42 percent too low and it is getting lower each year. In contrast, each July, the Department of Industrial Relations announces the maximum and minimum rates of temporary total disability benefits. For injuries occurring on and after July 1, 2004, the maximum workers’ compensation payable will be $607.00 per week, and the minimum compensation will be $167.00 per week. At the current rate of annual increase, the minimum compensation rate of temporary total disability benefits will exceed the maximum compensation payable for permanent partial disability in just 10 years . Even the rate at which injured workers are reimbursed for mileage costs a they drive to and from medical providers has increased from 25 cents per mile in 1992 to 37.5 cents per mile today.

This oddity in the law produces strange results in some cases. For example, a worker earning minimum wage would not penalized by the $220 cap ($5.15 per hours at 40 hours = $206.00), but a worker who earned more than $8.25 per hour for 40 hours would be effected by the cap. In a time in which our State is attracting more and more higher paying jobs, this cap is even more unfair than it has ever been. The $220 cap can cause a worker who suffers a severe injury on the job to be forced to file bankruptcy.

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