Alabama Workers' Comp Blawg

  • 25
  • Jul
  • 2026

Alabama Court Reaffirms that Proving Permanent Total Disability Requires More than an Inability to Return to Prior Job

 

On February 27, 2026, the Alabama Court of Civil Appeals released BISCO Refractories, Inc. v. Dean. Like a few other recent opinions, it did not create new law or interpret prior law in a different manner.  Rather, it reinforced that proving an employee cannot return to his former job is only part of the permanent total disability analysis.

 

Under Ala. Code § 25-5-57(a)(4)d., an employee seeking permanent total disability benefits must not only prove he is incapable of returning to his prior trade, but he/she must also prove that he/she is not a candidate for vocational retraining.  

  

The Court concluded that the evidence did not support the finding of permanent total disability because the employee continued working after the accident.  Although he could no longer perform all of the duties of a brick mason, he returned to work in that trade, later worked as a forklift operator, earned substantial post-injury wages, and even represented in connection with unemployment benefits that he was able to work. The Court held that this undisputed evidence could not be ignored and reversed the trial court's PTD award.

  

The opinion also rejects the notion that subjective pain complaints alone establish permanent total disability. While the employee argued that his condition had deteriorated, the Court found no evidence that his ability to work within his permanent restrictions had materially changed. The functional capacity evaluation continued to support light-duty work, and the record contained no evidence that he was incapable of obtaining other gainful employment.

 

My Two Cents:

 

This is not a groundbreaking decision, but it is an important reminder that the Claimant has the burden of proving all aspects of a PTD claim.  The Employer does not have to prove that the Claimant is a candidate for vocational retraining but, rather, the Claimant must prove that he/she is not.

  

About the Author:

 

This article was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers and funds, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this article or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

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