CIRCUMVENTING THE SCHEDULE
Child Day Care Association v. Victoria Christesen:
In this opinion released on December 12, 2008, the Alabama Court of Civil Appeals upheld the trial court’s decision not to apply the §25-5-57(a)(3) schedule to a leg injury and assign a permanent and total award. The evidence at trial revealed that the plaintiff initially incurred an ankle injury. The plaintiff then sustained a knee injury during physical therapy. The plaintiff testified that she suffered debilitating pain and that the effect of her injury extended into her back. Her physician testified that the effects of the plaintiff’s ankle and knee injuries extended into her back thus affecting the efficiency of her back by limiting mobility and range of motion. In Ex Parte Drummond Co., 837 So.2d 831 (Ala. 2002), the Alabama Supreme Court stated that the schedule is not exclusive if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency. Applying the Drummond test to the evidence, the Court of Civil Appeals affirmed the trial court. The Court declined to address the issue of debilitating pain.
The schedule continues to erode away before our very eyes. What is the point of even having a schedule if the employee simply has to follow the Drummond blue print and claim that other parts of the body are somehow affected? The Court in this case did not even reach the issue of debilitating pain which is yet another means of circumventing the schedule. It makes it difficult to evaluate these cases and resolve them when the test is so dependent on the subjective complaints of the employee. There would be a lot less litigation if the courts used a strict application of the schedule.