HIGH STANDARD FOR PAIN TO TAKE INJURY OUT OF SCHEDULE
Norandal U.S.A. Inc. v. Graben
This was the second time Norandal U.S.A. Inc. v. Graben came before the Court of Appeals. A summary of the previous holding is located in the Scheduled Injury section of this blawg.
The issues resulting in a second appearance before Court of Appeals were whether or not an altered gait or pain isolated in a scheduled member were sufficient to take the injury out of the schedule.
The Court dismissed the Trial Court’s ruling that the employer’s altered gait resulted in the injury falling outside the schedule due to the fact that the Trial Court altered its previous findings of fact. The Trial Court based its opinion on a change in case law. The Court of Appeals held that the Trial Court could not alter its findings of fact in order to issue a ruling that adheres to the new case law.
In regards to the issue of pain isolated in a scheduled member taking an injury outside the schedule, the Court of Appeals reaffirmed its previous holding. It stated that to adhere to the legislation and avoid uncertainty, a high standard must be used to find that pain isolated in a scheduled member takes the injury outside the schedule. The Court of Appeals reestablished the standard as pain that "virtually totally physically disables" the employee. They went on to state that the employee must provide competent proof that the pain completely, or almost completely, debilitates the employee. Moreover, the employee’s subjective complaints of pain must be considered and do not have to be supported by objective findings.
Judge Moore wrote a concurring opinion indicating that he does not agree that pain isolated to a scheduled member should result in an injury to the body as a whole. He stated that severe pain isolated to a scheduled member may justify finding that the employee sustained a total loss of use of the member. However, he opined that if pain is isolated to a member, it should not be treated as adversely affecting other parts of the body. Judge Moore stated that the Court of Appeals must follow the dicta indicated previously by the Supreme Court regarding the "pain exception"; however, he asked the Supreme Court to revisit the "pain exception" to the schedule and declare that it does not exist. In closing, he stated that until the Supreme Court does so, "I will continue to acknowledge that, in very limited circumstance set out in the main opinion, totally or virtually totally debilitating pain isolated in a scheduled member is sufficient to warrant an award of non-scheduled benefits."