Alabama Workers' Comp Blawg

  • 13
  • Dec
  • 2010

Pain Must Reach Disabling Levels To Move Injury Outside of Schedule

 On Friday the Alabama Court of Civil Appeals released an opinion concerning a workers’ compensation case involving an employee who had injured her foot and claimed that, due to the foot pain she continually suffered from the injury, it should not be confined to the schedule. The defendant asserted that they should not be held liable to the plaintiff as she had been working for a subsequent employer, which aggravated her injury, and the second employer should be held liable under the last injurious exposure rule. The trial court agreed with the plaintiff’s argument and did not limit her to the schedule and held that the defendant was liable for workers’ compensation benefits to the employee. The Court of Civil Appeals reversed the trial court because the claimed foot pain did not arise to the level necessary to take an otherwise scheduled member out of the schedule.

In Alabama, for pain to be the sole reason for removing an otherwise scheduled member out of the schedule, it must be so severe that it is either totally or virtually totally disabling.  This is known as the Graben test.  In this case, the plaintiff did suffer chronic pain but it was only moderately severe. When the plaintiff took pain medication, she rated her pain as low as a 2 or 3 on a 10-point scale. The plaintiff also continued to work at least 32 hours a week at the time of the trial.  In regards to liability between the employers, the Court affirmed the trial court as the plaintiff had been in continuous pain since her injury to until the date of trial and there was no evidence of a new injury while she was working at the second employer. As such, the evidence supported the trial court’s holding that the plaintiff’s injury was a recurrence or a continuation of her original injury. The Court also remanded the matter back to the trial court for consideration of the plaintiff’s claim that she incurred back pain as the result of the “altered gait” caused by her foot injury.  On remand, the trial court will be able to, again, order that the foot not be limited to the schedule if it finds that her foot injury extended into and permanently affected the efficiency of her back.

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