The Pain Exception to a Scheduled Injury is Exceptionally High
On August 19, 2011 the Alabama Court of Civil Appeals released its second opinion in the matter styled G.UB.MK Constructors v. Davis, which was previously remanded to the trial court on March 19, 2010 (See March 23, 2010 blawg entry). On remand the trial court was instructed to address whether the employee presented evidence of enough pain to take the hand injury outside of the scheduled under the Graben test (See March 18, 2010 blawg entry).
The Court of Civil Appeals noted that, according to the Graben test, the pain must be totally or virtually totally disabling in order to qualify as an exception to the schedule. This means the pain must be such that it completely, or almost completely, prevents the worker from engaging in physical activities with the uninjured parts of his body. The Court found that evidence showing that the pain interferes with the employee’s activities and is throbbing, aching pain at a level of 8 out of 10 was not enough. The Court noted that the employee testified that he was able to perform his job with the restriction that he not use his left hand. The employee was still performing this job at the time of the trial. There was no testimony that the pain in the left hand prevented him from otherwise fully using the uninjured parts of his body, including his dominant right hand.
Therefore, the Court held that evidence of severe, unremitting pain in the scheduled member does not meet the standard of totally or virtually totally debilitating to the body as a whole.