TRIAL COURT DECISION TO REMOVE LEFT HAND INJURY FROM SCHEDULE IS REVERSED
G.UB.MK Constructors v. Howard Lee Davis:
On March 19, 2010, the Alabama Court of Civil Appeals released this opinion wherein it reversed the trial court’s decision to remove a hand injury from the schedule. Specifically, the trial court opted to treat the injury as a body as a whole injury because the employee experienced sever pain which extended up his arm and into his shoulder, neck and upper back and effected his ability to perform the duties of his former job. The trial court additionally found that the employee suffered debilitating pain which it recognized as another reason for removing the injury from the schedule.
On appeal, the Court noted that the Drummond test for removing injuries from the schedule states "if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive." It was further noted that the key consideration for said test was not whether the effects of the injury impair the ability of the worker to work in his or her former occupation. Although the employee testified at trial that the efficiency of other parts of his body had been effected, his testimony was not supported by medical records, FCE results, or any expert testimony. Further, the Court held that, even if the effects of the hand injury extended to the other areas of the body as stated by the employee, the record contained no evidence that said effects hindered or impeded the effective functioning of those areas of the employee’s body. As such, the Court reversed the trial court’s decision to remove the injury from the schedule based on the Drummond test.
The Court also noted that pain, in and of itself, can qualify as a reason for removing an injury from the schedule. In this case, the trial court held that the employee had "debilitating" pain. However, the Court noted that the employee must establish that his pain is "totally, or virtually totally, physically disabling" in order for the pain exception to apply. As such the trial court’s decision to remove the injury from the schedule based on pain was also reversed.