Based on recent decisions from the Alabama Supreme Court and Alabama Court of Civil Appeals, how do you use considerations of an injured worker’s pain to get beyond the severe restrictions of the table of scheduled members?
In order to get beyond the schedule, focus on proving that the employee’s pain within his scheduled member was virtually, or totally physically disabling. Look for evidence that you suffer from abnormal, constant, and severe pain, even when not using the affected member. Most importantly though, recent court decisions sugest that “a trial court must consider all legal evidence bearing on the existence, duration, intensity, and disabling effect of the pain in the scheduled member, including its own observations. It requires competent proof that whatever pain the worker experienced, completely, or almost completely, physically debilitated the worker. So, focus on the existence of pain, the duration of pain, the intensity of the pain and how the pain effects you. My thoughts are that the injured worker’s testimony is critical to establish this, but also, have other lay witnesses (spouse, close friend, co-worker) and expert witnesses (medical doctor, therapist, pharmacist, vocational expert with focus on pain) would be helpful in establishing existence; (the pain is there and it is real), duration; (for example, the pain reaches an 8 out of 10 three days per week and I have to take Lortab to help control the pain) intensity; (the pain is a shooting and burning pain that reaches 8 out of 10); and the disabling effect (when the pain reaches its highest levels, I cannot function.
Tracy W. Cary – www.bamacomp.com
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