Injured Workers Hammered by Harsh Application of the Schedule

By Tracy W. Cary
Alabama Workers' Compensation Attorney

   

 I have written for years about how harsh Alabama law can be when an employee gets hurt on the job and the injury is to a "scheduled" part of the body.  Scheduled injuries are listed at Alabama Code § 25-5-57(a)(3).  See, Table of Scheduled Members.  Essentially the only parts of the body not listed in the schedule are the head, neck, back, hips and shoulders.   According to recent decisions of the Alabama appeals courts (Alabama Court of Civil Appeals and Alabama Supreme Court), if an worker injures a scheduled part of the body, the worker generally cannot make a claim for vocational disability, even if the real effect of the injury would cause the employee to be permanently totally disabled.  For example, think about a mechanic who lost the use of both his hands in an accident at work.  The schedule says that the worker will be paid compensation up to 400 weeks, even though his life expectancy might be 2,000 weeks. 

     Alabama's appellate courts have carved out at least three exceptions to getting around the schedule:  pain,  psychological injury and extension of the injury to other parts of the body.  However, the courts continue to whittle away at these exceptions, making them harder to apply.  In a decision released in August 2011, the Alabama Court of Civil Appeals did just that. 

     With the release of G.UB.MK Constrs. v. Davis, 2011 Ala. Civ. App. LEXIS 220 (Ala. Civ. App. Aug. 19, 2011), the Court of Appeals reversed the trial court's finding of permanent and total disability.  The trial court awarded an employee PTD benefits outside the compensation schedule set out in Ala. Code § 25-5-57(a)(3), based on the debilitating pain he was suffering from a work-related injury to his left hand. The employer appealed. As the employee did not testify that the pain in his left hand had virtually totally debilitated him or that pain from the left hand prevented him from fully using the uninjured parts of his body, including his dominant right hand, the trial court erred in awarding him PTD benefits under § 25-5-57(a)(4) instead of scheduled benefits under § 25-5-57(a)(3).  

However, in a recent Alabama Supreme Court decision, the State's high court upheld a decision finding a worker 100 % disabled as a result of a scheduled foot injury.  Ex parte Hayes, 2011 Ala. LEXIS 35 (Ala. Mar. 18, 2011).  There, an injured worker was found to permanently totally disabled because the employee's right foot extended to and interfered with the effective functioning of the remainder of his body in a manner that satisfied the Drummond rule.     

     

     Do you have a injury to a "scheduled" body part?  Consult with a lawyer who specializes in workers' compensation law before deciding what to do.   

Thinking about what to do?

Tracy W. Cary currently services as chair of the Alabama Association for Justice Workers’ Compensation section and has also served as chair of the Alabama State Bar Workers' Compensation section. He earned his B.S. from the University of Florida and his J.D. from the University of Alabama. He is licensed to practice law in Alabama, Florida, Georgia, Tennessee and the District of Columbia. He practices with the Dothan firm of Morris, Cary, Andrews, Talmadge & Driggers, LLC. He is past chair of the Alabama State Bar Workers’ Compensation and has an extensive workers’ compensation practice throughout dozens of Alabama counties. Email: tcary@mcatlaw.com.