Alabama Workers' Comp Blawg

Physical Injury to Other Body Parts not Necessary to Remove from Schedule

The Alabama Supreme Court released its opinion in Ex parte Thomas Hayes (In re: Vintage Pharmaceuticals, LLC v. Thomas Hayes) on March 18, 2011, holding that an injured worker will not be limited to the schedule when the effects of an injury extend to and interfere with the effective functioning of the remainder of the injured worker’s body.

The employee’s initial claimed injury was to his right heel. At trial, the evidence showed that he suffered a calcaneal fracture, and that a subsequent infection caused skin loss, severe pain, and loss of feeling in his heel. The employee alleged that he was permanently and totally disabled and testified that, as a result of the injury, he had to keep his right leg elevated the majority of the time, had to wear a calf-high hard brace on his right foot at all times, and experienced severe pain that was debilitating. He also presented evidence that he had a congenital birth defect in his left uninjured foot and that, due to the right foot injury, he was unable to compensate for the left foot. As a result, he suffered from poor balance and stability. Finally, he offered the testimony of a vocational expert who testified that, due to his severely altered gait, the fact that he had to use a cane to walk, and his obvious appearance of having a substantial physical disability, the employee was permanently and totally disabled. The employer argued that the employee was limited to recovery under the schedule as set forth in Alabama Code § 25-5-57(a)(3)(a).

The trial court agreed with the employee and treated his injury as to the body as a whole rather than as a scheduled member, and awarded permanent and total disability benefits. The employer appealed and the Alabama Court of Civil Appeals reversed, holding that the employee’s injury was limited to the schedule, relying on its previous ruling in Boise Cascade Corp. v. Jackson, 997 So. 2d 1026, 1036 (Ala. Civ. App. 2007). In the previous case of Ex parte Drummond Co., 837 So. 2d 831 (Ala. 2002), the Alabama Supreme Court held that, in order for an injury to a scheduled member to be compensated outside the schedule, there must be substantial evidence that the effects of the injury extend to other parts of the body and affect their efficiency. However, in Boise Cascade, the Alabama Civil Court of Appeals held that an employee who had sustained a foot injury could not recover non-scheduled disability benefits on the basis of back pain absent a showing that the foot injury caused a permanent physical injury to his back.

In its analysis, the Court of Appeals stated that the trial court erred by awarding compensation outside of the schedule because, although the employee showed that the effects of his injury extended to other parts of his body and affected their efficiency by affecting his balance and stability, he failed to show that his right foot injury actually caused an injury to any particular non-scheduled part of his body. However, after the Court of Appeals issued its opinion in Vintage Pharmaceuticals, LLC v. Hayes, the Supreme Court reversed the lower court’s decision in Boise Cascade. In Ex parte Jackson, 997 So. 2d 1038 (Ala. 2007), the Supreme Court explained that the test in Drummond does not require damage to the physical structure of other parts of the body in order to take an injury out of the schedule. The Supreme Court also pointed out that the facts of Hayes were substantially different from those in Drummond. It noted that in Drummond, the employee did not establish that the effects of his injury extended to other parts of the body based on testimony that his knee only swelled occasionally, the employee was assigned a 1% impairment, and had returned to work for almost a year after his knee surgery. It further noted that the employee’s injury had severely limited his ability to walk, and that he had been able to work prior to his injury, despite the congenital defect in his left foot. It also distinguished the two cases by noting that the employee had to use a cane or walker at all times, had fallen frequently, and had to sit or lie down frequently throughout the day with his foot elevated. By applying the facts of Hayes to the test set out in Drummond, the Supreme Court reversed the Court of Civil Appeals, holding that the effects of the employee’s foot injury extended to other parts of his body and affected their efficiency, and he was therefore entitled to compensation outside of the schedule.