Ability to perform physical activities erases benefits outside schedule

In Alabama, a worker's injury to a scheduled member can be compensated outside the schedule if the pain from the injury is "virtually totally" physically disabling.

Case name: Gold Kist, Inc. v. Smith, No. 2110274 (Ala. Civ. App. 08/10/12).

Ruling: The Alabama Court of Civil Appeals held that a worker was not entitled to benefits outside the schedule for her ankle injury.

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What it means: In Alabama, a worker's injury to a scheduled member can be compensated outside the schedule if the pain from the injury is "virtually totally" physically disabling.

Summary: A worker injured her ankle while working. She immediately visited the employer's nurse, who determined that she pulled ligaments. Her pain was so intense that she later went to the emergency room, where she learned that she fractured her ankle and required surgery. Following surgery, she continued to experience pain, so she underwent a second surgery. She still experienced pain and tenderness, and a doctor found she developed a gait disorder. The worker took pain medications only "occasionally," explaining that she had a "strong pain tolerance." The worker sought benefits. The Alabama Court of Civil Appeals held that she was not entitled to benefits outside the schedule.

A worker can receive benefits outside the schedule for an injury to a scheduled member if the pain from the injury is "virtually totally" physically disabling. The pain must be such that it completely, or almost completely, prevents the worker from engaging in physical activities with the uninjured parts of her body. The worker had four other jobs after leaving her employment with the employer, but she was unable to complete her job tasks. However, she also suffered back pain as a result of degenerative disk disease unrelated to her ankle injury.

She took pain medications "occasionally" and could walk with a cane. She did not have limitations regarding her upper extremities. The court said that she retained the ability to perform physical activities. The court could not conclude that she was permanently and totally disabled as a result of her ankle injury.

Read more at the WorkersComp Forum homepage.

October 11, 2012

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