PAIN EXCEPTION DOES NOT REMOVE CASE FROM SCHEDULED MEMBER PROVISIONS OF ALABAMA’S WORKERS’ COMPENSATION ACT
Gold Kist, Inc. vs. Smith
Circuit Court of Franklin County, Alabama (August 10, 2012)
The Alabama Court of Civil Appeals recently refused to remove an ankle injury from the scheduled member provisions of the workers’ compensation Act based on the “pain exception.”
The claimant, Delores Smith, injured her right ankle in a work-related accident on December 3, 2004. After a visit to the emergency room, the authorized treating physician, Dr. Edward Fisher, performed a surgical procedure on Smith’s right ankle. As part of the surgery, Dr. Fisher placed three screws and a plate in the ankle. Following the surgery, Smith continued to complain of pain in her toes, foot and leg.
Evidence presented at trial showed that Smith continued to complain to Dr. Fisher of trouble walking because her ankle became “aggravated” with excessive walking. Dr. Fisher suggested a second surgical procedure to remove the hardware in order to alleviate some of the pain. On February 24, 2006, Dr. Fisher performed a second surgery in which he removed the hardware from Smith’s right ankle. On March 16, 2006, Dr. Fisher released Smith to return to work without any restrictions.
Dr. Fisher placed Smith at maximum-medical improvement on May 30, 2006 and confirmed that she could return to work without any restrictions.
On October 12, 2006, Smith informed Dr. Fisher that she was having a pain in her back. Subsequently, Smith’s personal care physician referred her to Dr. David Longmire, a pain management physician.
After performing a nerve conduction study, Dr. Longmire felt that Smith suffered from allodynia, which is sensitivity to light touch. Also, Dr. Longmire felt that Smith suffered from mechanical allodynia, a gait disorder. Dr. Longmire based this on his observation of Smith walking in a way so as to limit any additional pain in her ankle by readjusting her weight. Dr. Longmire testified that he could not determine whether Smith’s condition was the result of problems with her back, her right ankle, or a combination of problems with the back and ankle. Smith claimed that the pain that she suffered from interfered with her ability to sleep, clean her home, visit with her grandchildren, and maintain employment.
Smith testified at trial that her pain was so severe that she could not maintain employment. She claimed that her pain interfered with her everyday activities because her foot felt heavy and constantly throbbed. Smith further testified that she had a strong pain tolerance and that she did not take pain medication until her pain got “too bad.” According to Smith, she only took medication “occasionally.”
The trial judge held that Smith was permanently and totally disabled. Gold Kist appealed.
The issue on appeal was whether the trial court erred in finding Smith permanently and totally disabled as a result of the injury to her ankle and awarding benefits outside the scheduled member provisions of the Act. Specifically, Gold Kist contended that the evidence presented to the trial court was insufficient to support any award of benefits outside the schedule based on the “pain exception.”
In reversing the decision of the trial court, the Court of Appeals cited to the “pain exception,” outlined in the case of Norandal U.S.A., Inc. v. Graben, 18 So. 3d 405 (Ala. Civ. App. 2009). The pain exception allows an employee to be compensated outside the schedule for an injury to a scheduled member. In Graben, the court held that a worker sustained a permanent injury to a scheduled member resulting in chronic pain that was “so severe that it virtually totally physically disables the worker.” Under these circumstances, the worker would not be limited to the benefits set out in the schedule.
In support of its decision to reverse the trial court, the Court of appeals cited to its recent opinion in Good Year Tire and Rubber Co. v. Haywood in which it stated:
“for pain in a scheduled member to be totally, or virtually totally,
debilitating to the body as a whole, that pain must be such that it
completely, or almost completely, prevents the worker from
engaging in physical activities with the uninjured parts of his or
The court stated that for an injury to a scheduled member to be compensated outside the schedule based on pain alone, the employee must present sufficient evidence to meet the “exceedingly high standard” required by the cases illustrating the “pain exception.”
In the present case, the Court of Appeals cited to Smith’s testimony that she only took her pain medications “occasionally” because she had a high pain tolerance. Smith further testified that she had the ability to walk and perform everyday activities with the use of a cane. After reviewing the record, the court could not conclude that substantial evidence supported the trial court’s finding that Smith was permanently and totally disabled as a result of the injury to her ankle. As such, the Court of Appeals held that the trial court erred in awarding permanent and total disability benefits to Smith outside the scheduled member provisions of the Act.
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