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February 4th, 2013
workers compensation
CONSIDERATIONS IN DETERMINING WHETHER OR NOT A PLAINTIFF IS PERMANENT AND TOTALLY DISABLED
      When a trial court is asked to make a determination of whether an injured employee is permanently and totally disabled, the court should first turn to the definition of the term as set forth in Ala. Code (1975) § 25-5-27(a)(4)d: 
 

Any physical injury or mental impairment resulting from an accident, which injury or impairment permanently and totally incapacitates the employee from working at and being retrained for gainful employment, shall constitute prima facie evidence of permanent total disability but shall not constitute the sole basis on which an award of permanent total disability may be based. Any employee whose disability results from an injury or impairment and who shall have refused to undergo physical or vocational rehabilitation or to accept reasonable accommodation shall not be deemed permanently and totally disabled.

 

            The Alabama Court of Civil Appeals in Masterbrand Cabinets, Inc. v. Gilmore, 2012 Ala. Civ. App. LEXIS 145 (June 8, 2012), affirmed a trial court’s finding that a worker was permanently and totally disabled holding a worker can be determined to be permanently and totally disabled if his ability to find and engage in gainful employment is so limited that he cannot expect to consistently work due to pain and physical limitations resulting from a work-related injury. Recently, trial courts have interpreted the language from the Masterbrand decision as the standard for determining whether an employee is permanently and totally disabled.      

            Plaintiffs will often use the language in Masterbrand to promote the theory that an injured employee is permanently and totally disabled if he or she has, in fact, failed to obtain or perform suitable gainful employment following an on-the-job injury.   In promoting such arguments, plaintiffs contend that any jobs the injured employee may find are not compatible with the employee’s pre-injury occupation, age, education and aptitude and as such, do not qualify as suitable gainful employment.   

However, such arguments are incorrect interpretations of the law. In determining whether an employee is permanently and totally disabled, the trial court does not simply determine whether an employee has obtained or performed suitable gainful post-injury employment; rather it must determine whether the employee is capable of obtaining and performing suitable gainful employment. Landers v. Lowe’s Home Centers, Inc., 14 So. 3d 144 (Ala. Civ. App. 2007). In combating such arguments from injured employees, it is important to point out that while evidence of actual employment may be accepted as one factor relating to the employee’s ability to secure and perform suitable gainful employment; it does not conclusively establish the extent of the employee’s earning capacity. See Nashville Bridge Co. v. Honeycutt, 246 Ala. 319, 20 So. 2d 591 (1945).

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