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October 24th, 2012
workers compensation
RECENT CASE CLARIFIES THE WORKERS’ COMPENSATION “DEBILITATING PAIN” EXCEPTION

On August 10, 2012, the Alabama Court of Civil Appeals released an opinion in Gold Kist v. Smith, 2012 Ala. Civ. App. LEXIS 220, clarifying the “debilitating pain” exception. In Gold Kist, the plaintiff suffered a severe ankle injury which arose in the line and scope of her employment. Following surgery and a period of recovery, the plaintiff returned to work and continued to work for more than one year. The plaintiff was found to be at maximum medical improvement approximately two years following her on-the-job accident. She continued to complain of ankle and low back pain at the time she was found to be at maximum medical improvement.

Plaintiff sought treatment by an unauthorized pain management specialist and was diagnosed with allodynea, which is a sensitivity to light touch. Plaintiff voluntarily quit her job with Gold Kist and subsequently worked for three different employers. Each period of employment with subsequent employers lasted only a short time. Plaintiff claimed she left each of her subsequent jobs because of alleged ankle pain.

At trial, the parties stipulated that plaintiff had fractured her right ankle and that the injury had arisen within the line and scope of her employment. Plaintiff testified she received treatment immediately following the injury at an on-site clinic. She ultimately underwent surgery by an authorized treating physician. The evidence at trial showed her authorized treating surgeon released her back to work without any restrictions. However, plaintiff testified she was returned to work with restrictions limiting her standing and walking and that, initially, Gold Kist provided her with a stool to allow her to rest but eventually the stool was taken away causing her to have to stand too long on her injured ankle. Plaintiff also testified she requested to be transferred to a different division within the company claiming that the work in the different division would be more in line with her limitations. Plaintiff testified further that her transfer request was never approved.

Ultimately, the plaintiff requested a panel-of-four physicians pursuant to § 25-5-77(a) Ala. Code (1975). Plaintiff testified at trial there was some issue with scheduling appointments with the second opinion physician. At the time her authorized treating physician placed the plaintiff at maximum medical improvement, he noted in the medical records there was only minimal tenderness around the surgical scars and that the plaintiff’s range of motion was normal. The medical records did indicate the plaintiff complained of “having trouble with her back” and was complaining “more about her ankle.” Plaintiff was referred by her primary care physician to a physician specializing in pain management and neurophysiology. The unauthorized pain management physician’s deposition was admitted into evidence at trial. She was diagnosed with a condition known as allodynea, which is sensitivity to light touch. Dr. David R. Longmire, the unauthorized physician, opined that allodynea can be extremely painful. Plaintiff testified she began using a walking cane following her treatment with Dr. Longmire and that her pain interfered with her ability to sleep, clean her home, visit with her grandchildren and maintain employment.

The trial court entered a judgment finding the plaintiff permanently and totally disabled. Gold Kist filed a Motion to Alter, Amend or Vacate the trial court’s judgment, arguing the trial court had erred in awarding the plaintiff compensation outside the schedule. The postjudgment motion was denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P. Gold Kist filed a Notice of Appeal to the Alabama Court of Civil Appeals. Gold Kist raised one issue on appeal which was whether the trial court erred in finding the plaintiff permanently and totally disabled as a result of the injury to her ankle and awarding benefits outside the schedule.

On appeal Gold Kist argued that the trial court erred in finding the plaintiff permanently and totally disabled because evidence presented at trial was insufficient to support any award of benefits outside the schedule based on the “pain exception.” In discussing the “pain exception”, the Alabama Court of Civil Appeals noted that “an injury to a scheduled member, such as the ankle, can be compensated outside the schedule if the pain from the injury ‘virtually totally physically disable[s]’ the employee.” The Court ruled that the “pain exception” did not apply and overruled the trial court’s finding because the undisputed evidence demonstrated that the plaintiff retained significant ability to perform physical activities. The court held that a plaintiff wishing to invoke the “pain exception” must meet an exceedingly high evidentiary standard in order for compensation to be awarded outside of the schedule. The case was reversed and remanded with instructions.

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