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September 12th, 2012
workers compensation
STRATEGY FOR DEFENDING A CLAIM FOR UNSCHEDULED BENEFITS UNDER THE GRABEN PAIN EXCEPTION

Under the Alabama Workers’ Compensation Act, injuries are divided between injuries compensated according to the schedule of benefits contained in Ala. Code § 25-57(a)(3) and injuries compensated outside of the schedule. Typically, compensation for scheduled injuries is less than compensation awarded outside of the schedule. More significantly, evidence of a vocational impairment has been deemed irrelevant to a claim for scheduled benefits, and scheduled injuries are not eligible for an award of permanent and total disability benefits under Ala. Code § 25-5-57(a)(4).

As such, it is often the strategy of a workers’ compensation claimant to attempt to remove their case from the schedule, in order to receive unscheduled benefits. The Alabama Supreme Court has created two avenues for a claimant to do so. The first, established by Ex parte Drummond Co., 837 So. 2d 831 (Ala. 2002), provides “if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive."

In Norandal U.S.A., Inc. v. Graben, 18 So. 3d 405 (Ala. 2009) (“Graben I”), the Court allowed a second exception to the schedule, and stated “pain that is totally, or virtually, totally disabling justifies an award of non scheduled benefits even if that pain is isolated to a scheduled member.” The Court of Civil Appeals expanded on this rule in Norandal U.S.A., Inc. v. Graben, 2010 Ala. Civ. App. LEXIS 71 (Ala. Civ. App. 2010) (“Graben II”) by requiring proof “that whatever pain the worker experiences completely, or almost completely, physically debilitates the worker.”

Since the Supreme Court enacted the pain exception, there has been only one (1) reported case where the Court of Civil Appeals or Supreme Court found that pain was sufficiently severe to bring the case outside of the schedule. In fact, even in Graben II, following the remand to the trial court to consider the pain exception, the Court of Civil Appeals found the evidence was insufficient to establish that the plaintiff’s pain was virtually, totally disabling.

In order to establish what is required to meet the pain exception, a comparison of two (2) recent cases, one (1) affirming and one (1) reversing the trial court’s decision to award unscheduled benefits based on pain is helpful.

In the case of Goodyear Tire & Rubber Co. v. Haygood, 2012 Ala. Civ. App. LEXIS 15 (Ala. Civ. App. 2012), the Court of Civil Appeals, for the first time since the Supreme Court enacted the rule in Graben I, found that the evidence presented at trial was sufficient to establish that the plaintiff’s pain in his left foot was severe enough to bring the case out of the schedule. In that case, the plaintiff suffered an injury to his left foot, and immediately felt a sensation like his foot was on fire. The plaintiff was subsequently diagnosed with complex regional pain syndrome (CRPS). At trial, the plaintiff testified that his right foot was in constant pain, even when he was lying down. He testified the pain causes him to lie down about 23 hours per day and that he often cried because of the pain he experienced. He often fell because of numbness in his foot. In addition, he testified he seldom left his house and in fact only left his house twice to go to Wal-Mart in the two (2) years following the injury. While at Wal-Mart, he testified he had to ride in a motorized cart. He consistently rated his pain as a 9 or 10 on scale of 1 to 10 and took pain medication three (3) times per day. The Court of Civil Appeals specifically found this evidence was sufficient to establish that “the effects of the pain alone are so severe that it virtually, totally physically disables the plaintiff.”

In contrast, in Gold Kist, Inc. v. Smith, 2012 Ala. Civ. App. LEXIS 220 (Ala. Civ. App 2012), the Court of Civil Appeals reversed the trial court’s award of unscheduled benefits on the basis of pain. Like Haygood, the plaintiff suffered a work related injury to her right foot. The plaintiff testified she had trouble performing everyday activities, including cleaning, sleeping, working, and visiting with her grandchildren. However, the plaintiff testified she had the ability to walk and she could perform most activities with the use of a cane, although she required occasional breaks. The Court further noted the record did not indicate the plaintiff had any limitations regarding the use of her upper extremities. The Court found that this was insufficient to establish that the plaintiff’s pain was virtually, totally disabling.

The decision in Gold Kist is consistent with the majority of the other pain decisions, wherein the Court routinely found that although the pain was severe, it was not virtually, totally disabling. Steinmart, Inc. v. Delashaw, 64 So. 3d 1101 (Ala. Civ. App. 2010) (holding that evidence was not sufficient to establish the pain exception where pain is reduced to a 2 or 3 on 10 point scale with pain medication). G.UB.MK Construction v. Davis, 78 So. 3d 998 (Ala. Civ. App. 2011) (finding that evidence was not sufficient to establish the pain exception where the plaintiff did not testify the pain from his left hand prevents him from fully using the uninjured parts of his body including his dominant right hand.) Graben II supra (finding that the plaintiff did not establish the pain exception where “the pain does not completely, or almost completely, prevent the employee from using his upper extremities, lifting light objects, driving, walking, climbing the stairs leading to his home, sitting, standing, occasionally fishing or travelling.”)

Based on the above cases, it appears that the pain exception in Alabama will be very limited, and awards of unscheduled benefits based solely on pain at the trial court level will be reversed in all but the most severe cases. Defense of pain cases will be bolstered by objective evidence, such as surveillance and performance on FCE’s. Plaintiffs will sometimes overstate their subjective pain complaints in depositions. However, the following question might be helpful in defending a claim for unscheduled benefits based on the pain exception.

1) Q: In the course of a typical day, how much time do you spend standing or walking? With or without an assistive device?
2) Q: In the course of a typical week, how often to you leave your house to run errands? Travel?
3) Q: Are you able to drive over short distances? Long distances?
4) Q: Do you have any limitations in using your [non-injured members] as a result of your pain?
5) Q: Is your pain lessened with inactivity? Pain medication? 
6) Q: Has your pain prevented you from engaging in any hobbies? Have you replaced those hobbies with others? 
7) Q: Do you have stairs at home? Are you able to climb the stairs?

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