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November 24th, 2014
workers compensation
TOTAL VOCATIONAL DISABILITY IS NOT AN EXCEPTION FOR AWARDING BENEFITS OUTSIDE THE SCHEDULE

In Goodyear Tire & Rubber Co. v. Bush, the Alabama Civil Appeals Court held that the trial court erred in concluding that the employee was permanently and totally disabled under the Act, Ala. Code § 25-5-57(a)(4)(d), because it used the vocational disability of the employee as the basis for the compensation award without first deciding that an exception to the schedule applied.” 2014 Ala. Civ. App. LEXIS 153 (Ala. Civ. App. Aug. 22, 2014).

The employee in that case, an automobile mechanic, sustained an injury to his right knee while at work. He received medical treatment from his authorized treating physicians, and after reaching maximum medical improvement, it was “determined that the right-knee injury had limited the employee to working light-duty jobs requiring no stooping, squatting, kneeling, climbing, or lifting over 20 pounds.” Bush, at 12. Unfortunately, those restrictions prevented the employee from returning to his prior position at Goodyear as a mechanic. At trial, the employee testified that he had worked as a mechanic for over 40 years, had no other transferrable skills, and, based upon “the testimony of a vocational expert retained by the employee, the trial court concluded that the employee was permanently and totally disabled” under the Workers’ Compensation Act due to his inability to find gainful employment. Id. (quoting Ala. Code § 25-5-57(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”).

As such, the trial court awarded the employee permanent-total disability benefits over the arguments of the employer that benefits were to be limited to those set out in “the schedule.” Id. at 12-13. The trial court did so based upon the holding in Werner Co. v. Williams, 871 So. 2d 845 (Ala. Civ. App. 2003), where the Alabama Court of Civil appeals “implied that, if a court finds that an employee has sustained a permanent total vocational disability, the schedule would not apply to limit his or her compensation because the schedule applies solely to permanent partial disabilities.” 871 So. 2d at 855. However, that ruling had since been overturned, and the Court of Civil Appeals stated that in order for a trial court to award benefits outside of the schedule they “must first determine whether the permanent injury to the scheduled member extends to and interferes with other nonscheduled parts of the employee's body. If the injury to the scheduled member does not extend to other parts of the employee's body, then the injury is classified as a matter of law as a permanent partial disability and the schedule . . . governs the amount of compensation . . . without consideration of any vocational disability.” Advantage Sales of Alabama, Inc. v. Clemons, 36 So. 3d 517 (Ala. Civ. App. 2008).

At the time of this ruling, there were only two recognized exceptions allowing an employee to seek benefits out of the schedule. The first was “if the effects of the injury extend to other parts of the body and interfere with their efficiency” and the second was “if the pain from the injury, although isolated in the injured member, totally, or virtually totally, debilitates the employee.” Bush, at 14. These are more commonly known as the Drummand and Graben exceptions, named for the cases in which the exceptions were created.

In the instant case, the Court clarified that there was not a third exception to the general rule. They did so by expressly stating that a “permanent injury to a scheduled member cannot be treated as nonscheduled solely on the basis of a permanent total vocational disability.” Id. (emphasis added). In order for vocational disability evidence to impact an award of benefits for a scheduled member, the employee must first show that their injury fits into one of the two exceptions noted above. Id.

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