In BISCO Refractories, Inc. v. Wesley Dean, the Alabama Court of Civil Appeals reversed a trial court’s finding of permanent total disability (PTD) for an employee who sustained serious back and heel injuries in a workplace fall.

A functional-capacity evaluation (“FCE”) performed by occupational therapist David Bledsoe concluded that he could fully perform sedentary and light-duty work and partially perform medium-duty work. Bledsoe testified that Dean could not return to his heavy-duty brick mason job.

After reaching maximum medical improvement, Dean returned to brick-mason work in a reduced capacity in 2019 and 2020. During layoffs, he applied for unemployment-compensation benefits and represented that he was physically able to work full-time. In 2021 and 2022, he worked as a forklift operator for Wal-Mart, earning nearly $40,000 in 2022. In 2023, he resumed part-time brick-mason work through his union.

The court emphasized that under Alabama law, PTD requires not only an inability to return to one’s prior trade, but also an inability to obtain any gainful employment. Here, the employee’s post-injury work history, along with his own representations in unemployment applications that he was able to work, directly contradicted a finding of total disability. It should be noted that there was no evidence that the work he was doing was sheltered employment. While the employee reported ongoing pain, there was no evidence that his condition had worsened to the point that he could no longer work within the FCE limitations.

The key takeaway is that evidence of sustained, gainful post-injury work—even if part-time or in a different capacity—can defeat a PTD claim.