Alabama Workers' Comp Blawg

  • 20
  • Feb
  • 2009

PERMANENT AND TOTAL AWARD FOR LEG INJURY REVERSED

Norandal U.S.A., Inc. v. Welton Graben:

On February 20, 2009, the Alabama Court of Civil Appeals released this opinion wherein it reversed and remanded the trial court’s decision to remove a leg injury from the schedule and award permanent and total benefits. At trial, the employee presented evidence of a compensable leg injury. Approximately 7 years after the work accident and 3 weeks after his most recent surgery, the employee’s knee gave way causing him to fall and injure his shoulder, hip and back. Although the fall happened while he was on a personal errand, injuries that are the direct and natural result of a compensable injury are themselves compensable. However, in such situations, the employee is still responsible for providing notice to the employer. The employee failed to do so and so he was precluded from recovering for any injuries related to the fall. Despite this fact, the trial judge still considered the employee’s pain and the back problems as caused by the employee’s altered gait. In considering this evidence, the trial judge found that the employee’s knee injury extended to other parts of the body and interfered with their efficiency. This was the basis for removing the injury from the schedule and assigning the employee permanent and total benefits. In reversing the trial court, the Court of Appeals noted that it was improper to consider the injuries that resulted from the fall. Further, while there was evidence at trial that the employee had an altered gait, there was no finding by the judge that the altered gait led to problems in other areas of the body. The Court also noted that while pain, on its own, can sometimes justify removing an injury from the schedule, the pain must be totally or virtually totally disabling. Although the trial court noted that the employees pain was chronic and debilitating, it did not make a finding that the pain was totally or virtually totally disabling.

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