Alabama Workers' Comp Blawg

Psych can be Pain Exception for Scheduled Injury

On December 17, 2010 the Court of Civil Appeals released its opinion in Caseco, LLC. v. Dingman. The Court of Civil Appeals addressed the Last-Injurious-Exposure Rule and a psychological issue, allowing a scheduled injury to be removed from the schedule.

I. Last Injurious Exposure Rule

At the trial Court level, it was shown that the employee suffered an ankle injury in 2001 and continued to have complaints of pain and several surgeries through 2009. Since the initial injury, the employee had worked for two different employers while treatment was continued from the initial 2001 injury. The Last-Injurious-Exposure Rule states that the carrier covering the risk at the most recent compensable injury bearing a causal relation to the disability bears the responsibility. In order to make this determination, the court has to decide if the second injury is a new injury, an aggravation of a prior injury, or a recurrence of an old injury. If the second injury does not contribute even slightly to the cause of disability, then it is deemed a recurrence. A recurrence is supported by continued complaints of symptoms indicating that the original condition persisted and that the second incident culminated in a second period of disability. The court will deem that its an aggravation and, therefore, a new injury if the second injury contributed independently to the final disability. The court in Caseco noted the following evidence indicating a recurrence instead of a new injury: continued complaints of pain throughout; and the authorized treating physician testifying that the injury with the original employer was the cause and not the employment with the two latter employer. The Court of Appeals said that this was sufficient evidence to show that the plaintiff suffered a recurrence and not a new injury.

II. Psych Avoiding the Pain Exception for Removal from the Schedule

At the trial level, the court indicated that the employee’s pain took the ankle injury out of the schedule; that a back problem related to the ankle took the injury out of the schedule; and that the psychological disorder took the ankle injury out of the schedule. The Court of Appeals only addressed the psychological issue and determined that it removed the injury from the schedule. Therefore, they did not address the trial court’s findings that the complaints of pain and/or the back problem took the injury out of the schedule.

The Court of Appeals stated that for a psychological injury to be compensable the injury only has to contribute to the psychological issue. In order to show that the on the job injury was a proximate contributing cause to the psychological injury, the evidence only has to show that the injury contributed to and/or exacerbated (a temporary flair up) any pre-existing psychological issues that the plaintiff may have been suffering from, as the result of a pre-existing condition or pre-existing pain. In the Caseco ruling, the Court of Appeals focused on the following testimony: physician testimony that chronic pain and depression go hand in hand; physician testimony that the ankle was a major contributing factor to the depression; physician’s testimony that the plaintiff would be devastated when he found out that his ankle injury would not allow him to return to work; plaintiff’s testimony that the pain led to his depression, along with the fact that his inability to work created marital and financial problems. The Court of Appeals stated that even if the marital and financial problems were causes to the depression, the psychological injury would still be compensable and remove the injury from the schedule, if evidence revealed that the pain was merely a contributing cause to the psychological problem. Because the Court of Appeals felt that sufficient evidence showed the pain was at least a contributing cause to the depression, the psychological problem would take the injury out of the schedule and, therefore, there was no need to show that the pain was totally and/or virtually totally disabling, which is required for pain alone to take an injury out of the schedule.