ALABAMA SUPREME COURT ALTERS LANDSCAPE FOR RECEIVING UNSCHEDULED BENEFITS FOR SCHEDULED INJURY

ALABAMA SUPREME COURT ALTERS LANDSCAPE FOR
RECEIVING UNSCHEDULED BENEFITS FOR SCHEDULED INJURY

In Ex parte Hayes, 2011 Ala. LEXIS 35 (Ala. Mar. 18, 2011), the Alabama Supreme Court altered the landscape for receiving unscheduled benefits for a scheduled injury in a Workers’ Compensation Case. The test for awarding unscheduled benefits was established in Ex parte Drummond Co., 837 So. 2d 831 (Ala. 2002), which stated “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.” The Court in Hayes applied that test in a broader sense than prior courts.

In Hayes, the trial court awarded unscheduled benefits to a plaintiff who suffered a crush injury to his right foot, which is a scheduled member. The injury developed an infection, and required several debridements and ultimately reconstruction surgery. The plaintiff also suffered a congenital defect in his left foot, which he was able to compensate for prior to the injury with his right foot. After the injury, he was unable to balance, and fell frequently without a walker. He had difficulty standing more than one hour a day and often would have to sit lying down with his foot elevated.

The Court of Civil Appeals, based on its interpretation of the Drummond standard first stated in Boise Cascade Corp. v. Jackson, 997 So. 2d 1026 (Ala. Civ. App. 2007), reversed, holding that "Hayes has not established that his right-foot injury caused an injury to any particular nonscheduled part of his body." Vintage Pharms., LLC v. Hayes, 2007 Ala. Civ. App. LEXIS 607 (Ala. Civ. App. Sept. 14, 2007). Subsequently, however, the Alabama Supreme Court reversed the Boise Cascade Court’s interpretation of Drummond. In Ex parte Jackson, 997 So. 2d 1038 (Ala. 2007), the Alabama Supreme Court stated the Drummond test does not require an actual physical injury to an unscheduled member, but rather required only that the injury interfered with the efficiency of an unscheduled member.

In reviewing Hayes, the Supreme Court did not merely reverse and remand with instructions for the Court of Civil Appeals to decide the case based on the standard stated in Ex parte Jackson. Instead, the Supreme Court found that the evidence supported the trial court’s finding that the injury interfered with the unscheduled members of the plaintiff’s body and made it less efficient. Important in the Court’s decision was the evidence that the Plaintiffs balance was affected and that he had to elevate his leg at waist level or above throughout the day. The Court intimated that merely the use of a walker would be insufficient to take the case outside the Schedule, as the complete loss of a leg would also require some assistive walking device.

This case opens the door to unscheduled awards, even when the effects are generally limited to the scheduled member of the body. Plaintiffs will now be able to present evidence of a loss of balance, and the need to rest and elevate the leg, in order to establish the Drummond test. To counteract this, emphasis should be placed on evidence that the effects of the injury to the scheduled member are no worse than those experienced with the complete loss of that member.