Scheduled Member Injuries And The Pain Exception

Scheduled member, what is that? Alabama’s Workers’ Compensation Act contains a list of certain body parts. If you permanently injure one of these specific body parts in a work-related accident, your compensation is limited. In my opinion, it is severely limited in a manner that can be unjust. These listings do not consider the true impact of the disability on your ability to work.

If this sounds complicated, that’s because it often is. Thankfully, many common injuries, such as those to the back, neck, head, shoulder, and hip, are NOT scheduled member injuries. They are treated differently, often allowing the trial court to consider the impact of the disability on the worker’s problems returning to a job. But, that’s a separate topic.

Let’s go back to the scheduled member discussion. Whether or not an injury is limited in compensation as a scheduled member (listed body part) is often a very important question. Often, compensation is greater for injuries that are NOT listed.

So, when does an injury to a scheduled body part go outside the scheduled member provisions? The workers’ compensation carrier would have you believe this never happens. But, that is not true. One way that a scheduled member injury goes outside the listings is if it impairs or limits other body parts that are not listed. An example would be an injury to the leg (which is listed) that causes you to limp and results in further disability to your lower back (which is not listed). People who suffer problems walking due to a leg or foot injury can often end up having back problems. If this is the case, report these problems to the doctor so that they are documented. An injury that limits other body parts is an important topic but one for another day.

What if you suffer a permanent injury to a listed body part that causes you chronic pain? Does that remove the injury from the scheduled member provisions, allowing greater compensation? The chronic pain issue is one that our courts have struggled to evaluate.

In Goodyear Tire & Rubber Company v. Haygood, Alabama’s Court of Civil Appeals again attempted to evaluate the pain exception to the scheduled member provisions of our workers’ compensation laws. Again, if this sounds complicated, that’s because it often is. Haygood is a lengthy case — the attorney for the insurance carrier fought hard to keep the injured worker from being fully compensated outside the scheduled member provisions. The truth is that too many lawyers advertise for personal injury and workers’ compensation cases when they either don’t understand the law or don’t want to fight for their clients. The result is injustice. In Haygood, the worker’s lawyer understood these issues and helped his client achieve a fair result.

Here is what the Alabama Court of Civil Appeals said about chronic pain and the scheduled member provisions of Alabama’s workers’ compensation laws:

for pain in a scheduled member to be totally, or virtually totally, debilitating to the body as a whole, that pain must be such that it completely, or almost completely, prevents the worker from engaging in physical activities with the uninjured parts of his or her body.

As you can see, the chronic pain exception is very limited. You must suffer pain so severe that you are really totally disabled or incapacitated. If the carrier offers you a settlement for a scheduled member injury but you are limited in other body parts as well or you suffer disabling chronic pain, my advice is to talk out the issues with a skilled workers’ compensation attorney before accepting any offered settlement.

 

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