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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I Told My Boss About My Injury — Is That Good Notice?

It is a familiar story. An injured worker calls my office. He tells me he was hurt on the job and that he told his supervisor about the injury. Now, weeks or months later, the workers’ compensation carrier won’t provide medical care. When he asks why, the insurance company tells him that he never reported the injury.

Alabama’s workers’ compensation law says that you must provide written notice of your accident to your employer. Our law also places time limits on that notice. While the Workers’ Compensation Act specifically requires written notice of the accident, our courts have ruled that “actual” notice is OK. What does this mean? It means that just telling your boss can be OK. However, it can also create problems for you.

Just telling your boss is a bad idea. Why? Supervisors often “forget” later that you told them of the accident. Maybe your boss really did forget. Maybe he just wants to save money by ignoring the claim. Recently, a safety manager in Alabama was criminally convicted for providing misleading information concerning prior accidents. I can tell you that this happens frequently. If your boss “forgets” that you reported the injury, proving that you told him is not impossible but it can be very difficult. This issue often results in claims that are lost.

You should immediately report any work-related accident and injury. Alabama even has a specific form that your employer should complete. You should insist that it be completed. If your boss does not do that, then you should put the event in writing yourself and make sure your employer gets it immediately.


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Why Injured Workers Hire An Attorney

Why do injured workers seek an attorney? The answer to this question tells us a lot about our workers’ compensation system. A recent article reports a study by an industry association on this issue. While the results are interesting, they are no surprise to me. I hear these reasons on a daily basis talking with clients. According to the study, the following reasons for hiring an attorney were commonly reported by injured workers:

  1. Concerns about being fired or laid off as a result of the work-related accident and injury;
  2. Concerns about the company treating the claim as illegitimate;
  3. Delays or miscommunications in the claims process; and,
  4. Feelings that the claim had been denied.

These are all important concerns. Often, employees dedicate years of hard-work and loyalty to a company. Yet, when the same loyal employees suffer a personal injury, they are suddenly treated as if they were not honest and not valued. That is wrong.

The system should work so that employees get needed medical care as quickly as possible. Too often, it does not work that way. Injured workers frequently tell me how they have waited days and weeks for the insurance carrier simply to accept their claim. Why should it take that long for the adjuster simply to pick up the telephone and verify the facts with the employer? In some industries, companies routinely deny claims whether valid or not. Injured workers frequently tell me how they have left numerous messages over the course of days and weeks with the adjuster simply to get approval for a medication or doctor’s visit. Is it too much to ask that the adjuster call the hurting employee back occasionally? Then, there are the employees who suffer an injury after years of hard work and suddenly face questions about their work history, preexisting health issues, and credibility.

I understand that some claims should be denied. However, most workers are honest. They are hard-working. They would rather work than go through the comp system. And, they deserve to be treated with respect not suspicion. The concerns which motivate injured employees to hire an attorney are real. Too often, legal counsel is needed to fight the wrongful denials and delays that prevent a successful medical recovery and return to work.

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Corrupt Employers Misclassify Workers to Avoid Paying Workers’ Compensation

Some employers refuse to play by the rules. What is one way in which employers break the rules and harm our workers’ compensation system? Corrupt employers misclassify workers. That is, they incorrectly label employees as independent contractors or outside consultants to avoid important laws related to safety and benefits. This is a disturbing trend which I have previously discussed.

The following is a quote from Leonard Jernigan published on Jon Gelman‘s workers’ compensation blog that sums up the problem misclassification causes in our workers’ compensation system. Both of these attorneys are considered experts in the field of workers’ compensation benefits:

When workers are misclassified, insurance companies do not consider them employees. The injured workers are then denied workers’ compensation benefits. Additionally, the insurance companies are not paid insurance premiums and are not adequately reserved for the risk of injury by those workers.

When employees are misclassified, everyone suffers. The worker will most likely have his claim for benefits denied. That worker may be able to win his claim but the resulting litigation could prove costly to everyone. Additionally, other employers who followed the law lose because they shoulder the costs of the system. Over the years, I’ve litigated many claims where the employer tried to avoid paying for workers’ compensation insurance by misclassifying its employees. Ultimately, we are often able to get these injured workers the benefits to which they were entitled. Unfortunately, the bad acts of these few employers resulted in a lot of pain and expense getting there.




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Do Some Employers Routinely Deny Valid Claims?

If you frequently handle workers’ compensation claims, you will see a disturbing trend — some companies routinely deny valid claims. In some specific types of work, it seems as if a wrongful denial of benefits is simply the normal course of action.

A recent article on an insurance industry website titled “Not to Be Denied (in Denying Inappropriate Claims)” raises significant questions. According to the article, Kelly Services (a temporary staffing company) has a claim denial rate now at 15% and suggests that 20% may be a “benchmark to shoot for.” The article quotes a Kelly official who implies that claims should continue to be denied in an effort to save money until the company begins to face litigation costs. In other words, deny claim after claim unless forced to pay in court.

In my practice, I see valid claims every day that have simply been denied in the hope that the worker goes away. These denials are wrong. The workers’ compensation system in Alabama was established to get workers the care needed to return to work if possible. If not possible, then the system is set up to provide minimum disability benefits. The choice simply to deny valid claims costs all of us greatly. We all pay when litigation costs are increased. We all pay when the costs of injured workers is shifted from the insurance carrier to our government.

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Alabama Court of Civil Appeals Continues to Create Issues in Workers’ Compensation Claims

On August 10, the Alabama Court of Civil Appeals released another decision that raises important issues for injured workers needing workers’ compensation benefits. The case deals with the huge difference in compensation under Alabama law between injuries to a single body part (often called “scheduled member” injuries) and injuries that affect the body as a whole. I could spend considerable time discussing all the issues raised by this case. Instead, I will focus on several brief points from the case:

  1. The difference between compensation for injuries that impact a workers’ whole body and injuries that only affect a single body part, can by HUGE. Make sure you address all your injuries and their complete impact on your body.
  2. If an injury to a single body part causes pain, limitations, or problems to other body parts, the Court can consider these additional issues on your disability. However, the full extent of these problems must be documented and addressed in order for the Court to consider them.
  3. Severe pain can be important. However, in addition to being severe, the full effects of the pain must be introduced into evidence.
  4. Too many attorneys ignore issues and evidence that impact whether an injury is compensated only as a “scheduled member” injury to a body part instead of an injury to the body as a whole. If you are an injured worker seeking needed compensation benefits, make sure you get legal advice from an attorney who understands workers’ compensation and is willing to go to trial in your case if needed.
  5. More and more, our appellate courts are re-weighing evidence. Non-lawyers may not understand the significance of this issue. However, the role of the trial court is to listen to all the evidence and to determine the facts. Our appeals courts should limit their review to determining whether the trial court applied the correct law. Instead, our appeals courts are increasingly deciding the evidence as well. I believe this is improper. However, understanding that the appeals court is going to carefully review all the evidence at the trial, means that attorneys should make sure ALL the evidence and ALL the trial court’s observations are included in the trial court record for review.

The case at issue is Gold Kist v. Smith. While my office in Huntsville represents only plaintiffs in personal injury and workers’ compensation cases throughout Alabama, a defense attorney in Birmingham who defends workers’ compensation claims has a pretty good brief discussion of this case on his website. This case raises more issues than it resolves. It raises additional barriers to what should be a fairly simple issue involving a trial court’s evaluation of an injured workers’ disability.


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Education Is An Important Factor In Evaluating Work-Related Disability

Vocational disability is a common issue in workers’ compensation cases. In other words, how does my work-related injury impact my ability to find or keep work in the future? Often, workers’ compensation benefits can be paid based on vocational disability.

Even when healthy, our ability to work is impacted by a number of factors. These include: age, experience, and education. In order to evaluate fully how a permanent injury affects your ability to work in the future, we must first consider the jobs available to you prior to that injury based on these factors such as age, experience, and education. Yet, this is exactly where many insurance carriers ignore the real facts.

In the past year, I have had several trials where the injured worker did not possess a high school degree. In each case, the injured worker had a long and successful work history before their injury. In each case, the injured worker experienced severe back or neck injuries in an accident, required surgery, and eventually suffered permanent chronic pain and restrictions.

At the trial of each case, the insurance company’s vocational expert ignored the fact that many jobs require a high school diploma. Instead, in each case, the insurance carrier tried to paint a rosy picture of lots of available work for the injured worker. On cross-examination, I was able to reveal the truth to the Court that the insurance company and its expert had painted a false picture by ignoring the issues of education and experience. However, I am left to consider how often insurance carriers succeed in falsely presenting the vocational issues.

The level of education is a big deal in determining the correct benefits due a worker with significant physical injuries. Instead of ignoring the truth, these insurance carriers have an honest choice – Either evaluate the worker based on his correct educational background OR provide vocational rehabilitation so that the injured worker receives additional education needed to find work within their restrictions.

If you want to understand just how difficult it is to find and keep full-time employment without an advanced education (even when you are perfectly healthy), here is a quote for you from recent research conducted at Rutgers University:

Overall, only 3 in 10 high school graduates are employed full time, compared to college graduates who are employed at nearly twice that rate. For those who graduated high school in 2006, 2007, and 2008 — before the recession — 37% are employed full time, compared to only 16% who graduated during the recession era.

The research from Rutgers paints a clear picture of how difficulty the job market can be for healthy workers without some advanced education. I would add that many of the jobs available to workers with just a high school degree, or less, are also jobs that require significant physical labor. So, just imagine how truly difficult it can be for a worker without a high school degree to actually find employment after suffering an injury that restricts his physical abilities. If you are a visual person and like graphs, blogger Stuart Staniford took the Rutgers research and created a graph depicting the data. Political blogger Kevin Drum has also discussed the data in recent posts. The graph is below:


The graph clearly shows that pre-recession, the majority of individuals with only a high school diploma were not employed in stable full-time work. That’s during the good times. In times of recession, those figures are much worse. In evaluating vocational disability, workers’ compensation carriers must consider the impact of factors like education. Unfortunately, they usually do not. Because of that, if you or a family member has suffered a significant work-related injury that has made it difficult to find work, an attorney who understands workers’ compensation issues should be consulted. These issues are too important for working families to ignore.



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Alabama Court of Civil Appeals Reminds Personal Injury Claimants – Workers’ Compensation Liens Have Priority

On March 9, the Alabama Court of Civil Appeals addressed the priority of workers’ compensation liens in personal injury claims. Generally, workers’ compensation liens have priority as to the funds received from any personal injury settlement or judgment.

This decision is no surprise. It is not really a new development in the law. The priority of workers’ compensation liens is an issue that attorneys handling workers’ compensation and personal injury claims deal with frequently. I have written previously on the topic of how a workers’ compensation lien can impact your personal injury claim. In one earlier post, I provided four tips when dealing with these liens in your personal injury case. The impact of these liens can present significant issues. It’s important to have legal counsel that is experienced with this specific area of the law.

In prior jury trials, I have even utilized the workers’ compensation adjuster as one of my key witnesses. In post-trial discussions with those jurors, I have found that this testimony concerning various costs of medical and disability benefits made a very positive impression. The following is my prior post with some advice in this area of the law:

The March 9 decision from the Alabama Court of Civil Appeals can be read here:

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Is That Really My Average Weekly Wage?

Injured workers frequently ask this question when trying to get the workers’ compensation benefits they need. Usually, the worker raises the question because the number provided by the insurance company just does not seem right. Regardless, it is often a source of confusion. In many cases, the insurance company adjuster does a poor job of explaining how average weekly wage is calculated and why it is important.

Your average weekly wage is important in calculating the benefits owed you for any disability. Alabama law places caps (or maximum amounts) on benefits. However, generally a higher average weekly wage means greater benefits to you if you suffer any type of disability.

How is this number calculated? The law can be complex. Also, the law seems to change frequently due to legislative changes and new court cases. So, if you are concerned about the number that the workers’ compensation carrier says is your average weekly wage, you may want to consult an experienced workers’ compensation attorney. Because the law is complex and subject to many issues, I have had to take this issue to trial in many cases. So, what are the formulas for calculating average weekly wage?

  1. Calculate your average weekly earnings for the 52 weeks (one year) immediately preceding the injury. In other words, the employer takes your earnings for an entire year leading up to your injury and figures a weekly average. This is the method required by Alabama law if you worked at your job for at least a year leading up to your injury. Under this method, you will get the benefit for any periods of overtime you worked in the last year. However, you may also have less average earnings if you lost hours of work during the year for any reason. If you lost more than 7 days of work in a row during the 52 weeks, then the calculation should take the lost time into account and be calculated based on less than 52 weeks.
  2. If your employment is less than the 52 weeks leading up to your injury, then your earnings are divided by the weeks (and parts of weeks) that you did work for that employer prior to your injury. This is fairly simple. If you worked in your job for less than a year prior to getting hurt, then you calculate the average weekly wage by getting an average based on the number of weeks you did work. However, Alabama law says that this method can only be used if the results are just and fair to both parties. It is this principle of fairness which often leads to a dispute at trial. If this method is not fair, then Alabama law provides a third method to calculate average weekly wage.
  3. In limited situations your average weekly wage can be based on a similar employee. This method is only available in limited circumstances. Basically, you have worked less than 52 weeks for your employer. And, it is not practical to calculate an average based on the actual number of weeks you did work. Maybe you just worked a few days prior to your injury. Maybe the job was seasonal. In those cases, the best method is to look at the wages of another employee who has held your position over a period of time.

Another factor to consider in calculating your average weekly wage is the value of certain fringe benefits, like health insurance. Some fringe benefits, like health insurance, are very valuable. The money your employer pays for certain fringe benefits can be added to your average weekly wage if your employer does not continue providing these benefits to you after your injury. Many times, insurance carriers will not include this additional compensation in their calculation of average weekly wage. Yet, it can make a significant difference.

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Your Injury Claim and The Danger of Social Media

The first line of the MSNBC article says it all:  “Pictures of carousing can come back to haunt you.” Anyone who has used social media sites like Facebook or Myspace probably has a story or two of someone who has posted information or pictures they later regretted.

When it comes to social media posts and regrets, we automatically think of embarrassing pictures or details. The embarrassment of having your friends see you at your worst should not be your only worry. If you are looking for a job, keep in mind that prospective employers also often review such sites. What started as a little embarrassment may ultimately cost you a job. Additionally, when it comes to workers’ compensation or personal injury claims, a post can cause significant harm even if not embarrassing at all.

That innocent picture of you standing on the ski slope with your friends with the caption – “Having a great time skiing” – makes for a good photograph.  Yet, it could really damage your injury claim if found by the insurance carrier or defense attorneys.  Maybe you just tagged along on the ski trip but were too hurt to actually ski. That’s OK. However, the picture makes it appear as if you were really skiing. Now, you are on the defensive and the insurance carrier has a piece of evidence to cast doubt on your claimed injury.

When I meet with clients, I routinely advise them as to the pitfalls of sites like Facebook. I advise them to make sure their site is set to private, to be careful who they allow as friends, to not discuss their accident or condition, and to be careful with posting pictures or other information. Even the most innocent posts can often be interpreted several ways. You can rest assured that the defense will interpret them in a way to cast doubt on your claim or your injuries.

Karen Koehler, an excellent attorney in Seattle, has written on this issue as well.  Karen actually writes a letter to each of her clients warning them about the impact of social media on their claims. Karen recommends closing your site until the case is complete. I think it is probably unrealistic to think that most clients will completely close their sites. I imagine Karen also thinks it is unrealistic. So, her letter also carries a lot of good, practical advice on how to handle your site until the conclusion of your claim. Any person who has suffered a significant personal injury should be careful about their actions on sites like Facebook, Myspace, or even Twitter.

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