The Alabama Court of Civil Appeals recently addressed the continuing attempt of workers injured on the job, with a scheduled member, trying to get around the schedule relying on disabling pain. In Wehadkee Yarn Mills v. Harris, Deborah Harris was a long time employee at the mill, and at the time of her injury was a lab technician. Her job required her to lift packages of yarn weighing 3 to 12 pounds. On February 7, 2006, she was lifting a package of yarn when she felt pain in her right thumb. She was treated by numerous doctors, and had surgery on her right hand. She continued to have constant pain, rating it a 5 or 6 on a scale of 10, and that simple activities, such as washing dishes or putting on makeup increased her pain to an 8 on a scale of 1-10. She testified that the pain did not go more than 2 inches above her wrist. She returned to work at Wehadkee, but the plant shut down shortly thereafter. She applied for and received unemployment compensation for about 5-6 months, and then took a job at Wal-Mart, where she worked for approximately 5 months, before quitting due to the pain in her right hand. At the time of trial, she had been approved for Social Security Disability. The trial court found her 100% permanently disabled as a result the disabling pain, and did not treat her injury as a scheduled injury.
On appeal, the Alabama Court of Civil Appeals remanded the case to the trial court since the trial court did not apply the test set forth in Norandal U.S.A. Inc, v. Graben, which held that "a worker who sustains a permanent injury to a scheduled member resulting in chronic pain in the scheduled member that is so severe that it virtually totally physically disables the worker would not be limited to the benefits set out in the schedule."
Practice Pointer. In a workers’ compensation case, many times the injured worker who otherwise has a scheduled injury is claiming pain that results in a permanent total disability. The court can find for such a claim, so long as the facts support it. As I have frequently said, the 2 most important factors in a workers’ compensation case are the judge and the demeanor of the injured worker. The judge has the discretion to make almost any finding in a non-jury setting, so long as it is supported by a reasonable interpretation of the facts. And the injured worker, when he/she makes a credible witness, has a much better chance of succeeding on the claim.