Chronic Pain Sufficient to Take Scheduled Member Injury Outside of Schedule

Further expanding an employee's ability to recover compensation benefits outside of those provided for due to the loss of a scheduled member, on March 18, 2011 in Ex parte Thomas Hayes, 2011 Ala. Lexis 35, our Supreme Court reversed our Court of Civil Apeals and re-instated a finding by the trial court awarding benefits for a permanent and total disability, where the original injury was limited to the employee's foot. While not creating any new law, this decision follows what has been a slow trend by our appeals courts to further expand those instances where an employee can recover permanent partial (for injury to body as a whole) and even permanent total disability benefits for injuries that are sustained to a scheduled member. In this case the employee had sustained an injury to his foot. Thereafter he developed chronic pain and swelling in the foot and leg, even when he avoided using the leg. The rule relied on by the Supreme Court to affirm the trial court's award of permanent and total disability is as follows: "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." It went on to point out that this test does not require that there be physical damage to the structure of other parts of the body. It is sufficient for the employee to prove that "the injury to the scheduled member causes pain or other symptoms that render the nonscheduled parts of the body less efficient." Again, this decision does not create or establish new law, but it does show what we believe to be a trend by our courts to return to a more subjective basis for expanding scheduled member injuries to injuries compensated on the basis of an injury to the body as a whole. What for a few recent years appeared to be a definite trend in favor of limiting employees to the benefits allowed for under the schedule, now appears to be swinging back in favor of an expansion of thsoe benefits.