On August 16, 2013, The Alabama Court of Civil Appeals released its opinion in the matter of DuBose Construction Company, LLC v. James Simmon. This was the third time this case had come before the Court. The subject injury was to the employee’s right knee which occurred as the result of a fall at work. At trial, the judge found the matter compensable and assessed a 15 percent permanent partial loss of the employee’s ability to earn. The employer appealed on the grounds that the judge should not have considered evidence of vocational loss or assessed a whole body impairment where the injury was to a scheduled member. The Court of Civil Appeals agreed and reversed the judgment. Four months later, the trial court dismissed the case in its entirety. After a failed attempt at mediation, the employee filed a petition for writ of mandamus asking the Court to order the trial court to vacate its dismissal. The Court granted the petition. The employer then filed a petition for a writ of mandamus to the Alabama Supreme Court in an effort to have the Court of Civil Appeals’ mandamus order vacated. That petition was denied.
The evidence at trial revealed that the employee had a torn medial meniscus in his right knee. While performing an arthroscopy, the treating physician discovered that the employee also had chondromalacia which was described as a wear and tear, arthritic issue. Upon reaching maximum medical improvement, the employee was released to return to work at full duty with zero restrictions and no medical impairment. In his trial deposition, the treating physician testified that any complaints of pain would be due to the arthritic issue.
At trial, the employee testified that his knee injury caused him to walk with a limp and that his back was off balance. On remand, the trial judge relied on this testimony to remove the knee injury from the schedule and consider evidence of vocational disability. The employer then appealed on the grounds that the employee’s testimony failed to prove that his knee injury had any effect on other parts of his body.
The Court of Civil Appeals agreed with the employer. In reversing and remanding the matter, the Court relied on the Drummond test. In Ex parte Drummond, the Court adopted the following test: 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. In applying this test, the Court noted that the employee never actually testified that he was having lower back problems. The evidence further revealed that the employee never received any medical treatment for any other body parts. In fact, his treating physician testified that the employee never complained about any body part other than his knee.
In reversing and remanding the matter, the Court instructed the trial court to determine what, if any, disability the employee had to his right leg.
About the Author
This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at firstname.lastname@example.org or any firm member at 205-332-3430.