(251) 299-0101

COMPENSATION OUTSIDE SCHEDULE - EX PARTE THOMAS HAYES

In Ex parte Thomas Hayes, [Ms. 1070315, Mar. 18, 2011] __ So. 3d __(Ala. 2011), the Alabama Supreme Court revisited the issue of when an injured worker is entitled to compensation outside the schedule set forth in ¤ 25-5-57(a)(3)(a), Ala. Code 1975 ("the schedule"). Thomas Hayes, a custodian for Vintage Pharmaceuticals, suffered an open fracture of his right calcaneus (heel bone) in a forklift accident at work. The injury to his right foot complicated a preexisting congenital defect in his left foot. The circuit court concluded that Hayes was entitled to compensation outside the schedule. The Alabama Court of Civil Appeals reversed, holding, among other things, that Hayes had to prove a physical injury to a particular nonscheduled part of his body in order to receive compensation outside the schedule. Hayes appealed to the Alabama Supreme Court. The Alabama Supreme Court reversed, holding that "the test for when an injury to a scheduled member may be treated as a nonscheduled injury to the body as a whole [was as follows]: '[I]f 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.'" Child Day Care Ass'n v. Christensen, 47 So. 3d 249 (Ala. Civ. App. 2008) (quoting Ex parte Drummond Co., 837 So. 2d 831, 834 (Ala. 2002)). The Alabama Supreme Court then distinguished the present case from the facts in Ex parte Drummond Co., quoting at length from the circuit court's findings of fact regarding the injuries suffered by Mr. Hayes. The Court observed that the circuit court concluded that Hayes's right foot injury affects his "balance and stability, requiring him to use a cane or walker when walking, and necessitating foot elevation throughout the day." As a result, the Court concluded there was substantial evidence to support the circuit court's conclusion that "the effects of the injury to Hayes's right foot extend to and interfere with the effective functioning of the remainder of his body in a manner that satisfies the rule announced in Drummond."

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