Alabama Workers' Comp Blawg

  • 05
  • May
  • 2022

The Alabama Exception to the Schedule that is not an Exception

In somewhat of a revelation, I learned today that there are not 3 exceptions to the schedule. Not only have I firmly believed that to be the case, I taught others on the subject. For those of you that learned this misinformation from yours truly, please accept my apology. Prior to today, I thought that it was possible to remove an otherwise scheduled injury from the schedule if you could establish: (1) that the affect of the scheduled injury extended into another area of the body (that is also not scheduled) and permanently affected its efficiency (aka the Drummond Test), (2) that the scheduled body part produced totally or virtually totally disabling pain, or (3) that the scheduled injury produced psychological injury (which I always argued needed to be totally or virtually totally disabling). In preparing for a trial where the exceptions to the schedule are THE issue, I discovered that there are only 2 exceptions to the schedule. “Psych” is not an exception. Rather, it is merely a separate injury. It is no more an exception to the schedule than the neck or lower back. In other words, if it is proven that, in addition to the scheduled injury, that the plaintiff also has another non-scheduled injury that arises from the same accident, then the plaintiff’s recovery is no longer limited to the schedule. Alabama is a physical/mental state which means you must have a physical injury to be able to claim a psychological injury. Further, the physical injury must be a contributing cause of the psychological injury. Here is the kicker, to claim psych as a separate injury, it must be plead in the Complaint. You cannot show up to trial and claim psych when it was not pleaded any more than you can show up and claim neck or low back if they were not pleaded in the Complaint.

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

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