Fish: The Exception That Isn't
Monday, May 16, 2022 | 0
In somewhat of a revelation, I just learned that there are not three exceptions to the schedule of compensation. Not only have I firmly believed that to be the case, I taught others on the subject. For those of you who learned this misinformation from me, please accept my apology.
Mike Fish
Prior to this, I thought it was possible to remove an otherwise scheduled injury from the schedule if you could establish:
- That the effect 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).
- That the scheduled body part produced totally or virtually totally disabling pain.
- 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 two 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, 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 pleaded 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.
Mike Fish is an attorney with Fish Nelson & Holden LLC, headquartered in Birmingham, Alabama. This entry is republished, with permission, from the firm's Alabama Workers' Comp Blawg.
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