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Foot injury results in total permanent disability under Workers' Compensation Act

A custodian injured his foot in a forklift accident while working for his employer. The accident severed part of his right heel bone. During his recovery from surgery, he developed an infection in his foot. The infection required multiple surgeries to remove dead or contaminated tissue and to reconstruct the foot. In his left foot, the custodian suffered from congenital defects. Before the accident, the custodian was able to work, but walked with a limp as a result of this congenital defect in his left foot. As a result of the damage to the right foot caused by the forklift accident, he was left unable to compensate for the congenital defects to the left foot.

After reviewing the medical records of the custodian and hearing the testimony of his vocational evaluator, the Madison County Circuit Court first found that the effect of the injury went beyond the foot and that the custodian was therefore entitled to compensation outside of the scheduled compensation provided by Alabama Code § 25-5-57. Then the court found that the custodian was permanently and totally disabled. As evidence of this, the court noted that the custodian—

  • Had a severely altered gait.
  • Could stand or walk for only 1 hour out of each 8-hour work day.
  • Had to use a walker during the 1-hour period.
  • Had to elevate his feet at waist level or above, virtually precluding all work activity.
  • Had to wear a boot to be able to walk and had no control over the right foot when not wearing the boot.
  • At night, had to crawl on all fours to go to the bathroom.

The employer appealed this decision to the Alabama Court of Civil Appeals, which reversed the circuit court. The appeals court reasoned that the custodian, to be eligible for compensation outside of the schedule, had to show that the injury to the foot also injured another part of the body, but found no evidence that this was the case. The court of appeals found that the foot injury did not impede the effective functioning of the rest of his body.

The Alabama Supreme Court disagreed and reversed the appeals court, finding substantial evidence in the record to support the finding of total permanent disability. See Ex Parte Hayes, decided on March 18, 2011.

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