Friedman, Dazzio, Zulanas & Bowling space Friedman, Dazzio, Zulanas & BOWLING, P.C. BIRMINGHAM OFFICE 3800 CORPORATE WOODS DRIVE, BIRMINGHAM, ALABAMA 35242 P 205-278-7000  F 205-278-7001 Friedman, Dazzio, Zulanas & BOWLING, P.C. MONTGOMERY OFFICE 401 MADISON AVENUE, MONTGOMERY, ALABAMA 36104 P 334-387-0529
Friedman, Dazzio, Zulanas & Bowling Home Page Friedman, Dazzio, Zulanas & Bowling, P.C. News The Law Firm of Friedman, Dazzio, Zulanas & Bowling, P.C. The Attorneys Of Friedman, Dazzio, Zulanas & Bowling, P.C. Friedman, Dazzio, Zulanas & Bowling Practice Areas Contact Friedman, Dazzio, Zulanas & Bowling, P.C.

Analysis of chronic pain and depression relative to permanent and total disability

Mr. Dingman was working for Caseco, LLC in April 2001 on a construction project when he sustained a significant injury to his left leg and ankle when approximately 3,000 pounds of bar joists landed on his left leg. Following treatment of a fracture to the left ankle, Mr. Dingman was released to return to work in July 2001. However, Mr. Dingman continued to seek treatment complaining of persistent pain that interrupted his sleep. His treating physician noted that despite the fracture healing, he had developed post-traumatic degenerative joint disease in the ankle and Mr. Dingman should remain off work due to his inability to comfortably ambulate.

 

Continued treatment resulted in a diagnosis of chronic pain for which Mr. Dingman was prescribed anti-inflammatory medication and pain medication. He was advised that a subtalar fusion of the ankle would be required at some point. Additionally, Mr. Dingman was diagnosed with depression and prescribed antidepressant medication. Subsequently, he underwent the ankle fusion surgery. However, Mr. Dingman's pain continued and he was prescribed additional narcotic pain medication and continued to treat his depression with antidepressants. One of the physicians who treated Mr. Dingman following the subtalar fusion noted that Mr. Dingman's weight and use of his ankle in performing employment activities could have accelerated the progression of his arthritis. However, the physician did not conclude that the arthritis was the result of subsequent employment performed by Mr. Dingman during the seven year period following the accident.


Although the treating physician testified that Mr. Dingman could not return to his former occupations, including iron worker, corrections officer or delivery driver, he did not believe that Mr. Dingman was permanently and totally disabled as a result of the ankle injury. Further, the treating physician noted that Mr. Dingman had not reported symptoms of depression in recent months.


Another treating physician testified that Mr. Dingman had reported being depressed during the same time frame, although he noted that the depression was due to other factors including Mr. Dingman's financial and marital problems related to his inability to return to gainful employment because of the ankle injury and the resulting chronic pain. It was revealed that Mr. Dingman had related suicidal ideation.


Mr. Dingman testified that his depression was related to a combination of life issues, all of which resulted from the 2001 injury and the surgeries and chronic pain that he suffered. He testified that this lead to his suicide attempt by overdosing on pain medication.


Plaintiff's vocational expert testified that he was 100% vocationally disabled based on his pain, continuing medical difficulties and problems with ambulation. The vocational expert who testified on behalf of Caseco concluded that Mr. Dingman had a vocational disability in the 42% to 47% range.

The trial court concluded that Mr. Dingman suffered a non-scheduled injury to the body as a whole based on its determination that Mr. Dingman's pain was excessive to the point that his ankle injury moved beyond the schedule for permanent/partial disability; that his back problems and back pain resulted from altered gait related to the ankle fusion surgery; and that Mr. Dingman suffered a non-scheduled psychological injury, severe depression, that occurred as a result of the 2001 ankle injury and subsequent treatment.


On appeal, Caseco raised several arguments regarding the trial court's finding that Mr. Dingman suffered a non-scheduled injury to the body as a whole instead of a scheduled member injury to his foot or leg. Based on these arguments, Caseco also argued that the trial court erred by concluding that Mr. Dingman's ankle problems provided a basis for vocational disability. The Alabama Court of Civil Appeals first determined that substantial evidence presented to the trial court confirmed that Mr. Dingman's ankle injury arose solely as a result of the 2001 accident and was unrelated to subsequent employment or other issues. Next, the Court of Civil Appeals considered Caseco's argument that Mr. Dingman's depression was not proximately caused by the 2001 ankle injury. Again, the Court of Civil Appeals concluded that the trial court's decision in this regard was supported by substantial evidence as treating physicians' testimony reflected the ankle injury was a major contributing factor in the depression and although financial and marital problems were also factors in the depression, Alabama law does not require that the employee's injury be the sole cause of the depression, but instead, the injury could "contribute or exacerbate" any psychological problems.

Regarding Caseco's argument that the trial court erred in concluding that Mr. Dingman was permanently and totally disabled, the Alabama Court of Civil Appeals reviewed the standard for permanent and total disability, recognizing that it does not require "absolute helplessness." Golden Corp., Inc. v. Hudson, 924 So.2d 727, 734 (Ala. Civ. App. 2005). The Court recognized that in reconciling conflicting testimony, the trial court could consider Mr. Dingman's subjective testimony regarding his pain. In reaching a disability determination, the Court concluded his chronic pain resulting from the ankle injury, along with his depression, rendered him permanently and totally disabled from gainful employment.


Contributing Author:

James W. Moss
James W. Moss, Shareholder
Email Address jmoss@friedman-lawyers.com
Direct Line 205-278-7011
vCard View Profile

 

< Back to News Home Page

 

This client alert is provided solely for educational and informational purposes. It is not intended to constitute legal advice. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.