G.A. West & Co. v. Johnston

92 So. 3d 74, 2012 WL 415470, 2012 Ala. Civ. App. LEXIS 38
CourtCourt of Civil Appeals of Alabama
DecidedFebruary 10, 2012
Docket2100980
StatusPublished
Cited by2 cases

This text of 92 So. 3d 74 (G.A. West & Co. v. Johnston) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
G.A. West & Co. v. Johnston, 92 So. 3d 74, 2012 WL 415470, 2012 Ala. Civ. App. LEXIS 38 (Ala. Ct. App. 2012).

Opinions

THOMAS, Judge.

In August 2006, Claiborne Johnston began working for G.A. West & Co., Inc. (“G.A. West”). When Johnston applied for a position with G.A. West, he was required to fill out a medical questionnaire. That questionnaire contained the following questions:

“Have you had any injury or injuries on the job?
“Do you have or have you had other injuries or illnesses not on the job (home, auto, sports, hunting, etc.) that have resulted in hospitalization, surgery, or lost work time?
“Are you taking any long term (more than 30 days) prescribed medication?
“Do you have or have you had diagnosed as having [sic] any illnesses or injury for which you are seeking treatment?”

Johnston answered “no” to all the questions except the first one. He disclosed in response to the first question that he had been injured on April 10, 2005, when he fell on a jack stand while employed by Pipeline Technic, LLC (“PTL”). Johnston further explained that he had injured his coccyx, that he had filed a workers’ compensation claim regarding the injury, and that he had been assigned a 5% disability rating as a result of the injury. It is [77]*77undisputed that Johnston did not reveal that he had been prescribed Mobic, an anti-inflammatory medication, as a result of his injury. Johnston also admittedly failed to reveal that he had had hip-replacement surgeries in 2002 and 2005.

On or about September 14, 2006, Johnston was working on a job at which G.A. West had been contracted to put in a reinforced-eoncrete driveway at a power plant. While preparing the site, another employee was excavating a ditch; in doing so, that employee damaged a buried water pipe with a baekhoe. Johnston, Dale Clements, Johnston’s supervisor, and another employee climbed into the ditch to examine the damage to the water pipe. Johnston was either stepping to the other side of the ditch or stepping down into the ditch when he either lost his balance or slipped on the water pipe and began to fall; Johnston was able to right himself before falling, but, as he did so, he felt excruciating pain in his lower back, through his hips, and radiating into his thighs. Johnston testified that he recalled immediately hollering that he had hurt himself; however, because Johnston had undergone hip-replacement surgeries in 2002 and in 2005, he said that he had initially believed, and had initially told Clements, that he had injured his hips when he slipped. Johnston explained that he had “just tried to walk a little bit, you know, stretch, try to get through the pain” and that he had then told Clements that he was “okay.” Johnston finished his shift that day. According to Johnston, he was from “the old school,” which meant that “you just kind of grit your teeth and go.”

Clements recalled that Johnston had tried to step across the ditch and had instead stepped back into the middle of the ditch; according to Clements, Johnston had stated “that hurt” and placed his hand on his hip. Clements also recalled Johnston explaining that he “knew better than to take awkward steps” because “he could tear all this [i.e., his hip replacements] loose.” Clements said that he had asked Johnston if he was okay and that Johnston had said that he was “okay now” and that Johnston had finished the rest of the day at work.

According to Johnston, the incident occurred on a Thursday, and, because he was working 10-hour shifts Monday through Thursday, he went home and spent the 3-day weekend suffering pain in his lower back, in his hips, and down his legs. When he returned to work on Monday, Johnston said, he reported to Clements that he was still suffering pain from the incident on Thursday and that he thought he needed to see a doctor. Johnston testified that Clements had “immediately looked at me and kind of shuffled off, went off, you know.” Based on Clements’s response, Johnston said, he called the doctor who had performed his hip-replacement surgeries, Dr. William J. Bose, and scheduled an appointment for Tuesday, September 19, 2006. Johnston testified that he told Clements that he had made the appointment and that Clements had said “okay.” After Dr. Bose determined that Johnston had not injured his hips, Dr. Bose referred Johnston to Dr. James West; Johnston said that he informed Clements that Dr. Bose was sending him to see Dr. West because Dr. Bose suspected that Johnston had suffered a back injury. Johnston testified that Clements made no response to that information.

Johnston admitted that he did not report his injury to people in the office of G.A. West in September 2006 and that he did not file a workers’ compensation claim at that time. According to Johnston, he did not think that the injury, which he first thought was to his hips, was G.A. West’s responsibility. Furthermore, Johnston ex[78]*78plained, he had not realized that slipping on a pipe could cause much damage. He also testified that he had been “brought up” to tough it out and not to file injury claims; he said he wanted to protect his reputation as a good worker.

On September 16, 2007, one year after his injury, Johnston went to the office of G.A. West’s company nurse, Darlene Arnold. On that date, Johnston told Arnold that he had suffered an injury while working for G.A. West in September 2006. Johnston explained to Arnold that he had at first thought that his injury was related to his hips or his coccyx but that he had since learned otherwise. He told her that he had hoped that G.A. West might consider paying for his treatment, because his previous employer, PTL, had stopped paying for his treatment after it discovered that he had injured his back.

As noted above, Johnston initially sought treatment from Dr. Bose, who then referred Johnston to Dr. West. Dr. West had treated Johnston for his fractured coccyx. Dr. West testified by deposition. He explained that Johnston’s 2005 injury that occurred while Johnston was working for PTL (“the 2005 PTL injury”) resulted from a fall onto a jack stand. According to Dr. West, Johnston suffered a sacral coc-cygeal segment fracture in that accident. An MRI performed in 2005, after Johnston had suffered the 2005 PTL injury, revealed significant degenerative changes in the lumbar region of Johnston’s back, including some mild bulging disks causing mild nerve-root pressure, mostly at the L4-L5 and L5-S1 levels. Dr. West testified that, in January 2006, another MRI performed on Johnston revealed that his fractured coccyx was still symptomatic; ultimately, Dr. West assigned Johnston a 5% physical-disability rating for the fractured coccyx, and he opined that the long-term effects of the fracture could include difficulty sitting for long periods and that flare-ups of pain in the area were likely. Dr. West explained that, although Johnston had made complaints of lower-back pain during the treatment of his fractured coccyx, “by far the chief complaint” lodged by Johnston during that treatment was sacral pain and that his complaints before September 2006 were thus related to his fractured coccyx.

When Dr. West saw Johnston after the 2006 incident, however, Dr. West noted that Johnston’s complaints were directly related to his lumbar region. Johnston had another diagnostic MRI in 2006, which revealed a “significant herniation” of the disk at L4-L5 and a central annular tear at L3-L4. Dr. West specifically testified that Johnston “appeared to complain to me of two separate pain patterns, each of which was assigned to specific injuries,” i.e., the fractured coccyx and the herniated disk. Dr.

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Bluebook (online)
92 So. 3d 74, 2012 WL 415470, 2012 Ala. Civ. App. LEXIS 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ga-west-co-v-johnston-alacivapp-2012.