Alabama Workers' Comp Blawg

Court of Civil Appeals Addresses Misrepresentation Defense, Estoppel, Pre-Existing Conditions, Causation, and Permanent and Total Disability

The Alabama Court of Civil Appeals recently released its decision in the case of G.A. West & Co., Inc. v Claiborne Johnston. On Thursday, September 14, 2006, Johnston stepped into a ditch, and either slipped on a pipe or lost his balance. Johnston was able to right himself before he fell, but he allegedly felt an excruciating pain in his lower back, hips and thighs. Johnston testified that he immediately yelled out in pain, and that he told his supervisor, Dale Clements (who was in the ditch with Johnston at the time), that he had hurt his hips when he slipped. Johnston finished his shift that day, and was off work the next 3 days. When he returned to work on Monday, Johnston told Clements that he was still hurting from the incident and needed to see a doctor. According to Johnston, Clements did not respond, so Johnston called Dr. William Bose. Dr. Bose had previously performed two hip replacement surgeries on Johnston in 2002 and 2005. Dr. Bose examined Johnston and determined that he had not injured his hips, and referred Johnston to Dr. James West. Dr. West had previously treated Johnston for a fractured coccyx due to injury in 2005 with another employer, and had assigned a 5% impairment rating to Johnston’s body-as-a-whole as a result of that injury. According to Dr. West, Johnston suffered a new injury to his lumbar spine as a result of injury at G.A. West & Co.

A year after the injury, Johnston went to the office of G.A. West’s company nurse, and told her that he had suffered an injury the prior year. He further told the nurse that he first thought the injury was related to his hips or his coccyx, but had since learned it was related to his lumbar spine. Johnston asked G.A. West to consider paying for his treatment. G.A. West declined, and Johnston filed a lawsuit seeking permanent and total disability benefits. G.A. West & Co. asserted that it did not have proper notice of the alleged injury; that Johnston had knowingly and intentionally misrepresented his physical condition in writing at the time he entered into the employment relationship; that Johnston had deliberately concealed a work related injury; that Johnston had a pre-existing condition that accounted for some of his disability; and that Johnston was not permanently and totally disabled because he was capable of being vocationally retrained. The trial court found in favor of Johnston on all issues, and G.A. West & Co. appealed on all of the above grounds. A very brief analysis of each of the issued raised on appeal by G.A. West is below.

Misrepresentation

When Johnston was hired, he completed a pre-employment questionnaire that asked if he had any prior on-the-job injuries, other injuries or illnesses, or was taking any prescription medications. Johnston admitted that he had injured his coccyx in April of 2005 and had been assigned a 5% impairment rating. However, he answered "no" to the remaining questions, although he was taking Mobic regularly and had two previous hip replacement surgeries. Additionally, a 2005 MRI of Johnston’s back revealed bulging discs at the L4-5 level of Johnston’s lumbar spine, and medical records obtained through discovery indicated that Johnston had complained of back pain for more than 20 years. Based on this, G.A. West & Co. argued that Johnston was barred from recovering benefits under § 25-5-51 of the Alabama Workers’ Compensation Act, because he misrepresented his physical condition at the time he was hired. The appellate Court noted that in order to prevail on that defense, G.A. West & Co. had the burden of proving that in the course of entering into the employment relationship, G.A. West provided Johnston with the written warning set forth in § 25-5-51, Johnston knowingly and falsely misrepresented his physical condition in writing, and that condition was aggravated or reinjured in an accident arising out of and in the course of Johnston’s employment. The Court noted that while Johnston had a history of back issues, the evidence did not establish that Johnston was ever informed that he had any serious back related injury or illness. Additionally, the Court failed to find any causal connection between Johnston’s use of prescription medications or his prior hip replacement surgeries and his September 2006 injury that would predispose him to further injury. As such, the Court found that G.A. West failed to meet its burden of proof on the misrepresentation defense.

Notice

While it was undisputed that Johnston failed to give written notice as provided under the Act, the Court found that G.A. West had oral notice sufficient to cause it to investigate the alleged accident further. The Court noted that since Johnston’s supervisor was with him and witnessed the alleged accident, G.A. West had sufficient notice that work-related activity prompted Johnston’s exclamation of pain.

Estoppel

On appeal, G.A. West argued that Johnston was estopped from recovering workers’ compensation benefits because he deliberately concealed his work-related injury. The appellate Court found that G.A. West failed to raise that issue before the trial court. Relying on precedent set in Dueitt v. Scott Paper Co., 695 So.2d 40, 44 (Ala.Civ.App. 2004), the Court of Appeals stated that it could not consider an issue that had not been properly raised in the trial court.

Pre-Existing Condition

G.A. West argued that the trial court erred when it failed to allocate at least a portion of Johnston’s alleged disability to his previous injuries pursuant to § 25-5-58 of the Act. However, the appellate court noted that "the law presumes that there is no preexisting injury or infirmary when the employee is able to fully perform his or her job duties in a normal manner prior to the subject injury." As such, the appellate court found that the trial court’s findings were based on substantial evidence.

Causation

G.A. West further argued that Johnston failed to establish medical causation of his injury, because Dr. West could not state with any certainty that Johnston’s herniated disc was caused by the September 2006 accident. The appellate court noted medical causation may be established by a combination of lay testimony and expert medical testimony. Since Dr. West considered the accident to be the cause of Johnston’s injuries, and Dr. West testified that Johnston’s injuries were potentially compatible with an accident like Johnston’s, the trial Court had substantial evidence on which to base its finding of compensability.

Permanent & Total Disability

Finally, G.A. West argued that Johnston was not permanently and totally disabled because he was capable of being vocationally retrained. In support of its argument, G.A. West pointed out that Johnston had been employed by various employers since the accident; that Dr. West had only restricted Johnston to the light to medium job categories; that Dr. West did not testify that Johnston was incapable of working; Johnston had a commercial drivers’ license; and Dr. West agreed with Johnston’s plan to find work as an equipment operator. Johnston, on the other hand, testified that he couldn’t perform the equipment operator jobs without pain; he had to nap during the day because he slept poorly at night due to pain; he had performed manual labor jobs all of his life; and he only had a tenth grade education. The Court of Appeals found that the trial court could have implicitly found that Johnston was incapable of being retrained for gainful employment due to his pain, sleep difficulties, and limitations on standing, sitting, and walking. The Court further pointed out that an employee doesn’t have to be completely helpless to be permanently and totally disabled, but only must be unable to maintain employment similar in remuneration.