15 Feb EMPLOYEES MISREPRESENTATION OF PRIOR MEDICAL CONDITIONS NOT A BAR TO RECEIPT OF BENEFITS
G. A. West & Co., Inc., v. Johnston
Washington County Circuit Court (February 10, 2012)
The Alabama Court of Civil Appeals recently held that an employee’s failure to fully disclose his prior medical history on a job application did not preclude him from recovering permanent and total disability benefits.
According to the facts of the case, Claiborne Johnston began working for G.A.+ West & Co., Inc., (G.A. West) in August of 2006. When he applied for a job with G.A. West, he was required to fill out a medical questionnaire. Johnston answered “no” to questions about other injuries or illnesses which resulted in medical treatment or loss of work, any medications that he had been taking on a long term basis and any other illnesses or injuries for which he was currently seeking treatment. Johnston did disclose that he injured his coccyx when he fell on a jack stand while employed by a previous employer. He further disclosed that he filed a workers’ compensation claim regarding that injury and had been assigned a 5% disability rating. Johnston did not reveal that he had been prescribed Mobic, an anti-inflammatory medication, as a result of that injury. Johnston also admittedly failed to reveal that he had hip replacement surgeries in 2002 and 2005.
Shortly after he began working for G.A. West, Johnston, while working with his supervisor Dale Clements, lost his balance and slipped while standing on a water pipe. Johnston was able to right himself before falling. However, he felt excruciating pain in his lower back, through his hips and radiating into his thighs. Johnston told Clements that he hurt himself, though he initially believed the pain was related to his prior hip replacement surgeries. Though he injured his hips, Johnston told Clements that he was okay.
Shortly after the incident, Johnston scheduled an appointment with the physician that performed the hip replacement surgeries. He was then referred to Dr. James West, an orthopedic surgeon.
Approximately one year after his injury, Johnston went to the office of G.A. West’s company nurse and reported that he sustained an on-the-job injury in September of 2006. At that time, Johnston’s previous employer had stopped paying for his medical treatment after it discovered that he had injured his back on the job at G.A. West.
Dr. West had previously treated Johnston for his fractured coccyx. An MRI of the lumbar spine performed in 2005 following his prior on-the-job injury revealed mild disk bulging with mild nerve root compression. A second MRI performed in 2006 revealed a significant herniation of the disk at L4-5 and a central annular tear at L3-L4.
On September 24, 2006, Johnston left G.A. West’s employ because, he claimed, he could no longer perform his job. After staying out of work for approximately one year, Johnston held various other jobs including forklift operator, backhoe operator and excavator operator. Johnston explained that the jobs that he held following his 2006 injury were different than his previous employment because they were equipment-operator jobs. The jobs that he held prior to his injury were typically civil foreman jobs, a job that he described as “hard, labor-intensive work.”
At trial, Johnston testified that he did not think he could maintain gainful employment. Though he had worked in 2007 and 2008, Johnston stated that his back pain was getting worse. He did however admit that he had recently been injured in a 4-wheeler accident at the time of trial.
After a trial in August of 2010, the Circuit Court entered a judgment finding Johnston permanently and totally disabled. G.A. West appealed.
One of G.A. West’s arguments on appeal was that Johnston’s failure to reveal his hip replacement surgeries, his prescription drug usage, and his alleged history of back problems precluded his recovery under Alabama Code §25-5-51. At trial, Johnston admitted that he did not reveal his prior hip replacement surgeries or his Mobic prescription. The Court of Civil Appeals held that those admissions did not, in and of themselves, result in an automatic bar to Johnston’s receipt of workers’ compensation benefits. The court noted that, in order to successfully assert the defense of misrepresentation, G.A. West was required to prove (a) in the course of Johnston’s entering into the employment relationship; (b) G.A. West provided Johnston with the written warning set forth in §25-5-51; (c) Johnston knowingly and falsely misrepresented his physical or mental condition; (d) Johnston’s misrepresentation was made in writing; and (e) Johnston’s condition was aggravated or re-injured in an accident arising out of and in the course of his employment.
The court of appeals cited to medical records that indicated that Johnston had suffered from back problems in the past, though they were related to his severe hip problems. Johnston had stopped reporting back pain after each of his hip replacements. None of the medical records presented to the trial court indicated that Johnston was ever informed that he had any serious back-related injury or illness. The court of appeals held “we cannot conclude that Johnston’s failure to note that he made several complaints of back pain over a 20 year period amounted to Johnston’s ‘knowingly and falsely misrepresenting his physical…condition.’” The court reached the same conclusion as to Johnston’s failure to reveal the use of prescription medication and his prior hip replacement surgeries.
G.A. West also argued on appeal that Johnston failed to give proper notice of his injury. Though it was undisputed that Johnston did not give written notice of his injury, the court noted that written notice is not required where it is shown that the employer had actual notice of the injury. The court cited to its prior decisions holding that “knowledge on the part of a supervisory or representative agent of the employer that a work-related injury has occurred will generally be imputed to the employer.” In this case, Dale Clements witnessed the accident and heard Johnston exclaim that he was hurt. The Court of Appeals held that this evidence was sufficient to support the trial court’s judgment.
The Court of Appeals disagreed with G.A. West’s other contentions on appeal, including the argument that sufficient evidence was not presented to support an award of permanent and total disability benefits. The Court of Appeals affirmed the trial court’s award of permanent and total disability benefits.
I hope you have found the above summary helpful and informative. If you have any questions or would like copies of the cases referenced in this letter, please feel free to give me a call.
For a copy of this and other publications regarding recently released cases of interest in the State of Alabama, please feel free to visit our website at www.robertsasscociates.net/publications. If you would like to receive these updates via email, please send an email to sroberts@robertsassociates.net.
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