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Johnston v. Delta Coating and Fireman's Fund Insurance Co.6/26/2002
REVERSED AND REMANDED
The plaintiff, Gill Johnston, has appealed the trial court's ruling in favor of the defendants, Delta Coating and Fireman's Fund, in this worker's compensation case. For the reasons that follow, the judgment of the trial court is set aside and this matter is remanded to the trial court.
FACTS:
The plaintiff was the only witness to testify at trial. He testified that he had been employed as a sandblaster for 16 to 17 years and had been working for Delta Coating for two years at the time of this incident. The incident occurred on December 30, 1999, when plaintiff was sandblasting pipe elbows. He testified that he had to pick up the elbows to place them on a pallet in order to properly perform the sandblasting. Mr. Johnston estimated the elbows weighed 65 to 100 pounds each. He picked up two elbows without difficulty. Upon lifting the third elbow, he felt a pull in his back. He testified that when he picked up the fourth elbow, "something just went in my back." He further explained "I fell forward, with the weight of the . . . elbow in my hand." He was unable to breathe and stayed on the ground for some 15 to 20 minutes. The foreman on the job, Kenny Hartman, came to the scene and took plaintiff to see Dr. Clark. Plaintiff testified that Dr. Clark diagnosed a severe cervical strain and possible ruptured disc, and prescribed pain medication, muscle relaxers, and an anti-inflammatory drug.
Plaintiff testified that Kenny told him to stay home until January 2, 2000. He continued to experience pain and on January 13, 2000, he was examined by an orthopedist, Dr. Gordon Nutik. After seeing Dr. Nutik four to five times, he was released to return to light duty work. Plaintiff testified that he tried to go back to work on January 30, 2000, but there was no such thing as light duty at Delta. He had to climb stairs, lift heavy hoses, and carry five gallon buckets of paint. A couple of weeks later, he spoke to Joe Marshall (presumably a supervisor at Delta) about his difficulty in performing this type of work. Plaintiff testified that Mr. Marshall told him the only light duty they could offer was "running" but plaintiff was unable to do this because he did not have a driver's license. Plaintiff admitted that he had not sought other employment. Because of the pain he experienced at work, he did not return to work after January 30, 2000.
Plaintiff continued to experience pain and Dr. Nutik referred him to Dr. Applebaum, a neurosurgeon. Plaintiff testified that he was told by Dr. Applebaum that nothing was wrong with him and he should go back to work, despite that fact that an MRI showed a herniated disc between the sixth and seventh cervical disc space. In an effort to get some relief from his pain, plaintiff sought treatment from Dr. E. W. Sudderth on March 3, 2000. Plaintiff explained that Dr. Sudderth performed a more extensive examination than that of Drs. Nutik and Applebaum. During this examination, Dr. Sudderth detected a hernia in the left groin area. Plaintiff testified that this area had been hurting for a month or two after the incident. Plaintiff testified that Dr. Sudderth recommended certain tests be performed, but these were not performed because the worker's compensation insurance carrier, Fireman's Fund, refused to pay for them. He testified that he would like to have this hernia repaired. Plaintiff further testified that he had to stop seeing Dr. Sudderth because Fireman's Fund would not pay for the visits.
Plaintiff also testified that he was examined by Dr. Katz and Dr. Smith, both of whom suggested he have a functional capacity evaluation and attend a work hardening program. These recommendations were not followed
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