Man should've filed for workers' comp before suing, company says

By Kelly Holleran | Apr 26, 2010

CHARLESTON -- A Williamson man and his wife have filed suit against GCR Tire Center and Phoenix Coal-Mac Mining, alleging the man sustained severe injuries after a side rim slammed into him.

GCR Tire Center, however, is contesting the couple's complaint, saying the man should have filed for workers' compensation before initiating a lawsuit.

In their complaint, Julian and Miranda Ooten claim Julian Ooten worked for GCR as an off-the-road tire changer and maintenance man and usually worked on tires used in mining operations.

On Oct. 20, 2008, Julian Ooten was working at a mine site commonly referred to as Holden No. 22 and was using a tire service truck manufactured by Western Star to perform his duties. Attached to the truck was a Fleet Equipment crane and tire positioner. The crane's boom was mounted on a rotating base, allowing it to swing to either side of the truck and to be raised and lowered, according to the complaint.

However, the crane on the truck in Julian Ooten's possession lacked a gripper palm extension, which is an important tool used to grip tires and other objects, the suit states. Although Julian Ooten and his co-workers complained of the missing gripper palm extension, GCR refused to decommission the truck and instead ordered its workers to use crib blocks as a substitute, the complaint says.

When Julian Ooten was ordered to place side rims inside off-the-road tires on Oct. 20, 2008, he claims to have discovered that the remaining driver's side palm had detached from the boom. He and his foreman, Chester Brewer, repaired the fallen palm to the boom by using a pin within Coal-Mac's car yard, according to the complaint.

Still, Julian Ooten was nervous about using only one gripper palm extension and requested that Brewer find a second gripper palm extension so Julian Ooten could properly grasp the side rims, the suit states. However, Brewer could not located a second gripper palm extension and instead ordered the use of a crib block as a substitute, the complaint says.

"The Plaintiff complained to Mr. Brewer that he had never been trained to use crib blocks for gripping objects," the suit states. "After Plaintiff voiced his safety concerns, Mr. Brewer attempted to use the crib block himself to grip and lift the side rim. However, the crib block did not grip and secure the side rim and the side rim fell out between the crib block and left side palm."

Despite his failed attempts, Brewer ordered Julian Ooten to continue using the crib block, then left the work site, Julian Ooten claims.

"On or about October 20, 2008, the Plaintiff had positioned the boom/positioner attachment for purposes of moving a side rim," the suit states. "As the Plaintiff swung the boom/palm assembly, the side rim fell out from between the crib block and left side palm, bounced off of the ground and violently fell onto the Plaintiff causing him to be slammed into the ground and which resulted in severe and permanent injuries."

Because of the incident, Julian Ooten claims he experienced extreme pain, suffering, mental anguish, permanent physical impairment, annoyance and inconvenience; lost wages, benefits, his future earning capacity and his ability to enjoy life; and incurred medical costs and severe and permanent scarring and disfigurement, according to the complaint.

Miranda Ooten claims she lost her husband's society, companionship and consortium because of the incident.

Julian Ooten blames GCR and Phoenix Coal-Mac Mining for causing his injuries, saying they failed to provide him with proper equipment, failed to provide him with proper training, failed to perform a job safety analysis to identify possible workplace safety hazards, failed to take appropriate steps to protect him from injury, failed to provide any supervision and failed to have a qualified and competent person on site during his workplace activities.

In his complaint filed March 5 in U.S. District Court for the Southern District of West Virginia, Julian Ooten alleges deliberate intent against GCR and unsafe workplace against Coal-Mac Mining.

GCR claims it is guilty of no wrongdoing and would like to see the court dismiss the Ooten's complaint against it, in part because it says Julian Ooten should have filed for workers' compensation instead of initiating a lawsuit against it.

In addition, although GCR admits that it sent Julian Ooten to work at the Holden site and that Brewer helped him to repair a palm extension, the company denies Julian Ooten's remaining allegations against it.

"The defendants deny that they, or any of their agents, employees or representatives, are guilty of any act or omission constituting a 'deliberate intention' to cause injury to the plaintiffs or to subject the plaintiff Julian Ooten to any unsafe working condition, particularly any condition giving rise to a strong probability of serious injury or death," the suit states.

GCR is asking the court to dismiss Julian Ooten's complaint against it and to be awarded costs, expenses, attorneys' fees and other relief the court deems just.

The Ootens will be represented by Brett J. Preston and C. Benjamin Salango of Preston and Salango in Charleston and by J. Kristopher Cormany of Cormany Law in Charleston.

GCR will be represented by John R. McGhee Jr. and Howard G. Salisbury Jr. of Kay, Casto and Chaney in Charleston.

The case has been assigned Judge Joseph R. Goodwin.

U.S. District Court case number: 2:10-246

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