Leon Essmyer v. American Railcar Industries

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 14-029801

**Employee:** Leon S. Essmyer, Jr.

**Employer:** American Railcar Industries

**Insurer:** Sentry Insurance

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated July 26, 2018. The award and decision of Administrative Law Judge Gary L. Robbins, issued July 26, 2018, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this **9th** day of January 2019.

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**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Attest:**

**Robert W. Comer, Chairman**

**Reid K. Forrester, Member**

**Curtis E. Chick, Jr., Member**

**Attest:**

**Curtis E. Chick, Jr., Member**

**Secretary**

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

ISSUED BY DIVISION OF WORKERS' COMPENSATION

FINAL AWARD

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

Dependents: N/A

Employer: American Railcar Industries

Insurer: Sentry Insurance

Appearances: Sam W. Eveland, attorney for the employee.

Hans K. Amann, attorney for the employer-insurer.

Hearing Date: April 18, 2018

Closed: May 4, 2018

Checked by: GLR/kg

SUMMARY OF FINDINGS

1. Are any benefits awarded herein? Yes.

1. Was the injury or occupational disease compensable under Chapter 287? Yes.

1. Was there an accident or incident of occupational disease under the Law? Yes.

1. Date of accident or onset of occupational disease? April 7, 2014.

1. State location where accident occurred or occupational disease contracted: Dunklin County, Missouri.

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.

1. Did the employer receive proper notice? Yes.

1. Did accident or occupational disease arise out of and in the course of the employment? Yes.

1. Was claim for compensation filed within time required by law? Yes.

1. Was the employer insured by above insurer? Yes.

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

1. Describe work the employee was doing and how accident happened or occupational disease contracted: Metal fell on the employee's right foot.

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: Right foot.

1. Nature and extent of any permanent disability: See Award.

1. Compensation paid to date for temporary total disability: $19,380.53

1. Value necessary medical aid paid to date by the employer-insurer: $125,061.73

1. Value necessary medical aid not furnished by the employer-insurer: N/A.

1. Employee's average weekly wage: 711.15

1. Weekly compensation rate: 474.10 per week for temporary total and permanent total disability. $446.85 per week for permanent partial disability.

1. Method wages computation: By agreement.

1. Amount of compensation payable: See Award.

1. Second Injury Fund liability: N/A.

1. Future requirements awarded: See Award.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the employee: Sam W. Eveland.

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

On April 18, 2018, the employee, Leon S. Essmyer, Jr., appeared in person and with his attorney, Sam W. Eveland for a hearing for a final award. The employer-insurer was represented at the hearing by their attorney, Hans K. Amann. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. American Railcar Industries was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Sentry Insurance.
2. On April 7, 2014, Leon S. Essmyer, Jr. was an employee of American Railcar Industries and was working under the Workers' Compensation Act.
3. On April 7, 2014, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was 711.15, resulting in a compensation rate of 474.10 per week for temporary total and permanent total disability benefits and $446.85 per week for permanent partial disability benefits.
7. The employee's injury was medically causally related to his accident.
8. The employer-insurer paid 125,061.73 in medical aid.
9. The employer-insurer paid 19,380.53 in temporary disability benefits.
10. The employee had no claim for previously incurred medical bills.
11. The employee had no claim for mileage.
12. The employee had no claim for any temporary disability benefits.
13. The parties agreed that the employee reached MMI as of January 4, 2016.

1. Future Medical Care.
2. Permanent Partial Disability.
3. Permanent Total Disability.

The following exhibits were offered and admitted into evidence:

1. Medical records of Shawn L. Berkin, D.O.
2. Medical records from St. Bernard's Medical Center.
3. Medical records.
4. Medical records from Campbell Clinic Orthopedics.
5. Medical records of J. Carlos Roman, M.D.

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

1. Medical records of John J. Lochemes, M.D.

1. Deposition of Jeffrey F. Magrowski, Ph.D.

1. Medical report of Craig D. Okonski, D.P.M.

1. Medical records of Royalton Foot and Ankle Associates.

Employer-Insurer Exhibits:

A. Wage statement

B. Billing records/J. Carlos Roman, M.D.

C. Medical records of J. Carlos Roman, M.D.

D. Deposition of J. Carlos Roman, M.D.

E. Deposition of John O. Krause, M.D.

F. Deposition of James M. England, Jr.

G. Deposition of Shawn L. Berkin, D.O.

H. Resignation Form

RULINGS ON OBJECTIONS:

At trial, the attorney for the employer-insurer objected to Employee Exhibits 1, 8, and 9.

Employee Exhibit 1 is the IME report and CV of Dr. Berkin. The employer-insurer objected to this exhibit stating that it lacks foundation and was not a complete medical report under Section 287.210 RSMo. The Court notes that it was the employer-insurer, not the employee who introduced the deposition of Dr. Berkin into evidence (El Exhibit G). The Court also notes that Dr. Berkin's IME included a list of medical records that were reviewed. The Court overrules the employer-insurer's objections. Employee Exhibit 1 is admitted into evidence.

Employee Exhibit 8 is a letter of Dr. Okonski with attached medical treatment records. Employee Exhibit 9 is the record that Dr. Okonski made when he evaluated the employee and his CV. The employer-insurer objected to these exhibits stating that they were not a complete medical record, lacked foundation and is a treatment note, not a medical report. In the Court's reading of Exhibit 8, the Court did not find any indication that Dr. Okonski provided any treatment. As stated, the purpose of his involvement was to determine if there was a need for additional medical care. Neither side took the deposition of Dr. Okonski. When the Court read Exhibit 9, the Court found it to be the actual report of examination that Dr. Okonski made when he evaluated the employee for additional medical care. The Court overrules the employer-insurer's objections. Employee Exhibits 8 and 9 are admitted into evidence.

STATEMENT OF THE FINDINGS OF FACT AND RULINGS OF LAW:

STATEMENT OF THE FINDINGS OF FACT:

Leon S. Essmyer, the employee, and Lloyd A. Turner were the only witnesses to personally testify at trial. All other evidence was presented the form or written records, medical reports or deposition testimony.

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

The parties stipulated that Mr. Essmyer injured his right foot on April 7, 2014. While he was working for American Railcar, a heavy stack of metal fell on his right foot. He was taken to the emergency room by coworkers and from there received a significant amount of medical care that is summarized infra.

Mr. Essmyer was 61 years old at the time of his injury. As of the date of trial, he was 65 years old. He completed the tenth grade in high school and then dropped out to join the military. He received his GED. He was honorably discharged with no service-connected disabilities.

Mr. Essmyer's wife passed away years ago. He has four children who are all adults and independent.

After his surgeries, Mr. Essmyer returned to sedentary work with restrictions. He testified that initially his employer had him shredding paper. He performed that job all day long for about 5 months. If he had nothing to do, he was allowed to go to the conference room and read books. He said he had enough of that and retired. He testified that he was allowed to prop up his foot if he wanted to. He indicated this made his foot feel better.

Mr. Essmyer testified that he retired on June 27, 2015. He indicated that:

- his employer knew of his restrictions and provided sedentary work.

- no one told him that his job was in jeopardy or that he would not have employment.

- he was not told he had to retire.

- no one told him that he could no longer work after June 27, 2015.

- he left his job voluntarily. He was not fired.

- he completed his sedentary work and then it ended. He does not know if his employer would have given him more work.

- he was told that he would be given more shredding when it was needed.

- the medication he was taking while he was on sedentary duty did not affect his ability to do his work.

Mr. Essmyer testified that he left his job because he was bored. The Court asked him if he left his sedentary job because he was bored or because he could not do the job. His response was that he left because he was bored. Pain was not mentioned as a reason for leaving his employment. He indicated that he would rather be sitting at home doing nothing than sit at work and do nothing.

Mr. Essmyer testified that he is presently taking Hydrocodone for pain and Gabapentin to calm his nerves. He is currently in pain management but he could not remember the doctor's name. He presently uses a cane; however, no doctor prescribed it. He said he already had one and began using it as he has issues with balance—it takes pressure off his foot.

Mr. Essmyer testified that he has pain in his foot and leg. He further testified that:

- every day is the same.

- he gets spasms in his foot that keeps him from walking.

- sometimes his foot flares up for no reason.

- he has plantar fasciitis that hurts. He said it cannot be treated.

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

- He has to get off his foot and elevate it. He does this 10-12 times a day and it helps the pain.

- He also has tightness.

- The 4th toe is crooked and bends.

- Pain is at the bottom of his foot and arch.

- On an average day, he does very little. He watches television and walks around a little bit. If he does more his foot hurts.

- He lies down and elevates his foot.

- He limits his driving.

Mr. Essm