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. Essmyer testified that he has not tried to find any employment since he retired. He indicated he has not done so due to his condition and he does not know what he could do. He said he was on social security disability but that would be changed to retirement when he is the right age. He indicated that Mr. England told him he would try to help him find work if he was interested.

Mr. Turner is an employee of American Railcar and has been there for 12 years. He has been the Safety Administrator for the last 7 years and was in production for the 4 years before that. He knows Mr. Essmyer. He is aware of the April 7, 2014 injury, as he was Mr. Essmyer's first point of contact and managed his medical care.

Mr. Turner testified that American Railcar provided work for Mr. Essmyer after his surgeries. He indicated that they complied with any work restrictions. He testified that they provided a sedentary job shredding and allowed him to elevate his foot. Mr. Essmyer was returned to work with the same hours and the same rate of pay. Mr. Turner testified that they hoped to get Mr. Essmyer back into the workforce when he healed. He indicated that they would have found employment for him.

Mr. Turner was aware that the shredding job was not full time and that Mr. Essmyer did read books while at work. He testified that there was no discussion about terminating Mr. Essmyer's employment. He said American Railcar does not do that. He said that employees are accommodated while they heal and if permanent restrictions were assigned the employee would be given a job that would accommodate those restrictions. Mr. Turner testified that Mr. Essmyer would still have a job today. He testified that American Railcar has other sedentary jobs that do not require movement.

He indicated that he was surprised when Mr. Essmyer decided to retire, as he had not talked to him before then.

Dr. Weinlein performed right foot surgery in April of 2014. He discharged Mr. Essmyer on April 10, 2014, with Percocet and OxyContin. On April 18, 2014, Mr. Essmyer reappeared with pain complaints. An examination showed decompressed fractured blisters with some skin necrosis. Dr. Weinlein reported that the heel pad could die and that would require an amputation. Mr. Essmyer was prescribed Neurontin. He was to elevate his foot and quit smoking.

As of May 9, 2014, Dr. Weinlein's assessments were complex open right foot surgery with partial heel shuck, multiple metatarsal fractures, and a great toe proximal and distal phalanx fracture. He ordered that Mr. Essmyer should remain non-weight bearing and was to remain off

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

work. As of May 23, 2014, Mr. Essmyer asked to retry Neurontin, even though had trouble with that drug earlier. As of June 13, 2014, Mr. Essmyer reported less neuropathic pain; however, he had almost no sensation over the medial aspect of his heel pad and decreased sensation over the dorsum of his foot. His sensation over the plantar aspect of the foot was good. X-rays showed satisfactory alignment of the foot fractures except for the fifth metatarsal fracture. He was taking Neurontin and Percocet and was still off work. At that time, Dr. Weinlein did not think that further narcotics were necessary.

As of August 27, 2014, Mr. Essmyer's biggest complaint was his neuropathic pain about the medical aspect of the heel and medial aspect of his ankle and leg. X-rays showed a delayed union of the fourth and fifth metatarsal neck fractures. An Exogen unit was ordered due to the delayed unions. Mr. Essmyer was referred to a foot and ankle doctor.

Dr. Grear saw Mr. Essmyer on September 23, 2014, regarding accommodative footwear. His assessments were:

- third, fourth and fifth metatarsal fractures.

- delayed union.

- mostly asymptomatic.

- heel shuck injury with tibial nerve neuroma versus neurapraxia.

- foot and ankle edema.

- plantar fascia pain.

Dr. Grear ordered custom shoes and inserts. Therapy was also ordered.

In October 10, 2014, Mr. Essmyer was still complaining about neuropathic pain, but he was able to return to sedentary work. On October 29, 2014, Dr. Grear saw Mr. Essmyer again. At that time most of the pain was within the arch and on the posteromedial hind foot. Mr. Essmyer described neurapraxia or neuroma-type symptoms. Dr. Grear reported that the traumatic neuroma was the worse of his problems. Mr. Essmyer had a plantigrade foot with standing. Dr. Grear discussed possible surgical neuroma excision, but felt that Mr. Essmyer would have a normal foot over time.

As of December 2, 2014, Mr. Essmyer was improving, but still had pain around the tibial neuroma. By that time, Mr. Essmyer had seen a primary care doctor for depression, but was not on any medications. Dr. Grear reported full sensation in the lateral plantar nerve and full sensation in the medial plantar nerve. Dr. Grear recommended that Mr. Essmyer see Dr. Beard to be evaluated for hydro-dissection or injections around the neuroma. Mr. Essmyer was still on sedentary duty at that time.

Dr. Beard saw Mr. Essmyer on December 19, 2014. Dr. Beard reported significant allodynia over the arch and lateral portion of the plantar surface. His assessments were:

- post-traumatic entrapment of the medial calcaneal nerve and the superficial fibers of the medial plantar nerve without involvement of the nerve proper and

- entrapment of the saphenous nerve or at least some branches of it, considering that Mr. Essmyer had hyposthesia and allodynia in at least several nerve distributions.

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

Dr. Beard felt that Mr. Essmyer was a good candidate for ultrasound-guided injection hydro-dissection. As of February 4, 2015, Mr. Essmyer still had a lot of pain into the arch and bottom of the foot. Dr. Beard said that the allodynia and hyposthesia had resolved.

Dr. Roman saw Mr. Essmyer on February 6, 2015, for chronic pain in the right foot. At that time, narcotic medication was decreased. Mr. Essmyer was prescribed Cymbalta for clinical depression.

As of February 27, 2015, Mr. Essmyer told Dr. Beard that a lot of the pain had improved except he still had a tremendous amount of pain at the heel. Dr. Roman reported that Mr. Essmyer was frustrated and saw no point of doing sedentary duty at work and felt he should be at home. Mr. Essmyer was taken off sedentary duty and sent home. He was referred to a psychiatrist or psychologist.

Dr. Lochemes examined Mr. Essmyer on July 16, 2015. Dr. Lochemes said there was altered sensation from the proximal scar to the scar in the plantar aspect of the foot. Part of his assessment was status post crush injury with neuralgia.

Dr. Lochemes reported that Mr. Essmyer was at maximum medical improvement/MMI and could return to sedentary duty. Dr. Lochemes suggested more surgery for the neuralgia. He assessed a 12% permanent partial disability of the lower extremity or 5% permanent partial disability of the body. Dr. Lochemes said that Mr. Essmyer could return as needed. Dr. Lochemes limited Mr. Essmyer to sit-down work with some short ability to stand and walk throughout the workday.

Dr. Roman is a board certified anesthesiologist who evaluated Mr. Essmyer for pain management. Dr. Roman testified by deposition on February 3, 2017. American Railcar retained Dr. Roman to conduct an IME.

Dr. Roman testified that he focuses his career strictly on pain management. Dr. Roman first saw Mr. Essmyer on August 29, 2014. At that time, Mr. Essmyer had a non-union of his foot. Dr. Roman advised Mr. Essmyer to quit smoking as smoking can cause non-unions. In addition, Dr. Roman recommended occasional use of Hydrocodone and Gabapentin. At that time, he was giving Mr. Essmyer 60 pills a month-an average of 2 a day.

Dr. Roman testified that the Hydrocodone was for pain. The Gabapentin lessens the intensity that the nerves fire off-it can lessen and dampen pain that is purely neuropathic in nature.

As of February 6, 2015, Mr. Essmyer was prescribed Chantix to help quit smoking. Dr. Roman testified that Mr. Essmyer said he did not want to mess with that. At that time, Mr. Essmyer was still complaining of pain in his foot. Dr. Roman said that Mr. Essmyer seemed to be a little depressed. Dr. Roman put him on Cymbalta, as it has been therapeutic for osteoarthritic pain and has a mild antidepressant.

Dr. Roman testified that he deals with patients with chronic pain on a daily basis. He diagnosed depression and stated that when you look at any type of a chronic pain, it is by nature going to be depressing. He reported that a lot of patients can self medicate. They use opiates to treat depression because opiates can relieve "psychological pain" as well. He testified that he only

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

treats minor depression and refers patients for treatment for severe depression. He indicated that Cymbalta is the lowest dose they make—minimalist treatment, and he did not feel that Mr. Essmyer would have long-term depression; this was an adjustment period.

Dr. Roman saw Mr. Essmyer again on April 24, 2015, after he had undergone ablation treatment. He felt that treatment did not work. He recommended sedentary duty and increased his prescription from Hydrocodone to Oxycodone and authorized 70 pills a month. This was done, as there were continued pain complaints. Dr. Roman explained that he treats his patients and gives them the benefit of the doubt, but he has to be careful as they can become physically dependent. He explained that when a patient keeps complaining of pain, you look at things that might be tried to help—it is a risk v. reward.

Dr. Roman saw Mr. Essmyer again on November 17, 2015. He reported that the nerve ablation treatment did not prove successful and that Mr. Essmyer still had a lot of pain around the medial malleolus. Dr. Roman indicated that the bone behind the toe continued to be distorted and caused a lot of pain. He said that further surgery would not help. Mr. Essmyer’s medications were refilled but he was cautioned about opioid dependency. The final diagnoses were:

- posterior tibial neuropathy.

- right foot pain.

- crush injury of the right foot.

- current long-term use of medications.

- high-risk use of medications with opioids.

- MMI.

Dr. Roman continued Mr. Essmyer on Hydrocodone and Gabapentin. He testified that Mr. Essmyer was getting a lot of narcotics and was frustrated with the amount of narcotics he was getting. He further testified that he did not want to feed a dependency problem and determined that Mr. Essmyer was at MMI and was down to medical management.

As of January 16, 2016, Mr. Essmyer wanted an increase in his medications and was not happy with Dr. Roman’s care. He indicated that Mr. Essmyer had made repeated calls to the office and was dissatisfied with him and his staff. At that time, Dr. Roman determined that it was not in Mr. Essmyer’s interest to continue to prescribe him opiates and said he was at MMI. Dr. Roman testified that he would not recommend any further opiates at that time due to the type of behavior Mr. Essmyer was displaying. He indicated that he had gotten rude with Dr. Roman and the staff. He did indicate that Mr. Essmyer called later to apologize and said he wanted to come back and would not complain anymore.

At that point, Dr. Roman indicated he did not feel that the use of opiates on a regular basis was best for Mr. Essmyer’s long-term interest. He testified that when you look at the records and Mr. Essmyer’s behavior, his need for the opiates didn’t have anything to do with his pain problem anymore. His need for the opiates has to do with an addiction issue, a diversion issue, or an abuse issue, but it’s not necessary to treat his pain. He added that there are a lot of patients out there with the same injuries and they are not on opiates at all. When he was asked if Mr. Essmyer was depressed, he said that the entire time he saw him Mr. Essmyer took more of an

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

aggressive stance—with patients with depression their affect is pretty flat/withdrawn—they just don't have the energy to be aggressive—they are more withdrawn.

During cross-examination, Dr. Roman testified that he was not saying that Mr. Essmyer was not in pain, he is saying he did not need the opiates for pain. He indicated that Mr. Essmyer has a bad ankle so there is going to be some pain involved—but is it the pain that requires opiates?

Dr. Roman also stated that opiate prescribing is not indicated and actually could be dangerous to Mr. Essmyer because of some of the drug seeking behaviors he has displayed. He agreed that a person being in a lot of pain could make them aggressive.

Dr. Roman suggested that Mr. Essmyer's injury was such that you would typically see osteoarthritic pain. You have to differentiate between nerve type pain and traumatic type pain. Opiates are not the first line drug for neuropathic pain. He indicated that what we are really dealing with here is a nerve-type pain.

Dr. Krause is a board certified orthopedic surgeon who specializes in foot and ankle surgery. He was retained by American Railcar to conduct an IME. Dr. Krause saw Mr. Essmyer on January 4, 2016, and prepared a report of the same date. Dr. Krause testified by deposition on March 8, 2017. As part of his review, Dr. Krause took a history, performed a physical examination and reviewed medical records, including x-rays.

Dr. Krause reported that his main finding was symptom magnification. "When you tried to examine him, he would jump off the table and scream—regardless of where you touched him. And as you sat with him longer, you could kind of get him to relax and not magnify his symptoms as much." Dr. Krause reported that, "He is not happy with his foot." When Mr. Essmyer is pinned down, he indicates his pain is primarily posteromedially from his laceration and not so much in his forefoot. He is clearly interested in surgery.

Dr. Krause stated that:

- he had normal or full ankle and hind foot motion, although it was difficult to tell with the magnified symptoms.

- he had some tenderness.

- Mr. Essmyer was clearly magnifying his symptoms. If you touched him, you did not have to do anything and he would scream and moan. The symptoms were way out of proportion. When you distract him you can kind of put his ankle through a range of motion and see where he is tender—when he doesn't realize you are doing that, when you are kind of distracting him.

"But the magnified symptoms are significant because they portend a poor prognosis, indicating the patient's motivation is other than getting better".

Dr. Krause provided his Assessment:

- contusion right foot with an open would posteromedially, healed.

- right second through fifth metatarsal fractures, status post percutaneous pinning, healed.

- great toe proximal and distal phalanx fractures per Dr. Weinlein's report. I couldn't tell in the x-rays, but those were healed.

- third, fourth and fifth toe tuft fractures, those are the tips of the toes, those are all healed.

- symptom magnification.

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

Dr. Krause further provided his Recommendations:

- "The patient has symptom magnification on exam today."

- Mr. Essmyer is interested in a surgical procedure.

- He agreed with the other surgeons that surgery was not indicated.

- Any type of surgical treatment to include a realignment of the 4th MTP joint or an amputation portends a poor prognosis-I would make the argument that a 4th toe amputation is contraindicated.

- His symptoms seem to be related to his hind foot, where he had the laceration, and not in his forefoot, where he had the healed fractures.

- Mr. Essmyer did not have symptoms related to his tibial nerve that suggest a tarsal tunnel type surgery.

- Mr. Essmyer was on chronic narcotic use. This is being managed by his pain management physician. He agreed with the doctor's recommendation not to increase the pain medication. He said that increasing narcotics at that point was a bad idea-narcotics should be decreased. Chronic narcotic use is another indicator of a bad prognosis.

- He agreed with Dr. Lochemes that Mr. Essmyer is at MMI regarding his injury of April 7, 2014.

- Mr. Essmyer has a 10% permanent partial disability of the hind foot/150.

- Objectively, there is no reason for Mr. Essmyer to be on work restrictions, but given that he has been on work restrictions up until now and he thinks he can do full duty, work restrictions are not unreasonable. Work restrictions would be primarily sitting work with intermittent standing no more than 20 minutes per hour. He should not be working at heights or do excessive climbing.

Dr. Krause stated that the hind foot looks fine, it moves fine. He said he cannot explain Mr. Essmyer's symptoms of pain there other than that is where he had the laceration-if you have to say where most of the symptoms are coming from, you would say the hind foot, but you do not know how many symptoms he had since he is doing the whole symptom magnification.

Dr. Krause thought an FCE would give insight to what Mr. Essmyer could do, as an FCE is a nice way to get an independent set of eyes looking at it. Dr. Krause indicated that if the therapist says he really cannot do things then you take his word for it. If the therapist says he doesn't try, he has clear symptom magnification, his practice is to put them back on full duty.

During cross-examination, Dr. Krause agreed he was not holding himself out as having any expertise in psychology or psychiatry.

Employee Exhibit 8 is a letter dated February 10, 2017, that Dr. Okonski presented after reviewing medical records. He had not seen Mr. Essmyer at that time. Employee Exhibit 9 are medical records of Dr. Okonski dated November 21, 2017, that were prepared after Dr. Okonski saw Mr. Essmyer.

In his February 10, 2017 letter Dr. Okonski stated:

- His understanding was that Mr. Essmyer's "pain is primarily difficult in wearing a shoe due to elevation of the forth toe as the non-unions of the metatarsal have produced angulation deformity and his forth toe is now significantly elevated at the metatarsophalangeal joint with contraction at the proximal phalangeal joints".

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

- a possible consideration could be given to disarticulation amputation of this digit so that it would not create pressure during shoe wear.

- as to pain or tightness of the plantar fascia. The possibility of a plantar fasciotomy performed endoscopically may be of great benefit. It would be understandable that he may have plantar fascia tightness secondary to this injury.

- after reviewing medications, thought may be given to additional medication as he may have Reflex Sympathetic Dystrophy or Complex Regional Pain Syndrome.

After Dr. Okonski examined Mr. Essmyer on November 21, 2017, he once again addressed his pain status and made statements about possible further treatment options. He again stated that Mr. Essmyer's main source of pain seemed to be from the fourth toe rubbing against the top of his shoe and medial heel pain. Dr. Okonski suggested disarticulation amputation of his toe to alleviate pressure that he was sure would reduce the level of pain at that site. As to mid ankle pain he suggested that there was evidence of plantar fasciitis. He said that due to the extent of the wound, he has neurological involvement that may involve a branch of the posterior tibial nerve or it may be a larger structure. Dr. Okonski recommended medical care:

- EMG.

- nerve conduction studies to help ascertain his pain more appropriately in the heel.

- depending on the outcome of the testing, the problem could be addressed with a plantar fascia release and nerve decompression surgically.

- Mr. Essmyer should quit smoking prior to surgery.

Dr. Berkin was retained by Mr. Essmyer's counsel to conduct an IME. Dr. Berkin interviewed Mr. Essmyer on December 9, 2015, and prepared his IME report on December 26, 2015. He testified by deposition on January 11, 2017. Dr. Berkin's IME report was offered into evidence by counsel for Mr. Essmyer. His deposition was offered into evidence by counsel for American Railcar.

As part of his evaluation, Dr. Berkin interviewed Mr. Essmyer, performed a physical examination and reviewed medical records. In summarizing medical records that he reviewed, Dr. Berkin reported on comments of Dr. Beard who saw Mr. Essmyer on February 27, 2015. At that time Mr. Essmyer stated:

- he was feeling frustrated and depressed.

- he felt there was no point in performing sedentary duties at work.

- he felt he would be better off at home where he could be intellectually stimulated.

Mr. Essmyer was on social security disability when he saw Dr. Berkin. At that time, Mr. Essmyer reported that:

- he had 6/10 pain.

- he could walk short distances, 40-50 yards.

- he avoids weight bearing on his right foot.

- he had no prior injuries.

- he was taking Hydrocodone and Gabapentin.

- he smoked 1 1/2 packs of cigarettes a day and had been smoking for 40 years.

Dr. Berkin's Final impressions were:

- severe crush injury to the right foot with complex wound.

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

- fractures of multiple portions of the foot.

- heel pad avulsion of the right foot.

- neuroma of the medial calcaneal branch of the tibial nerve of the right foot.

- status post debridement and irrigation of complex wounds of the right foot, pinning of the right heel pad, closed reduction and percutaneous fixation of the second, third, and fifth metatarsal fractures of the right foot, and open reduction and percutaneous fixation of fourth fracture of the right foot.

Dr. Berkin also reported that due to chronic pain from his injury, Mr. Essmyer has developed post traumatic depression.

Dr. Berkin provided disability ratings:

- permanent partial disability of 55 percent of the right lower extremity at the ankle for the severe crush injury to the right foot resulting in metatarsal and phalangeal fractures complicated by a traumatic neuroma.

He also stated that Mr. Essmyer has additional disabilities due to post traumatic depression and recommended he be evaluated by a psychiatrist for appropriate treatment and to assess his degree of disability due to his emotional trauma. He further stated that his disability adversely affects his ability to be gainfully employed and interferes with his activities of daily living; and that he should be evaluated by a vocational rehabilitation specialist to determine if there are any jobs available for which he would be qualified.

Dr. Berkin provided Treatment Recommendations:

- use of non-steroidal anti-inflammatory medication and muscle relaxants for control of his symptoms, and treatment for his chronic pain by a pain management specialist.

- participation in a home exercise program.

- referral to a psychiatrist for evaluation and treatment of depression and emotional issues.

- avoid standing for longer than 10 or 15 minutes or walking for distances greater than 40 to 50 yards. He should avoid climbing ladders or stairs, working at heights above ground level, and walking on uneven surfaces.

- he should avoid squatting, kneeling, "stopping", turning, twisting, and climbing.

- he should remain as active as possible.

At his deposition, Dr. Berkin was initially questioned by counsel for American Railcar.

Dr. Berkin did not test how far Mr. Essmyer could walk—he only reported what Mr. Essmyer told him—it was a subjective history.

Dr. Berkin indicated that:

- he did not review any records regarding radio-ablation procedure.

- he did not review any records from a psychologist or psychiatrist. He said that his opinion regarding depression came from what one of the doctors said, and with the amount of pain he was having, it would not be unusual for him to be depressed.

13

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

Dr. Berkin reported that Mr. Essmyer did not bring a cane with him and did not walk with a cane-he walked with a limp. He said that Mr. Essmyer could not stand on his heels due to pain, not balancing.

Dr. Berkin agreed that he had not seen Mr. Essmyer for over one year prior to his deposition. He agreed that Mr. Essmyer is doing a lot better now, but he is still recommending treatment for depression as he thought that for the type of injury he had, depression would not be unusual. He reported that he thought Mr. Essmyer was in a lot of pain by virtue of the fact he seeing a pain management doctor and he is taking Gabapentin and Hydrocodone. He agreed that other than Mr. Essmyer having pain, there was nothing in his exam that would note depression other than a depression recommendation in the record that was 2-3 years old.

Dr. Berkin was asked if he had any objections with Mr. Essmyer working in general if he could find something within his work restrictions. He responded that due to the amount of pain he had, his symptoms and limitations from his injury would adversely affect his ability work. At that time, Dr. Berkin recommended that Mr. Essmyer be seen by a vocational rehabilitation doctor to determine if there is work available for him. Dr. Berkin was not aware that Mr. Essmyer worked for several months following his injury and was not aware that he had problems with his back.

Dr. Berkin also agreed that he did not see Dr. Krause's records where he said that Mr. Essmyer was at MMI with no recommendations for additional treatment. He also testified that he did not note drug seeking behaviors of Mr. Essmyer in the records.

Mr. England was retained by American Railcar to evaluate the Mr. Essmyer's employability in the open labor market. Mr. England saw Mr. Essmyer on May 4, 2016. Mr. England personally interviewed Mr. Essmyer, performed some testing and reviewed medical records. He prepared a report dated May 23, 2016, and testified by deposition on January 4, 2017.

Mr. England reviewed medical records and reports of Drs. Weinlein, Grear, Beard, Roman, Lochemes and Krause. Some of the physicians were actual treaters, while others provided evaluations and did not treat.

Mr. England reported that:

-Mr. Essmyer was put out with Dr. Krause, as he did not believe that he was concerned about him and was not fair about his evaluation and recommendations. At that time, Mr. Essmyer indicated that he thought that additional treatment for his fourth toe was being denied because of the cost. He believed that additional treatment of the fourth toe would be correctable and this would help with a great deal of his functioning.

-Mr. Essmyer takes Hydrocodone three times a day for pain and Gabapentin three times a day for nerve pain.

-his primary complaint is pain in his foot and ankle.

-he uses a cane as he feels his balance is not good.

-he is a widower.

-he completed 10th grade and dropped out to enter military where he received an honorable discharge.

14

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

Mr. England opined that Mr. Essmyer:

- Has transferable skills down to a medium level of exertion but not below that.

- Has no transferable skills at the sedentary level of exertion.

- His Wide-Range Achievement Test scores placed him at 10th grade on reading and eighth grade on math. These would be adequate for a wide variety of positions in the open labor market.

- Would certainly be capable of learning more skills if he had an interest in doing so.

- Has talked to the Career Center a few years ago during a layoff about retraining, but rejected such things as computer classes, as he said he simply had no interest in learning about them.

Mr. England also reported that:

- Dr. Grear approved Mr. Essmyer for sedentary duty as of December 2014.

- Dr. Lochemes said Mr. Essmyer could work at sedentary duty.

- Dr. Krause said he thought Mr. Essmyer could work at sedentary duty.

- Dr. Berkin recommended that Mr. Essmyer avoid standing more than 10-15 minutes or walking more than 40-50 yards. He felt that Mr. Essmyer should avoid climbing ladders or stairs and working at heights or above ground level. In addition, he was to avoid squatting, kneeling, stooping, turning, twisting and climbing. He was to be as active as possible, but to pace himself and take frequent breaks to avoid exacerbation of symptoms.

Mr. Essmyer told Mr. England that he felt capable of walking up to 400 yards and being on his feet for 20-25 minutes at a time. He felt capable of lifting light amounts of weight and said that he sits most of the day elevating his foot.

Mr. England's final conclusion was that Mr. Essmyer would not be able to return to the type of work he has in the past, but under the various doctors' restrictions would not be precluded from jobs that are in the sedentary range of exertion.

Mr. England summarized his opinion stating:

"While he is certainly limited to no more than a sedentary level of exertion, there is no medical evidence I have seen that would preclude him from seeking the types of sedentary positions I have listed above or others. I encouraged him to consider the possibility of vocational rehabilitation if he decides he would like to look at some options. He told me that because of the lack of work available at a sedentary level with his last employer, he decided to go ahead and retire in June of 2015. At his attorney's recommendation, he then applied for Social Security Disability and was awarded that instead. As I explained to him, he would still be able to work and earn some money over and above that if he has an interest in doing so."

Dr. Magrowski was retained by Mr. Essmyer's counsel to determine his vocational potential to compete in the open labor market for a job. He interviewed Mr. Essmyer on February 10, 2016, prepared a report dated February 18, 2016 and testified by deposition on January 9, 2017.

Dr. Magrowski interviewed Mr. Essmyer and reviewed medical records as part of his evaluation. He testified that he did not testing, as he did not feel it was necessary and he is not qualified as he is not a psychologist.

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

He testified that:

- Mr. Essmyer was a high school graduate and has equivalencies close to high school.

- Computer classes were suggested to him years ago but that was rejected as he said he had no interest. Mr. Essmyer reported that he has been anything that has to do with electronics.

- At the time of his evaluation, he thought that Mr. Essmyer was interested in seeking employment at that time if he could. However, he said that Mr. Essmyer is a very bitter man who feels that he has not been treated right by his company. He also stated that with Mr. Essmyer's limitations it would be doubtful if he would accept retraining now, but he thinks he would attempt it.

Dr. Magrowski testified that he did not see in the medical records that Mr. Essmyer had to elevate his foot—but he told Dr. Magrowski this and complained that the records did not say so. Dr. Magrowski agreed that elevating is not something Mr. Essmyer has to do, it is his personal preference. He also testified that a cane was not recommended by any of the doctors.

Dr. Magrowski was uncertain on what records he had reviewed but thought that he did not review any records of treatment following Mr. Essmyer's release from either Dr. Lochemes or Dr. Krause. He said if they were not listed in his report, he did not see them. He also agreed that he did not review any records in relation to treatment for depression and Mr. Essmyer never gave him such a history when he interviewed him. He stated that he does not know if Mr. Essmyer was ever diagnosed with depression but he knows that he was very angry when he interviewed him.

Dr. Magrowski further testified that he did not know that Dr. Berkin's limitations regarding squatting etc. applied to Mr. Essmyer's back or ankle. He said that Mr. Essmyer did not refer to back pain much. He was more upset about his leg and the swelling and pain and that nobody was helping him, and he didn't have the money to get help. He said that Mr. Essmyer may have had a back brace but he was able to work with it. He said it could be a very slight hindrance or obstacle to employment or reemployment. He does not recall Mr. Essmyer missing any time from work prior to his accident due to his back.

Dr. Magrowski also testified that:

- He would not recommend Mr. Essmyer being a student as there is too much going on for him to consider it.

- In the long run, he does not think Mr. Essmyer would get a job. He might try it but he does not see him being successful.

- He does not see Mr. Essmyer dealing with customers due to his daily pain and complaints.

Dr. Magrowski speculated that he thinks part of the reason that Mr. Essmyer is bitter is that he looked for work and did not find any.

- He thinks Mr. Essmyer would be working today if he could.

- He did not see any medical records regarding drug seeking behaviors.

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

The employee's position is that he is permanently and totally disabled as a result of his April 7, 2014 accident where he injured his right foot. He claims that he is unemployable in the open labor market. The employee also claims that he is entitled to receive future medical care to cure and relieve him from the effects of his injury.

The employer-insurer's position is that the employee is not permanently and totally disabled as a result of his April 7, 2014 accident. The employer-insurer agrees that the employee had a compensable accident wherein he injured his right foot; however, they maintain that the employee is employable in the open labor market and thereby only suffers from a permanent partial disability. They also maintain that he is not entitled to receive any future medical care.

In support of his position, the employee offers evidence in form of his testimony, treatment records and the expert opinions of Dr. Berkin, Dr. Okonski and Dr. Magrowski. In support of its position, the employer-insurer offers evidence in the form of statements made by the employee, the records and opinions of the treating doctors, and the expert opinions of Dr. Roman, Dr. Krause and Mr. England.

When you analyze the evidence, you find that the principle reason that Mr. Essmyer cannot perform any work is due to his complaints of pain in his right foot. There is no question that he had a serious injury to his foot, but are the problems that he has so serious to equate to a permanent total disability such that he is unemployable in the open market? When you analyze the evidence further, there are many things that bring his claim under scrutiny.

Employer-Insurer Exhibit H is the form that Mr. Essmyer filled out and signed when he decided to leave his employment with American Railcar on June 25, 2015. In his "Resignation Statement" he gives his reason for resigning as "Retire." The document contains no other reasons that required him to leave his employment. There was absolutely no indication that he could not perform his duties due to pain or any other reason; or that he was retiring due to pain. When he prepared this document all surgeries had been completed. He worked at this job for around six months before he decided to retire.

At trial, Mr. Essmyer testified that he left his job because he was bored. The Court asked him if he left because he was bored or because he could not do the job. His response was he was bored. While Mr. Essmyer made other statements regarding pain, pain was not included as a factor in his response to that inquiry. The job that the employer had him do was shredding paper. He said he had enough of that job and retired. He stated that he would rather be sitting at home doing nothing than sit at work and do nothing. He also testified that he was not forced to retire, he left voluntarily. He further testified that the medication that he was taking while on sedentary duty did not affect his ability to do his job. Further, according to Dr. Berkin, Mr. Essmyer stated that he saw no point in performing sedentary duties at work and thought he would be better off at home where he could be intellectually stimulated.

17

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

Mr. Turner testified that it is their policy to accommodate medical restrictions and they hoped to get Mr. Essmyer back into the workforce. He testified that if permanent restrictions are assigned to an employee, they would be given a job that would accommodate those restrictions.

There is also other evidence that relates to Mr. Essmyer's reasoning for leaving his employment. According to Dr. Roman, Mr. Essmyer said he was frustrated and saw no point of doing sedentary duty at work and felt he should be at home.

There is no question that Mr. Essmyer cannot return to the level of work that he was performing prior to his accident. But, the experts have provided differing opinions as to whether or not he can perform sedentary type work or any work.

It is interesting that one party offered the deposition testimony of Dr. Berkin while another offered his report. Overall, Dr. Berkin's opinion was that Mr. Essmyer's ability to work would be adversely affected by the amount of pain he is in. He supports the position that Mr. Essmyer is permanently and totally disabled. However, he did recommend that he be seen by a vocational expert to see if there is work available for him. Dr. Berkin stated that he did not note drug seeking behaviors in Mr. Essmyer's records.

Dr. Magrowski's final opinion is that in the long run he does not see Mr. Essmyer as being successful in getting a job. He testified that Mr. Essmyer is very bitter and feels that his company did not treat him right. He suggested that Mr. Essmyer would be working if he could; but also indicated that he rejected any efforts at retraining. Dr. Magrowski's opinion is adversely affected by his statements that he did not see any records about drug seeking behaviors and he is uncertain about what records he reviewed.

Mr. England's opinion was that Mr. Essmyer was capable of performing sedentary duty. He testified that Mr. Essmyer has transferable skills down to a medium level of exertion but not a sedentary level. He also testified that Mr. Essmyer's educational level and the ability to perform a sedentary job are adequate if he had any interest in doing so. Mr. Essmyer was offered training on more than one occasion. He rejected any such offers. Overall, Mr. Essmyer has made it quite clear that he does not want to work.

Mr. England summarized his opinion and stated that while Mr. Essmyer is limited to a sedentary job, there is no medical evidence that precludes him from pursuing such positions. He stated that under the various doctor's restrictions, Mr. Essmyer would not be precluded jobs that are in the sedentary range of exertion.

In addition to the concerns about the level of performance that Mr. Essmyer can do, there are other concerns about his pain levels and use of medication.

As of 2014, Dr. Weinlein did not think that further narcotics were necessary. Dr. Lochemes reported that Mr. Essmyer was at MMI and could return to sedentary duty. Dr. Roman testified about opiate addiction and was concerned about Mr. Essmyer's opioid dependency. His testimony was that Mr. Essmyer's "need" for opiates didn't have anything to do with his pain problem. He testified that he is not saying that Mr. Essmyer does not have some pain, but it does not justify opioids. He also placed Mr. Essmyer at MMI. Dr. Krause was very critical of Mr.

Employee: Leon S. Essmyer, Jr.

Injury No. 14-029801

Essmyer. He examined Mr. Essmyer and formed very strong opinions about symptom magnification. He indicated that his symptoms were way out of proportion and that when Mr. Essmyer was distracted you could examine his ankle and get a better sense of his situation. He further testified that, "the magnified symptoms are significant because they portend a poor prognosis indicating the patient's motivation is other than getting better." Dr. Krause agreed that the use of narcotic medication should be reduced. He testified that he saw no objective reason why Mr. Essmyer needed to be on work restrictions. He thought an FCE needed to be performed.

When you compare the experts' opinions to all of the underlying evidence, the Court finds that the combined opinions of the treating doctors, Dr. Krause and Mr. England are more persuasive and therefore more credible than the combined opinions of Dr. Berkin and Dr. Magrowski. The statements that the employee has made have also adversely affected his testimony that he is unable to work and the degree of disability that he had.

Based on a consideration of all of the evidence, the Court finds that Mr. Essmyer has not presented clear and convincing evidence that he is unemployable in the open labor market. The Court rejects the position that he is unemployable in the open labor market. The Court finds that the evidence supports a finding of permanent partial disability.

While the Court rejects permanent total disability, Mr. Essmyer certainly has provided evidence that he had a serious injury to his right foot. The Court finds that Mr. Essmyer sustained a 40% permanent partial disability to his right foot at the 150 level. The employer-insurer is ordered to pay such benefits to Mr. Essmyer.

Future Medical

The Court has found that the evidence does not support a finding of permanent total disability. However, the Court ordered 40% permanent partial disability of the employee's foot at the 150 level.

The Court has also noted that there have been some strong opinions regarding symptom magnification and opioid abuse. Regardless of whether such abuse has occurred, the Court has acknowledged that Mr. Essmyer had a serious injury to his foot and underwent several surgeries. Whether or not the use of opiate medications are justified or not, the employee is still in need of some form of pain management. There is evidence supporting this position.

Section 287.140 RSMo. States that the employer is to provide such medical treatment as is necessary to cure and relieve the effects of the injury. Under Section 287.140.1 RSMo, "the employee shall receive and the employer shall provide such medical, chiropractic, and hospital treatment, including nursing, custodial, ambulance, and medicines, as may be reasonably be required after the injury or disability, to cure and relieve from the effects of the injury."

Based on a consideration of all of the evidence, the Court orders that the employer-insurer provide appropriate medical care that the medical professionals feel is warranted given Mr. Essmyer's medical condition and needs.

19

Sam W. Eveland, attorney at law, is allowed a fee of 25 % of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

Made by:



Administrative Law Judge

Division of Workers' Compensation