Graycor Industrial v. Metz

• Decision Date: 14 April 2004
• Docket Number: No. 93A02-0308-EX-721.,93A02-0308-EX-721.
• Parties: GRAYCOR INDUSTRIAL, Appellant, v. Anthony METZ, Appellee.
• Court: Indiana Appellate Court

806 N.E.2d 791

GRAYCOR INDUSTRIAL, Appellant, v. Anthony METZ, Appellee.

No. 93A02-0308-EX-721.

Court of Appeals of Indiana.

April 14, 2004.

Rehearing Denied June 21, 2004.

James E. O'Gallagher, Amy N. Kendt, Kopka, Pinkus & Dolin, Crown Point, IN, Attorneys for Appellant.

Patrick A. Schuster, Crown Point, IN, Attorney for Appellee.

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Graycor Industrial (Graycor) appeals from the determination of the Worker's Compensation Board (the Board) affirming an award of benefits to Anthony Metz.

We affirm.¹

GRAYCOR'S ISSUES

1. Whether the Board erred by failing to rule upon Graycor's motion for leave to submit additional evidence and if so, whether consideration of the additional evidence would have required a determination that Metz's injuries did not arise out of and in the course of his employment.

2. Whether the evidence submitted at the hearing before the Single Member, without consideration of the additional evidence, supports the Board's determination that Metz's injuries arose out of and in the course of his employment.

METZ'S ISSUE

3. Whether Graycor's appeal is frivolous, vexatious, in bad faith, and undertaken for purpose of delay and harassment such that Metz is entitled to appellate attorney's fees and a 10% increase in his award?

FACTS

Metz was employed as a carpenter by Graycor. On Wednesday, August 23, 2000, Metz arrived at a Graycor jobsite in Portage, Indiana at approximately 6:00 a.m. He was assigned that morning to build ladders as a means of ingress and egress for other workers in trenches. That day, Metz informed his supervisor that he had personal business that would require him to leave the jobsite. At approximately 8:45, as Metz was walking out of a trench in soft sand, he twisted his ankle, "went down on one knee, got back up, went up the other side of the trench, and proceeded on [his] way to the gang trailer to put [his] tools away." (Tr. 19). As Metz was leaving he saw a supervisor who was "kind of a distance away." (Tr. 20). Metz "yelled out to him, `I slipped and fell.'" (Tr. 20). The supervisor "shrugged his shoulders," but Metz was not certain that the supervisor had heard him. (Tr. 20-21). Metz thought his ankle was sprained. After placing his tools in the trailer, he left the jobsite.

After Metz returned to his home and removed his boot, he learned that his ankle was quite swollen. He called for a medical appointment and was told that he could not be seen until August 25, 2000.

On August 24, 2000, Metz returned to work. Because his ankle was sore and a little swollen, he laced his boot tightly. After the safety meeting that morning, Metz told his immediate supervisor, Rich Smulski, that he had a medical appointment on Friday relating to the incident at the jobsite on August 23, 2000. At that point, Metz told Chris Collier, the job superintendent, that he had hurt his ankle the day before and that he needed to leave the jobsite early on Friday for the medical appointment relating to the injury. Collier "blew up, and told" Metz "to get off the job site." (Tr. 24). Collier took Metz to a trailer to obtain his pay. After Metz waited approximately an hour for his pay, Collier escorted Metz from the jobsite. On August 25, 2000, Metz was treated by a private physician, Dr. Fedorchak.

On December 18, 2000, Metz filed a second application for adjustment of his worker's compensation claim. At the time of the hearing before the Single Hearing Member on April 25, 2002, Metz testified to the above events. Graycor presented the written statements of the supervisors indicating that Metz had not told them of the injury until August 24, 2000, the day after the injury. Metz testified that he was not aware of the reporting procedures when one sustained an on-the-job injury, or that after such an injury he was to be "treated by a work doctor." (Tr. 33). Also, he was not told by his employer when or where to report for a drug test even though he was aware of such a policy when one sustained a work-related injury.

At the time of the hearing, Metz was continuing treatment with Dr. Fedorchak. At the hearing, Metz described the treatment and the efforts to halt the deterioration of his ankle bone:

[T]hey've got a bone stimulator on me. They're trying to get the bone to heal back together. I can't—I've tried everything that I can do. I've tried heavy lifting, I've tried (inaudible). Everything I can do to try to work with this leg, and it's just, I can't do it.

* * * * *

The bone's not healing. It's actually deteriorating.

(Tr. 26).

In October 2000, Dr. Fedorchak had performed surgery on Metz's ankle. Metz continued to have pain and difficulties with the ankle. Dr. Fedorchak's notes after a May 2001, CT examination stated:

Bone sclerosis in the talus due to post traumatic arthritic changes and bone healing around a comminuted fracture. There is a small residual nonunited fracture seen laterally and posteriorly in the inferior articular surface of the talus.

(Exhibits 20).

By the time of the hearing, Metz had had extensive treatment, including physical therapy, a TENS unit, a brace, and a bone stimulator. He had incurred $26,000 in medical bills. Metz was not working and was not able to return to his former employment as a carpenter.

He noted that he had difficulty lifting heavy objects because his ankle felt "very uncomfortable" when he did so. (Tr. 52). However, he stated that he had "tried to do things around the house that [he did] normally." (Tr. 53). Also, in his March 2002 deposition, he explained that he regularly helped around the house because he could not expect his fiancée to perform all household chores. In the deposition, he went into great detail regarding the financial hardship of not working for an extended period thereby requiring him to apply for food stamps and disability benefits, as well as borrow money from others.

At the hearing, Graycor disputed that the injury occurred at work. In the alternative, Graycor took the position that even if the injury occurred at work, Metz failed to properly report the injury thereby avoiding the company-authorized treatment and the drug testing policy.

On July 31, 2002, the Single Member Hearing Judge entered findings of fact and conclusions of law awarding Metz temporary total disability. In pertinent part, the order states:

1. That on August 23, 2000, Plaintiff was an employee of Defendant.

2. That on August 23, 2000, Plaintiff suffered an injury to his left ankle while on the work site of Defendant, Graycor, in Portage, Indiana.

3. That on August 23, 2000, Plaintiff's average weekly wage exceeded the maximum allowance under the Indiana Worker's Compensation Act.

4. That, per Plaintiff, Defendant was orally notified of Plaintiff's ankle injury on August 24, 2000, when Plaintiff told his job superintendent, Chris Collier.

5. That per Chris Collier ..., Plaintiff reported his injury sometime after being laid off from his Graycor job and prior to August 28, 2000, the date of Collier's statement.

6. That Plaintiff was laid off from Graycor on August 24, 2000.

7. That on August 23, 2000, Plaintiff sustained a plantar flexion, inversion left ankle injury with rupture of the anterior talofibular ligament, and multiple fractures of the talus bone.

8. That the injuries sustained by Plaintiff to his left ankle on August 23, 2000, are consistent with Plaintiff's description of the manner in which he injured the ankle.

9. That Plaintiff underwent surgery on October 12, 2000, for repair of the damaged anterior talofibular ligament and resection of the fractured os trigonum.

10. That Plaintiff has undergone several types of treatment for his ankle injury and has incurred medical bills arising from his August 23, 2000 injury in excess of $26,000.00, none of which have been paid by Defendant.

11. That Defendant has not paid any worker's compensation disability benefits to Plaintiff.

12. That Plaintiff has been totally disabled since August 23, 2000, and continues to be totally disabled at this time as a result of the August 23, 2000 injury to his ankle.

13. That Plaintiff's condition is not quiescent and additional treatment for his injury is needed.

14. That Plaintiff suffered an injury to his left ankle on August 23, 2000, that arose out of and in the course of his employment with Defendant.

15. That Plaintiff has been totally disabled since August 23, 2000, as a result of his covered injury.

* * * * *

17. That Plaintiff has not received any TTD compensation from Defendant and is entitled to TTD benefits from August 23, 2000, at the rate of $508.00 per week, with retroactive benefits payable in a lump sum.

18. That Defendant is obligated to pay the Plaintiff's medical expenses incurred and to be incurred as a result of his covered injury, all in accordance with the Act. The bills submitted at the hearing of this matter, together with any bills for treatment rendered to Plaintiff from any of those same providers since August 23, 2000, are payable by Defendant, as well as future statutory medical.

19. That Defendant had actual knowledge of the Plaintiff's injury under the Act and was not prejudiced by the notice given by the Plaintiff.

20. That Defendant had timely notice of the Plaintiff's injury under the Act and was not prejudiced by the notice given by the Plaintiff.

AWARD

IT IS THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Worker's Compensation Board of Indiana that there be awarded Plaintiff as against Defendant as follows:

1. That Plaintiff's medical condition arising from his covered injury is not quiescent.

2. That Plaintiff has not received any TTD compensation from Defendant and is entitled to TTD benefits from August 23, 2000, at the rate of $508.00 per week, with retroactive benefits payable in a lump sum.

3. That Defendant is obligated to pay the Plaintiff's medical expenses incurred and to be incurred as a result of his covered injury, all in accordance with the Act.

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