Roy Schenewerk v. AmeriPride Services

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 08-077068

**Employee:** Roy Schenewerk

**Employer:** AmeriPride Services (Settled)

**Insurer:** American Casualty Company (Settled)

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This 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, read the briefs, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

Employee pursues this claim against the Second Injury Fund premised on the argument his May 29, 2008 work injury combined with his preexisting conditions of ill-being, including injuries to both feet, injuries to his left knee, bilateral shoulder pain, and an injury to his right leg, to establish permanent total disability.

The administrative law judge denied the claim based on a finding that employee is permanently and totally disabled as a result of subsequent worsening of employee's condition, including carpal tunnel issues, foot surgeries, knee surgeries and replacement, removal of the bursa from the left elbow, surgery to employee's right shoulder, four angioplasties, injuries to the left hand, arthritis in the right knee, treatment for coronary artery disease, treatment for varicose veins, and two heart attacks.

We agree with the administrative law judge that employee's evidence is not supportive of a finding he is permanently and totally disabled owing to the combination of his preexisting conditions and the primary injury because employee's evidence identifies subsequent worsening of employee's preexisting conditions as primary factors in employee's inability to work.¹ For example, employee's testimony supported a finding

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¹ Employee makes a point to contest a statement by the administrative law judge that employee's "cardiac condition ... has deteriorated significantly since 2008." Award, page 7. Employee points out that the record does not support a finding that his heart condition has deteriorated. Employee's argument is misplaced. The administrative law judge's entire sentence shows that the administrative law judge did not intend to imply that employee's heart condition deteriorated, but that employee's overall condition deteriorated. The entire sentence states as follows, "[employee] testified at his deposition and at trial that he believes he is incapable of employment due to his current condition, which is inclusive of surgeries to the right shoulder and left knee post May 29, 2008, as well as his cardiac condition which has

Injury No.: 08-077068

Employee: Roy Schenewerk

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of permanent total disability that was the combined result of pre-existing conditions, the May 29, 2008 accident, and subsequent worsening of his condition. See Transcript, pages 58-60. In addition, the only expert medical evidence in support of a claim for permanent total disability is Dr. Snyder's May 5, 2016 Independent Medical Evaluation. It is clear that Dr. Snyder's permanent total disability opinion on May 5, 2016, includes subsequent worsening of employee's condition after the date of maximum medical improvement.

Parties stipulate that claimant's maximum medical improvement was achieved on September 2, 2009. It is incumbent on employee to advance evidence sufficient to permit us to evaluate the nature and extent of his permanent disability on that date. The record does not contain any medical opinion or employee testimony that addresses or describes employee's ability to compete in the open labor market as of the date of maximum medical improvement. There is no opinion regarding the levels of permanent partial disability existing as of the date of maximum medical improvement, and no real description of employee's symptoms and limitations as of the date of maximum medical improvement.

Just prior to the maximum medical improvement date, Dr. Snyder concluded on June 10, 2009 that employee "qualifies" for disability. Transcript, page 122. The opinion that one qualifies to apply for disability does not establish that employee was not able to compete in the open labor market. Furthermore, employee acknowledges in his brief that Dr. Snyder did not actually find employee disabled until after employee's 2010 and 2015 heart surgeries. Brief of Petitioner, page 7.

We agree that employee is not permanently and totally disabled as a result of his primary injury and his preexisting conditions.

Synergistic Effect-Permanent Partial Disability

We note that the administrative law judge did not address the issue of whether the Second Injury Fund is liable for permanent partial disability benefits; accordingly, we discern a need to briefly address same.

The credible and convincing evidence does not establish that there was the required synergy between the primary injury and the pre-existing conditions to establish Second Injury Fund liability. Ordinarily, where an employee demonstrates multiple disabling conditions affecting the bilateral upper and lower extremities, it would appear an award of permanent partial disability against the Second Injury Fund would be warranted.

deteriorated significantly since 2008." We find that employee's overall condition has deteriorated significantly since 2008 and that employee's current condition includes post May 29, 2008 surgeries to the right shoulder and left knee and employee's cardiac condition.

2 In his brief, employee argues a synergistic effect because Dr. Snyder concluded on June 10, 2009, that employee "qualifies" for disability. Brief of Petitioner, page 10; Transcript page 122. The opinion that one qualifies to apply for disability does not establish a synergistic effect between the preexisting conditions and the primary injury.

Injury No.: 08-077068

Employee: Roy Schenewerk

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The Second Injury Fund only has liability in certain cases of permanent disability where there is a preexisting disability. § 287.220.2, RSMo. See *Winingear v. Treasurer of State-Custodian 2nd Injury Fund*, 474 S.W.3d 203, 207 (Mo. App. 2015); *Lewis v. Treasurer of State*, 435 S.W.3d 144, 152 (Mo. App. 2014). After proving a preexisting permanent partial disability and a compensable injury that resulted in a permanent partial disability, an employee must also prove a synergistic effect between the two disabilities. *Winingear*, 474 S.W.3d at 207 (citing *Hoven v. Treasurer of State*, *Custodian of Second Injury Fund*, 414 S.W.3d 676, 678 (Mo. App. 2013)).

"If an employee establishes that the two disabilities combined result in a greater disability than that which would have occurred from the last injury alone, then the Fund is liable for the degree of the combined disability that exceeds the numerical sum of the preexisting disabilities and the disability from the last injury, or the 'synergistic effect' of the combined disabilities." *Winingear*, 474 S.W.3d at 207-08 (citing *Treasurer of State-Custodian of Second Injury Fund v. Witte*, 414 S.W.3d 455, 467 (Mo. banc 2013)).

"Thus, the failure to prove a synergistic combination between the primary injury and a preexisting disability is proper grounds for denying Fund liability." *Winingear*, 474 S.W.3d at 207-08 (citing *Calvert v. Treasurer of State*, 417 S.W.3d 299, 314 (Mo. App. 2013)).

Dr. Snyder's May 5, 2016 Independent Medical Evaluation does not address any synergistic effect between the primary injury and his preexisting conditions. Dr. Snyder's 2016 evaluation also included employee's worsening conditions since the primary injury. Progress notes from Dr. Snyder also do not show a synergistic effect.

In a September 3, 2008 progress note, Dr. Snyder described partial tears in employee's left shoulder, as found in a 2006 MRI. Dr. Snyder continued his progress note by stating that employee's "MRI from June of 2008 after his motor vehicle accident shows essentially the same partial tears and significant inflammation and irritation of the musculature of the subacromial bursa." *Transcript*, page 118. Instead of describing a synergistic effect, Dr. Snyder stated that the 2008 accident "exacerbated an underlying condition" and that employee "also has probably extended the partial tear somewhat and caused trauma and inflammation in the area ..." *Transcript*, page 118.

Similarly, Dr. Snyder did not describe a synergistic effect when he stated in his January 5, 2009, progress note that employee was functioning and doing fine. Dr. Snyder further wrote, "In my opinion, the motor vehicle accident that occurred while at work propagated the tear and has caused his symptoms." *Transcript*, page 120.

At most from Dr. Snyder's progress notes, we have opinions that the accident "exacerbated an underlying condition" and "propagated the tear" that already existed in employee's left shoulder. These opinions indicate a worsening of employee's left shoulder due to the accident, but do not indicate a synergistic effect that created a result greater than the sum of the preexisting condition and the primary injury.

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Imployee: Roy Schenewerk

There was insufficient proof to persuade us to make a finding that there is a synergistic effect between the preexisting conditions and the May 29, 2008 primary injury. Therefore, the Second Injury Fund is not liable for permanent partial disability benefits.

Because there is no Fund liability, we must deny the claim. All other issues are moot.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Hannelore D. Fischer, issued July 17, 2017 is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this **27th** day of July 2018.


Employee: Roy Schenewerk

Injury No.: 08-077068

Dependents: N/A

Employer: AmeriPride Services (previously settled)

Additional Party: Treasurer of the State of Missouri

Custodian of the Second Injury Fund

Insurer: N/A

Hearing Date: June 2, 2017

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: HDF/scb

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? N/A
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: Alleged May 29, 2008
5. State location where accident occurred or occupational disease was contracted: Cole County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? N/A
11. Describe work employee was doing and how accident occurred or occupational disease contracted: See Award
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: ---
3. Weekly compensation rate: 437.62 per week for permanent total disability
4. 389.04 per week for permanent partial disability

1. Amount of compensation payable: Employer previously settled
2. Second Injury Fund liability: - 0 -
3. Future Requirements Awarded: None

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on June 2, 2017. Memoranda were submitted by June 23, 2017.

The parties stipulated that on or about May 29, 2008, the claimant, Roy Schenewerk, was in the employment of AmeriPride Services (AmeriPride). Mr. Schenewerk sustained an injury by accident; the accident arose out of and in the course of employment. The parties stipulated that the facts relevant to the claimant's relationship to the employer/insurer are resolved in the claimant's favor in the pending claim against the Second Injury Fund, with the exception of the medical causation of the injuries alleged. The compensation rate is 437.62 per week for permanent total disability benefits and 389.04 per week for permanent partial disability benefits.

The issues to be resolved by hearing include 1) the medical causation of the injuries alleged, and 2) the nature and extent of permanent partial disability, and 3) the liability of the Second Injury Fund (permanent total disability is alleged).

The parties have stipulated that the settlement of the claim against the employer/insurer settled based on a permanent disability of 17.5 percent of the left shoulder; the parties do not, however, agree that this represents the extent of permanent disability resulting from the injury of May 29, 2008, in the pending claim against the Second Injury Fund.

The parties have further stipulated to the date of maximum medical improvement as September 2, 2009.

The claimant, Roy Schenewerk, was born in 1968 and graduated from high school in 1986. Mr. Schenewerk does not have a college education. Mr. Schenewerk's work history includes a short stint in the military; employment as a stock handler at Scholastic; work as a compounder at Chesebrough Ponds; stocking at Florsheim Shoes; work as a manager at Best Buy and at a Gas Plus gas station; work as a security guard at Fulton State Hospital; two weeks of work at Laidlaw hauling trash; work at Airborne Express; employment at an overnight delivery service, which

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Roy Schenewerk

Injury No. 08-077068

became DHL; and contracted with Cody Cartage, work delivering bread products for Sara Lee; and, finally, work at AmeriPride delivering clean uniforms, linens and rugs. Mr. Schenewerk testified that he began work for AmeriPride in 2007, about six months before his May 29, 2008 accident and injury.

On May 29, 2008, after loading his panel van for deliveries, Mr. Schenewerk was traveling on highway 68 on his way to a restaurant in St. James when a semi truck came toward him in the middle of the highway. Mr. Schenewerk drove into the ditch to avoid the semi truck and then steered to get back on the road when his van began to roll over. Mr. Schenewerk testified that everything in the panel van came forward. The van landed on its side and Mr. Schenewerk was taken to the hospital. Mr. Schenewerk said that the right shoulder hurt and that a rack of hangers had struck him in the right shoulder and upper and middle back during the vehicle accident. Mr. Schenewerk did not return to work after the accident. Ultimately, according to Mr. Schenewerk, he had arthroscopic surgery on his right shoulder performed by Dr. Snyder. Mr. Schenewerk said that he had had prior injuries to his left shoulder. In his deposition testimony, given August 10, 2015, Mr. Schenewerk testified to being hit in the left shoulder by a rack of hangers during the May 29, 2008 accident or hurting the left shoulder when he was trying to exit the van and he fell down the stairwell. In his deposition testimony Mr. Schenewerk said that Dr. Snyder performed a reconstruction of the left shoulder rotator cuff and that he still has pain in the left shoulder. In his deposition testimony Mr. Schenewerk said that he had surgery on the right shoulder the Christmas previous to the deposition testimony.

Mr. Schenewerk acknowledged that he had a subsequent right shoulder surgery in 2013, but said that this surgery was not precipitated by an accident but rather by Mr. Schenewerk's arthritis and an inability to reach behind his back with the right arm.

Mr. Schenewerk sustained injuries to both feet while in the military as the result of being issued and wearing shoes that were three to four sizes too small for him; Mr. Schenewerk described the resulting condition as metatarsalalgia and said that he has had multiple surgeries on both feet to correct the condition and is anticipating additional foot surgeries. Mr. Schenewerk sustained an injury to his left knee while paying softball during his employment at Chesebrough Ponds; Mr. Schenewerk had surgery performed by Dr. Snyder for this injury. In 2002, Mr. Schenewerk injured his left knee while employed by Cody Cartage; Dr. Snyder repaired the knee surgically. A workers' compensation settlement document referencing the December 3, 2002 left knee work injury indicates that the resulting workers' compensation case was settled based on a permanent disability of 37 percent of the left knee. Mr. Schenewerk had three additional left knee surgeries: in 2005 (reconstruction and ligament repair), in 2009 or 2010 (knee replacement with cadaver bone), and 2013 (knee replacement with titanium). In the medical records for the 2002 accident Mr. Schenewerk also mentioned that he injured his shoulder breaking up a fight. In 2003, Mr. Schenewerk was gored by a goat and injured his right front leg; Mr. Schenewerk said that he had five surgeries following that injury to repair his leg. Mr. Schenewerk also testified to two hernia surgeries (at birth and at seven years of age), an injury to his left or right knuckles after being stuck by a pitchfork (1985 or 1986), 2014 right carpal tunnel surgery, 2009 removal of the bursa from the left elbow, four angioplasties, and surgery for a smash injury to the left hand. Specifically after the 2008 accident, Mr. Schenewerk had a 2009 left foot surgery, arthroscopic surgery on the right shoulder in 2015, the 2009 and 2013 left knee replacements, treatment for

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arthritis in the right knee, treatment for coronary artery disease, treatment for varicose veins in 2010, and treatment for heart attacks. Mr. Schenewerk testified that he suffered two heart attacks after May of 2008. Mr. Schenewerk said that after treatment for the right leg and treatment for the right hand he had no ongoing problems. In his deposition testimony Mr. Schenewerk said that he had no residual problems after treatment for the left elbow, the hand injury as the result of the accident with the pitchfork, or the hernias.

During cross-examination Mr. Schenewerk acknowledged that the settlement with AmeriPride for the 2008 accident reflects disability to the left shoulder only. Mr. Schenewerk then testified that it was his left shoulder that was injured and was the subject of Dr. Snyder's first shoulder surgery and that the 2013 shoulder surgery was to the right shoulder.

Mr. Schenewerk testified that his left shoulder injury kept him from immediately returning to work at AmeriPride. Mr. Schenewerk also stated that even in the absence of his shoulder injury he would not now be able to work at AmeriPride. In his deposition testimony Mr. Schenewerk said that he could not return to work as a delivery person for UPS or Federal Express because of the condition of his feet and his left knee.

In his deposition testimony Mr. Schenewerk said that his inability to work since the left shoulder injury is because he has "so many more - I mean, I've had nothing but surgeries happen since then and got more to go. (Schenewerk depo p104, 12-4) "And every job is going to require some kind of standing. Every job is going - I mean, that I've ever done requires squatting, stooping, and all that, and I just don't know what I would be able to do where I would make them comfortable with my performance to be able to keep that job, and with some of the lim - like the knee and things like that ." (Schenewerk depo p 104, 115-21)

Dr. Michael Snyder, MD, performed an independent medical examination on Mr. Schenewerk and issued a report based thereon dated May 5, 2016. Dr. Snyder described Mr. Schenewerk's problems with his feet dating back to the mid to late 1980's, referencing the osteotomies done by Dr. Krautmann and the revisions done twice since the initial procedures. Dr. Snyder outlined Mr. Schenewerk's history of left knee injuries dating back to 1992, the anterior cruciate ligament reconstruction done as the result of the 1992 accident, and the revision of the anterior cruciate ligament and the partial medial and lateral meniscectomies done in 2003 in response to Mr. Schenewerk's 2002 work accident; Dr. Snyder noted the treatment Mr. Schenewerk received for his left knee up through the left total knee arthroplasty done in 2013. Dr. Snyder described Mr. Schenewerk's bilateral shoulder pain as dating back to 2006; Dr. Snyder stated that Mr. Schenewerk had impingement syndrome with evidence of partial rotator cuff tears in both shoulders. Dr. Snyder reported that he performed Mr. Schenewerk's left shoulder arthroscopy, subacromial decompression, and repair of a partial rotator cuff in February of 2009. Dr. Snyder described Mr. Schenewerk's right shoulder surgery in December of 2015 as a right shoulder scope, arthroscopic subacromial decompression, repair of a rotator cuff tear, and the supraspinatus tendon as well as a distal clavicle resection.

Dr. Snyder recounted Mr. Schenewerk's medical history as also inclusive of three angioplasties, an ulcer on his bilateral corneas, coronary artery disease, diabetes under control with weight reduction, gastroesophageal reflux, and vision problems with the corneal ulcers. Dr. Snyder

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recounted Mr. Schenewerk's surgical history as including two hernia repairs, three foot surgeries, incision and drainage in the right leg as the result of infection, three left knee surgeries, a left elbow bursectomy, left hand surgery, right carpal tunnel release, left shoulder scope, right rotator cuff repair, and three angioplasties.

Dr. Snyder stated in his "impression" that "[t]his is a gentleman who has had multiple orthopedic problems. He currently continues to have bilateral shoulder problems. He has undergone a left total knee. He has degenerative arthritis of the right knee. He has bilateral pes planus deformities and chronic problems with arthritis and metatarsalgia of his right and left feet. He has coronary artery disease. He has got diabetes mellitus, controlled by diet. This person is on permanent disability secondary to the above-mentioned medical problems, and at this point he needs to continue on complete and total disability." (Snyder report 5.5.16, p4)

A June 10, 2009 medical update from Dr. Snyder post Mr. Schenewerk's left shoulder arthroscopy contains Dr. Snyder's opinion that Mr. Schenewerk "cannot go back to the work he is doing" and recommends that Mr. Schenewerk reapply for "disability" due to his "multiple joint problems". (clmt exh.15)

APPLICABLE LAW

RSMo Section 287.220.2 All cases of permanent disability where there has been previous disability due to injuries occurring prior to January 1, 2014, shall be compensated as provided in this subsection. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury

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together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of the second injury fund.

The claimant, Roy Schenewerk, has failed to sustain his burden of proof that he is permanently and totally disabled as the result of his left shoulder injury of 2008 and his preexisting disabilities. Mr. Schenewerk testified at his deposition and at trial that he believes he is incapable of employment due to his current condition, which is inclusive of surgeries to the right shoulder and left knee post May 29, 2008, as well as his cardiac condition which has deteriorated significantly since 2008. Similarly, Dr. Snyder's opinion regarding Mr. Schenewerk's permanent and total disability is premised on Mr. Schenewerk's disabilities inclusive of those which presented after May 29, 2008, specifically the coronary condition, the right shoulder and the left knee. Dr. Snyder's opinion in June of 2009, in contrast, refers only to Mr. Schenewerk's inability to return to his former employment, rather than a bar to any and all employment.

All other issues raised for resolution are hereby rendered moot.


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