Ashley Fritz v. Sam's Club

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 08-040135

**Employee:** Ashley Fritz

**Employer:** Sam's Club (Settled)

**Insurer:** American Home Assurance 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. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to § 286.090, RSMo, the Commission reverses the award and decision of the administrative law judge.

The parties asked the administrative law judge to resolve the sole issue of Second Injury Fund liability. The administrative law judge determined that Second Injury Fund is liable for $2,773.86 in permanent partial disability benefits.

Second Injury Fund filed a timely application for review with the Commission alleging the administrative law judge erred (1) in finding that employee's prior knee injury was of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and (2) in finding that the preexisting knee injury, combined with the primary elbow injury, reached a disability substantially greater than the primary injury alone.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

On March 2, 2008, while working for employer, Sam's Club, employee, who was nineteen years old, injured her right elbow and right shoulder while lifting cases of water and other beverages. Employee was subsequently diagnosed with lateral epicondylitis in the right elbow and scapular winging of the right shoulder. Employee received medical treatment for her right elbow and right shoulder, specifically, X-rays, MRIs, an EKG, surgery, and injections. After doctors released employee to return to work, employee continued to have pain and issues with her right elbow and right shoulder. Employee was instructed to only perform "light-duty work and [to] avoid repetitive forceful pushing with her right shoulder and overhead reaching and lifting." Transcript, page 8. Employer and employee settled the primary claim for 22.5% permanent partial disability to the body as a whole for a total of $35,013.60.¹

Employee also had a pre-existing injury involving her left knee that was due to competitive sports during high school. Employee received treatment on her left knee, including a 2005 partial medial meniscectomy and arthroscopy. After her 2005 operation, employee continued to

1 The administrative law judge erroneously stated that all of the parties stipulated that 1) employee sustained a 22.5% permanent partial disability referable to the right elbow from the March 2, 2008 injury and 2) that the loading factor was 10%. The Second Injury Fund did not actually stipulate to those two points. Employer settled the primary claim and agreed to a 22.5% permanent partial disability to employee's body as a whole. The record is not clear where the 10% loading factor came from.

Injury No.: 08-040135

Employee: Ashley Fritz

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play sports, but not to such degree or intensity as previously. Employee wore a knee brace for a time. The surgeon who operated on employee's knee informed employee that by the time she was twenty years old, she would need another surgery on her left knee. Employee did not have any other medical treatment on her left knee after the surgery. Employee did not inform Sam's Club of her knee injury.

At the time of the March 2, 2008 injury, employee's knee gave her difficulty, "especially with bending and squatting." Transcript, page 11. Claimant was not able to crawl and could only kneel for short periods of time. At the hearing, claimant testified that she had to quit a prior position delivering mail, "[b]ecause it just became too demanding, too physical of a job for my knees to keep up." Transcript, page 13. At the hearing, claimant testified that she still had pain in her left knee from time to time. Employee also testified that she thought that the combination of her knee problems and her shoulder problems made her worse overall. The administrative law judge found claimant credible. We see no reason to question the administrative law judge's finding of credibility of employee. The Commission finds employee's testimony credible.

At the time of the hearing, employee was employed full time at a General Motors plant, assembling car parts at an assembly line all day with a good productivity rate. When applying for the General Motors position, employee informed General Motors that she had a bad shoulder and a bad knee.

In July 2011, employee saw Dr. P. Brent Koprivica, for an independent medical evaluation. On that particular day, employee's left knee "wasn't really bothering" her. Transcript, page 12. Dr. Koprivica did not find the knee injury to qualify for Second Injury Fund liability. Dr. Koprivica noted that employee had a "good result" after the 2005 arthroscopy and partial medial meniscectomy "without ongoing industrial disability." Transcript, page 73. While with Dr. Koprivica, employee denied "history or prior athletic injury with permanent residual or prior settlements." Transcript, page 73. During the independent medical evaluation, employee was able to perform a full squat.

On June 24, 2014, employee received an independent medical evaluation from Dr. Michael Poppa. After his examination, Dr. Poppa accepted and adopted the 22.5% permanent partial disability of the body as a whole as noted in the stipulation for compromise settlement between employer/insurer and employee. Dr. Poppa opined that employee's "post knee condition prior to 3/20/08, did constitute a hindrance or obstacle to employment or re-employment if she became unemployed." Transcript, page 44.

The administrative law judge found Dr. Poppa's opinion more credible than that of Dr. Koprivica in this matter. We see no reason to question the administrative law judge's finding of credibility of Dr. Poppa's opinion here, with the exception of Dr. Poppa's opinion regarding synergy.

Dr. Poppa's opinion regarding synergy does not persuade us to find a synergistic interaction between employee's pre-existing conditions and her primary injury. Dr. Poppa's report stated:

It is my opinion that when one combines the permanent partial disability involving her status-post knee impairment with the additional permanent partial disability secondary to her recent work injury (3/2/08) resulting in a 22.5% permanent partial disability of the body as a whole, an enhancement of the combined disabilities arises above the simple arithmetic sum of the separate disabilities. In combination, an enhancement of 15% above the simple arithmetic sum of the

Injury No.: 08-040135

Employee: Ashley Fritz

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separate disabilities is felt to be appropriate. From a medical standpoint, the combination of [employee's] pre-existing status-post left knee disability with her current status-post condition involving her scapulothoracic area as well as her non-operated right upper extremity condition creates a synergistic effect resulting in overall disability that is substantially greater than that which resulted from her recent work injury alone.

Transcript, page 44. Dr. Poppa does not explain how or in what way the knee injury combined with the elbow injury to create the greater overall disability. Dr. Poppa's conclusory statements are insufficient to persuasively establish the fact of synergy.

Similarly, although employee also testified that she thought that the combination of her knee problems and her shoulder problems made her worse overall, employee did not elaborate on how the primary injury combined synergistically with the pre-existing injury. Employee's statements show a simple summation of the two injuries that made her worse overall, but did not persuasively establish a synergistic effect.

On November 27, 2017, the administrative law judge issued a Final Award allowing compensation against Second Injury Fund for permanent partial disability in the amount of $2,773.86 due to an elbow injury (March 2, 2008) that combined with a prior knee injury (2005).

Conclusions of Law

In order to trigger Second Injury Fund liability, employee must show that she "has a preexisting permanent partial disability ... of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and ... receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability ... caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself ..." § 287.220.2, RSMo.

Although we believe Second Injury Fund's appeal fails as to the issue of hindrance or obstacle to employment, the appeal succeeds because of a lack of evidence of synergy in the record.

Hindrance or obstacle to employment:

The Commission agrees that employee's knee injury was a hindrance or obstacle to employment or to obtaining reemployment. Missouri courts have held that "any preexisting injury which could be considered a hindrance to an employee's competition for employment in the open labor market should trigger second injury fund liability." *Leutzinger v. Treasurer of Mo. Custodian of the Second Injury Fund*, 895 S.W.2d 591, 593 (Mo. App. 1995).

Due to the potential ramifications that a preexisting knee injury can have, when combined with another injury, the administrative law judge reached the correct result in determining that employee's knee injury was a hindrance to employment. 2 "It is the potential for those more serious combinations of injury and previous condition that gives rise to the employer's incentive to discriminate in the absence of a Second Injury Fund." *Wuebbeling v. West County, Drywall*, 898 S.W.2d 615, 620 (Mo. App. 1995). "That potential is what gives rise to prospective

2 We note that on the sixth page of the Award, the first full paragraph ends with an incomplete sentence regarding whether the knee injury was a hindrance or obstacle to employment. Although it is not certain what the administrative law judge was going to say, he ultimately found in employee's favor on this issue.

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Employee: Ashley Fritz

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employers' incentive to discriminate." *Id.* at 620. The fact that claimant has a preexisting knee injury is likely to be some hindrance when employers consider whether to hire claimant for work. Therefore, employee's knee injury was a hindrance or obstacle to employment or to obtaining reemployment.

**Synergy:**

Second Injury Fund also argues that the employee did not establish synergy between the primary injury and the preexisting injury. The Commission agrees.

> "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)).

The only expert medical testimony regarding synergy in the record is a generic statement by Dr. Poppa finding synergy.