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

- 3 -

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.

Injury No.: 08-040135

Employee: Ashley Fritz

- 4 -

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. Dr. Poppa assigned an enhancement of 15% when combining employee's knee injury with her elbow injury and stated that "an enhancement of the combined disabilities arises above the simple arithmetic sum of the separate disabilities," and that there is a "synergistic effect resulting in an overall disability that is substantially greater than that which resulted from her recent work injury alone." *Transcript*, page 44.

We have found Dr. Poppa's conclusory statements in this matter did not persuasively establish synergy. Missouri courts have declared that an employee fails to meet his burden of proof where his expert "fail[s] to provide any legitimate, persuasive explanation ... making only conclusory and unsupported statement[s]." *Royal v. Advantica Rest. Group, Inc.*, 194 S.W.3d 371, 378 (Mo. App. 2006). Dr. Poppa does not explain how or in what way the knee injury combined with the elbow injury to create the greater overall disability. Because of the insufficient evidence of synergy, there is no Second Injury Fund liability.

Therefore, we must deny employee's claim. All other issues are moot.

**Decision**

We reverse the award of the administrative law judge.

Employee's claim against Second Injury Fund is denied because employee failed to demonstrate that the primary injury combines synergistically with her preexisting conditions of ill-being to result in any increased permanent partial disability.

The award and decision of Administrative Law Judge Lawrence G. Rebman, issued November 27, 2017, is attached solely for reference.

**Employee:** Ashley Fritz

**Given at Jefferson City, State of Missouri, this** 10th day of October 2018.

- **Robert W. Cornelo, Chairman**

- **Reid K. Forrester, Member**

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

**Attest:**

- **James M. Waxman**

- Secretary

Issued by the Division of Workers' Compensation

Employee: Ashley Fritz

Injury No.: 08-040135

FINAL AWARD

AS TO THE SECOND INJURY FIND ONLY

Employee: Ashley Fritz

Injury No.: 08-040135

Dependents: N/A

Employer: Sam's Club (Settled)

Insurer: American Home Assurance Company (Settled)

Additional Party: State Treasurer, Custodian of the Second Injury Fund

Trial Date: 8/31/17

Check by: LGR/drl

FINDINGS OF FACT AND RULINGS OF LAW

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: March 2, 2008

1. State location where accident occurred or occupational disease was contracted: Grandview, Jackson County, Missouri

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

1. Did 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 employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted:

The Employee injured her right arm as a result of lifting heavy containers of water.

1. Did accident or occupational disease cause death? No Date of death? N/A

Issued by the Division of Workers' Compensation

Employee: Ashley Fritz

Injury No. 08-040135

1. Part(s) of body injured by accident or occupational disease: right elbow

1. Nature and extent of any permanent disability: 22.5% at the right elbow (210 week level)

1. Compensation paid to-date for temporary disability: $2,360.00

1. Value necessary medical aid paid to date by employer/insurer: $43,970.30

1. Value necessary medical aid not furnished by employer/insurer? None

1. Employee's average weekly wages: maximum for PPD

1. Weekly compensation rate: $389.04

1. Method wages computation: By stipulation.

COMPENSATION PAYABLE

1. Amount of compensation payable: The Employer previously settled this claim.

1. Second Injury Fund liability:

7.13 weeks of overall greater disability x $389.04 = 2,773.86.

TOTAL: 2,773.86

1. Future requirements awarded: N/A

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent in favor of the following attorney for necessary legal services rendered to the Claimant: Kathleen McNamara.

The parties appeared on August 31, 2017, for a final hearing to determine the liability of the Second Injury Fund in the matter of Ashley Fritz. Attorney Kathleen McNamara represented the Claimant. Assistant Attorney General Kim Fournier represented the Second Injury Fund. The Employer and its Insurer previously settled with Claimant and did not participate in the hearing.

STIPULATIONS

The parties stipulated to the following:

1) That Claimant was an employee of Employer pursuant to Chapter 287 RSMo; 2) That Employer received proper notice of the claim; 3) That Claimant filed the claim within the time allowed by law; 4) That the permanent partial disability rate is $389.04; 5) That Claimant sustained 22.5 percent permanent partial disability referable to the right elbow from his March 2, 2008 injury; 6) That the loading factor is 10 percent.

ISSUE

The only issue to be determined by this hearing is the liability of the Second Injury Fund.

Ashley Fritz was a 19-year-old woman working for Sam's Club on March 2, 2008 when she injured her right arm as a result of lifting heavy containers of water. Following the injury she had an X-ray, an MRI, and ultimately an EKG. Eventually, she was diagnosed with epicondylitis in the right elbow and underwent physical therapy and injections. She was also diagnosed with a right shoulder scapular injury that resulted in nerve damage and required surgical repair. Ms. Fritz's injury resulted in pain and winging in her right shoulder blade area. For this, she required a tendon transfer. Ms. Fritz testified that after her recovery from surgery, she has continued to have pain around her shoulder blade area and elbow, a decrease in strength and occasional numbness and tingling. She was issued permanent restrictions and remains unable to do work that requires overhead reaching or lifting, as well as weight limitations. She testified to ongoing problems with pain in her right arm as a result of this injury, including difficulty with overhead work.

Claimant saw Dr. Koprivica and he performed a physical examination of Ms. Fritz's shoulder which yielded deficits and losses. Dr. Koprivica provided a rating of 25 % for her primary shoulder injury. Ms. Fritz settled that claim for 22.5 % disability to her right arm.

On June 7, 2005, Ms. Fritz underwent surgery for a tom meniscus by Dr. MacMillan. Ms. Fritz's knee problems were most likely due to her many years as a student athlete. Three months after surgery, she followed up with her surgeon, Dr. McMillan, and his notes indicated that she continued playing sports in school and that her left knee was really not bothering her anymore and for her to follow up as needed. During the hearing, Ms. Fritz confirmed that she continued to play sports including basketball, track, and volleyball despite having some ongoing pain and difficulty getting her strength back. Although Ms. Fritz continued to play these sports on a competitive level year round, she no longer wore a knee brace play all volleyball positions or ran all the track events that she had in the past. Ms. Fritz testified that she has had limitations in bending, squatting, kneeling, and crawling as well as lifting.

Ms. Fritz continued to work full time after her knee injury and did not miss work due to any problems with her knee before 2008. Her job at Sam's Club required her to be on her feet on concrete 8 hours a day. Ms. Fritz continued to be employed by Sam's Club after her 2008 injury until sometime in 2010. Since leaving Sam's Club, Ms. Fritz has continued to work. She was a postal carrier for the US Post Office but quit due to knee problems. Ms. Fritz currently works full time for General Motors on the assembly line.

Issued by the Division of Workers' Compensation

Employee: Ashley Fritz

Injury No. 08-040135

In July of 2011, Ms. Fritz was sent by her attorney to see Dr. Brent Koprivica for her underlying 2008 workers' compensation claim. At that time, Dr. Koprivica listed a number of jobs that Ms. Fritz obtained between 2004 and his evaluation in 2011, which included: working as a cashier at McDonalds; as a customer service rep at Gordmans from February 2005 to August 2007; her job with Sam's Club from 2008 through 2010; and, finally, her jobs at Off Broadway Shoes as a sales associate, and a second job at Aldi as a cashier where she was working when he evaluated her in 2011.

Dr. Koprivica also indicated that Ms. Fritz had undergone an arthroscopic surgery on her left knee, but that the left knee surgery yielded a good result without ongoing industrial disability. On physical exam of the knee, he did not find abnormalities. Rather, he found: "no sensory dermatomal losses in the lower extremities"; "motor strength testing is graded as 5/5 in the lower extremities"; "Ms. Fritz can toe and heel ambulate"; "she is able to perform a full squat"; and "there is no spasticity of gait." Finally, at the conclusion of his report, Dr. Koprivica noted that: "I have not identified any Second Injury Fund liability associated with the March 28, 2008 claim."

On June 24, 2014, Dr. Poppa evaluated the Claimant for Fund purposes and provided a rating for her knee injury of 15%. Dr. Poppa found some pain in Ms. Fritz's left knee but noted that her left knee range of motion remained functional, and noted that there was no joint laxity, that the joint reflexes were active and symmetrical bilaterally, but he was unable to complete the remainder of manual testing due to a recent unrelated right knee surgery. In his report, Dr. Poppa stated that Ms. Fritz's knee condition did constitute a hindrance or obstacle to employment or reemployment should she become unemployed. Ms. Fritz told Dr. Poppa that her knee has been problematic at Gordmans and that she had to go slower.

The evidence supports a finding that Ms. Fritz's preexisting knee disability is 15% to the knee.

Claimant testified live. Her testimony was credible. Ashley Fritz was working for Sam's Club on March 2, 2008, when she injured her right arm as a result of lifting heavy containers of water. Following the injury she had an X-ray, an MRI, physical therapy, and injections. She was also diagnosed with a right shoulder scapular injury that resulted in nerve damage and required surgical repair.

On June 7, 2005, Ms. Fritz underwent surgery for a torn meniscus by Dr. MacMillan. Ms. Fritz testified that she continued to play sports including basketball, track, and volleyball.

Issued by the Division of Workers' Compensation

Employee: Ashley Fritz

Injury No. 08-040135

Despite having some ongoing pain and difficulty getting her strength back. Although, Ms. Fritz continued to play these sports on a competitive level year round, she no longer wore a knee brace to play all volleyball positions or ran all the track events that she had in the past. Ms. Fritz testified that she has had limitations in bending, squatting, kneeling, and crawling as well as lifting. She reported to Dr. Poppa that her knee problems caused her to go slower at Gordmans retail before the 2008 injury. I find Dr. Poppa provides more details of Ms. Fritz's knee conditions and, therefore, give it greater weight when compared to the summary opinions of Dr. Koprivica.

Ms. Fritz has established a right to recover from the Second Injury Fund. As a workers' compensation claimant, she has the burden of proving all elements of her claim to a reasonable probability. *Cardwell v. Treasurer of State of Missouri*, 249 S.W. 3d 902, 911 (Mo.App. E.D. 2008). In order for Ms. Fritz to recover against the Second Injury Fund, she must prove that she sustained a compensable injury, referred to as "the last injury," which resulted in permanent partial disability. Section 287.220.1 RSMo. She must also prove that she had a pre-existing permanent partial disability, whether from a compensable injury or otherwise, that: (1) existed at the time the last injury was sustained; (2) was of such seriousness as to constitute a hindrance or obstacle to her employment or reemployment should he become unemployed; and (3) equals a minimum of 50 weeks of compensation for injuries to the body as a whole or 15% for major extremities. *Dunn v. Treasurer of Missouri as Custodian of Second Injury Fund*, 272 S.W. 3d 267, 272 (Mo. App. E.D. 2008) (Citations omitted). In order for Ms. Fritz to be entitled to recover permanent partial disability benefits from the Second Injury Fund, she must prove that the last injury, combined with her pre-existing permanent partial disabilities, causes greater overall disability than the independent sum of her disabilities. *Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund*, 183 S.W. 3d 714, 717-718 (Mo.Banc 2004). Ms. Fritz has met the burden imposed by law where her elbow injury and restrictions combined with her knee injury to affect which jobs she looked for and affected her.

Having given careful consideration to the entire record, based upon the above testimony, stipulations of the parties, the competent and substantial evidence presented, and the applicable law of the State of Missouri, I find the following:

1) Ms. Fritz sustained a 22.5 percent permanent partial disability to her right elbow at the 210 week level. (22.5 x 210 = 47.25 weeks);

2) As of the time the last injury was sustained, Ms. Fritz had a 15% permanent partial disability to the left knee at the 160 week level. (15% x 160 = 24 weeks);

3) The credible evidence establishes that the last injury to the right elbow, combined with the pre-existing knee permanent partial disability causes 10 percent greater overall disability than the independent sum of the disabilities and the last injury combined with the pre-existing

Issued by the Division of Workers' Compensation

Employee: Ashley Fritz

Injury No. 08-040135

injury. The Second Injury Fund liability is calculated as follows: 47.25 weeks for the last injury plus 24 weeks for the pre-existing left knee injury = 71.25 weeks x 10 % = 7.13 weeks of overall greater disability x $389.04 = 2,773.86.

CONCLUSION

The Second Injury Fund is liable to Ms. Fritz for 2,773.86 in permanent partial disability benefits.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Kathleen McNamara.

I certify that on 11-27-17

I delivered a copy of the foregoing award

to the parties to the case. A complete

record of the method of delivery and date

of service upon each party is retained with

the executed award in the Division's case file.

By *Ally*

Made by:

*Lawrence G. Rebman*

Administrative Law Judge

Division of Workers' Compensation