James Schlereth v. Aramark

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 13-104096**

**Employee:** James Schlereth

**Employer:** Aramark

**Insurer:** Indemnity Insurance Company of North America

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

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 June 21, 2018, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Joseph P. Keaveny, issued June 21, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **29th** day of March 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: 2/11/13 alleged
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Alleged repetitive trauma occupational disease in the course of working in the laundry.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Bilateral upper extremities
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 13-104096

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

1. Employee's average weekly wages: 919.47

1. Weekly compensation rate: 612.98/$433.58

1. Method wages computation: Stipulation

**COMPENSATION PAYABLE**

1. Amount of compensation payable: None

1. Second Injury Fund liability: N/A

**TOTAL:** 0.00

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 N/A% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Revised Form 31 (3/97)

Page 2

This case involves two separate Claims for Compensation alleged by Claimant against Aramark and the Second Injury Fund. The first injury is an occupational disease, repetitive trauma injury to both of his upper extremities due to the performance of excessive repetitive tasks in the commercial laundry business over many years, identified by Injury Number 13-104096 with a reported accident date of 2/11/13. The second case is a diagnosis of tinnitus as a result of an assault, identified by Injury Number 14-077190 with a reported accident date of 10/8/14. Claimant seeks permanent total disability and future medical in the second case. These cases may be referred to hereinafter as the first and second cases, respectively and chronologically.

The testimony and exhibits in this record constitute the evidence in each Claim. Separate awards are issued on each claim.

On 3/21/2018, the parties appeared for a hearing. James Schlereth (Claimant") appeared in person and with Attorney Jeffrey Gault. The Employer, Aramark, and its Insurer, Indemnity Insurance Company of North America, was represented by Attorney Robert Amsler. Assistant Attorney General E. Joye Hudson represented the Second Injury Fund.

(Both cases)

1) The Employer was operating subject to Missouri's Workers' Compensation Law at all times, heretofore. 2) Claimant was employed at all times relevant herein. 3) The Employer received proper notice of the claim. 4) Claimant filed the claim within the time allowed by law. 5) The County of St. Louis is the proper venue.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 13-104096

6) In the first case, the average weekly wage was 919.47, which qualifies for rates of 612.98 for temporary total disability (TTD), and $433.58 for permanent partial disability (PPD).

7) In the second case, the average weekly wage was 944.54, which qualifies for rates of 629.91 for temporary total disability (TTD), and $451.02 for permanent partial disability (PPD).

8) In the first case, Employer paid zero in medical expenses and zero TTD.

9) In the second case, Employer paid $2,161.48 in medical expenses and zero TTD.

10) In the second case, MMI was stipulated at 10/8/14.

Claimant introduced, and had admitted into evidence, the following exhibits:

1) University Club Medical (Electrical Study) dated 2/11/13.

2) LabCorp Bloodwork dated 12/28/12 and 9/10/03.

3) Attorney Gault Letter dated 2/9/15.

4) DePaul Health Center records dated 10/8/14.

5) Concentra records dated 5/4/12 - 6/5/12.

6) John Krause, M.D. records dated 6/18/12 - 7/2/12.

7) Dr. Mark Sheperle records dated 6/20/12.

8) St. Louis Surgical Consultants records dated 6/21/12.

9) Dr. Kriegshauser records assorted dates.

10) St. Anthony's Medical Center records dated 12/16/09.

11) Richard Howard, D.O. records dated 3/22/04 - 12/17/07.

12) Harold E. Dunn, M.D. records dated 4/29/04 - 7/10/06.

13) SSM Rehab records dated 7/2/04 - 5/1/06.

14) Bruce Schlafly, M.D. records dated 11/23/05 - 10/21/08.

15) St. Mary's Health Center records dated 8/17/06.

16) SSM St. Mary's Health Center records dated 1/18/01 - 6/30/04.

17) Neurosurgical Associates records dated 4/9/02 - 7/11/02.

18) St. Luke's Hospital - Neck fusion Op note dated 4/17/02.

19) Scott Radiological Group records dated 6/26/02.

20) University Club Medical records dated 6/26/02 - 3/23/07.

21) H. Dennis Mollman, M.D., Ph.D. record dated 7/11/02.

22) Hafiz Khattak, M.D. records dated 4/2/03 - 4/25/03.

23) Raymond Cohen, D.O. records dated 7/22/03.

24) SSM St. Mary's Health Center records dated 10/28/03 - 5/1/06.

25) Thomas Hawk, M.D. records dated 2/25/04 - 3/8/04.

26) Thomas Hawk, M.D. records dated 1/22/96 - 2/19/02.

27) Thomas Spiro, M.D. records dated 7/9/97 - 2/1/02.

28) Deposition of Raymond Cohen, D.O. dated 11/7/17.

29) Deposition of James Israel dated 7/21/17.

30) Stipulation for Compromise Settlement for DWC Injury No. 02-023592.

31) Stipulation for Compromise Settlement for DWC Injury No. 02-023592 (SIFO).

32) Stipulation for Compromise Settlement for DWC Injury No. 04-021708.

33) Stipulation for Compromise Settlement for DWC Injury No. 04-021708 (SIFO).

WC-32-R1 (6-01)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 13-104096

34) Dr. Mark Sheperle records dated 1/25/13 - 9/6/13.

35) Deposition of Donald Williams dated 2/16/17.

Employer and Insurer introduced, and had admitted into evidence, the following Exhibits:

A) Right knee operative note dated 5/21/01.

B) X-ray Clayton Health dated 2/2/02.

C) X-ray St. Mary's dated 10/8/03.

D) Left knee operative note dated 5/30/07.

E) Left knee operative note dated 10/31/07.

F) DePaul Hospital Emergency Department records dated 10/8/14.

G) Dr. Mark Sheperle records.

H) South City Chiropractic records.

I) Thomas M. Hawk, M.D. records.

J) H. Dennis Mollman, M. D. records.

K) Michael Zylka, M.D. records.

L) St. Luke's Hospital records.

M) Gurpreet Padda, M.D. records.

N) Richard F. Howard, M.D. records.

O) Harold E. Dunn, M.D. records.

P) Saint Mary's Hospital records.

Q) SSM Rehab records.

R) Saint Anthony's Medical Center records.

S) Lawrence A. Kriegshauser, M.D. records.

T) SSM Health DePaul Hospital records.

U) Concentra medical records.

V) Christopher S. Cronin, M.D. records.

W) John O. Krause, M.D. records.

X) Gregorio Tambone, M.D. records.

Y) Division of Workers' Compensation file

Z) W. Christopher Kostman, M.D. deposition dated 8/30/17.

AA) David M. Peeples, M.D. deposition dated 1/3/18.

The Second Injury Fund offered no Exhibits.

ISSUES

In the first case:

1) Incidence of occupational disease.

2) Whether injury arose out of and in the course of employment.

3) Medical causation.

4) Additional medical treatment.

5) Permanent disability.

6) Liability of the Second Injury Fund.

WC-32-R1 (6-91)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

In the second case:

1) Medical causation.

2) Future medical treatment.

3) Permanent disability.

4) Liability of the Second Injury Fund.

Claimant was born on October 31, 1953. He dropped out of high school in the ninth grade to get married. He did not obtain his GED. He obtained a CDL after having had a chauffeur's license. Claimant has not had any other type of vocational training, apprenticeship, or formal education since leaving school. He did not serve in the military.

Claimant had been a production supervisor for commercial laundry facilities from 1986 to 2014. He worked for National Linen Service, supervising 40 workers, from 1986 to 2005. From November 2005 to October 2014, he worked for Employer, overseeing operations in a hands-on capacity as production supervisor. These jobs necessitated lifting and carrying in the heavy range. Duties required frequent reaching overhead, gross handling, fine dexterity, talking, listening, and use of visual acuity were utilized. Bending, balancing, stooping, and crouching were part of his daily routine.

Before his production supervisory jobs at National Linen Service and Aramark Uniform Service, he was a delivery supervisor (1984 to 1986) and truck driver (1979 to 1984) for National Linen Service before his promotion to production supervisor. At his last job, he earned approximately $46,000 annually, before his termination in 2014.

1) Chronic low back and cervical strains/sprains with myalgia.

2) Right hand reflex sympathetic dystrophy.

3) Cervical fusion and hardware placement on the left at C6-7.

4) Right long finger surgery to relieve pain.

5) Right middle finger metacarpal phalangeal joint with tendon subluxation and arthritic change.

6) Righ