James Schlereth v. Aramark

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 14-077190**

**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

FINDINGS OF FACT AND RULINGS OF LAW

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: 10/08/14
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: Employee was assaulted by a subordinate, fell against a washing machine, resulting in ringing in the ears.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Ear ringing
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? $2,161.48

Revised Form 31 (5/97)

Page 1

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 944.54
3. Weekly compensation rate: $\$ 629.91 / \ 451.02
4. 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:

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.: 14-077190

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.

EXHIBITS

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 (6-81)

Page 4

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.

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.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 14-077190

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) Right knee arthroscopic medial meniscectomy and chondral shaving.

7) Right knee arthroscopic partial meniscectomy and chondroplasty of the patellofemoral joint and medial compartment.

8) Left knee total replacement.

9) Laceration to the right foot and ankle.

WC-32-R1 (6-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 14-077190

Claimant alleges that his job duties, working as production supervisor, have led to the development of bilateral carpal tunnel, bilateral cubital tunnel and left epicondylitis. On the recommendation of Dr. Mark Sheperle, his primary care physician, Claimant underwent an EMG/NCV on 2/11/13. (Ex. 1). This study had an impression of right proximal ulnar neuropathy possibly at the elbow but was otherwise normal.

The Employer and Insurer had Claimant evaluated by Dr. Kostman. Dr. Kostman diagnosed Claimant with non-work related degenerative arthritis or advance osteoarthritis in the bilateral elbows, bilateral thumbs, and the bilateral long fingers at the MCP joints.

Claimant states, if it is found that he has an occupational disease that arose out of and in the course of employment, then he would like the employer to provide medical treatment.

On 10/8/14, Claimant verbally reprimanded two subordinates with profanity-laced language. (Ex. 35). One of the subordinates, who struggled with the English language, responded by punching Claimant repeatedly about the face and head. Claimant was dazed, fell and hit his head against a washing machine. Both Claimant and the subordinate were promptly terminated for fighting. Claimant has not worked since his termination for this admitted altercation.

Claimant was treated at the DePaul Hospital Emergency Room that day. He had no fractures and complained of mild ringing in his right ear. (Ex. 4). Claimant's description of pain was at a severity of 2/10. (Ex. 4). He was released unmedicated.

The Employer and Insurer had Claimant evaluated by Dr. David M. Peeples. He found the neurologic exam was normal, that there was no evidence of brain injury and that tinnitus was not disabling.

Raymond Cohen, D.O.

Claimant offered the deposition testimony of Raymond Cohen, D.O. as Exhibit 28. He was deposed on 11/7/17. Dr. Cohen examined Claimant on 1/12/16. At the time, Claimant was on the following medications:

1. Cozaar, 10 milligrams;
2. morphine, 100 milligrams;
3. oxycodone, 10 milligrams, 3/325 milligrams
4. Valium, 10 milligrams.

Regarding the occupational repetitive trauma disorder, Dr. Cohen diagnosed:

1. Left Cubital Tunnel Syndrome;

WC-32-R1 (6-81)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 14-077190

2) Right Cubital Tunnel Syndrome;

3) Right lateral epicondylitis;

4) Right Carpal Tunnel Syndrome;

5) Left Carpal Tunnel Syndrome.

He assigned ratings for the 2/11/13, occupational disease at the following levels:

1) 25% permanent partial disability at the right elbow.

2) 20% permanent partial disability at the left elbow.

3) 30% permanent partial disability at the right wrist.

4) 20% permanent partial disability at the left wrist.

5) 15% load factor due to the significant involvement of both upper extremities.

He assigned a rating of 20% permanent partial disability of the whole person due to the chronic bilateral tinnitus from the incident dated 10/8/14.

For Claimant's pre-existing conditions prior to the 2013 and 2014 incidents, he assigned the following ratings:

1) 20% permanent partial disability at the right ankle.

2) 70% permanent partial disability at the left knee.

3) 50% permanent partial disability at the right knee.

4) 25% permanent partial disability of the whole person at the lumbar spine.

5) 52% permanent partial disability of the whole person at the cervical spine.

6) 20% permanent partial disability at the right hand.

Dr. Cohen opined, "Due to this combination of disabilities, it is my opinion that he is permanently and totally disabled, and not capable of gainful employment in today's open labor market."

W. Christopher Kostman, M.D.

Employer and Insurer offered the deposition testimony of W. Christopher Kostman, M.D. as Exhibit Z. He was deposed on 8/30/17. Dr. Kostman examined Claimant on 4/1/15. Dr. Kostman is a board certified orthopedic surgeon who treats only extremity injuries.

Dr. Kostman reviewed the 2/11/13, EMG study of the right and left upper extremities. He stated the EMG showed, "Right proximal ulnar neuropathy, possibly at the elbow." In addition, Dr. Kostman reviewed an x-ray of Claimant's hands that was taken on 4/1/15. Dr. Kostman stated "His hands demonstrated advanced osteoarthritis involving his CMC joints at the base of his thumb and wrist bilaterally and, in addition, advanced osteoarthritis involving his MCP joint, long finger, bilaterally."

When asked his opinion whether the arthritis in the upper extremities was caused by Claimant's employment at Aramark, Dr. Kostman replied that "lifting and pushing and pulling is not consistent with that particular pattern of arthritis. Like I mentioned earlier, I think that's more consistent with a genetic predisposition."

WC-32-R1 (6-81)

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 14-077190

Based on his exam findings, review of medical records, and imaging study findings, Dr. Kostman diagnosed Claimant with advanced osteoarthritis involving his bilateral elbows and hands. He did not think Claimant's condition was work related.

Finally, Dr. Kostman stated that he does not believe Claimant has carpal tunnel or cubital tunnel as a result of his work. He stated, "Number one, there's no evidence of carpal tunnel from the EMG nerve conduction study findings; and, number two, the positive finding in the nerve conduction, which was right proximal ulnar, was not specifically consistent with his exam findings. So, I don't think that those are related to his work activities."

David M. Peeples, M.D.

Employer and Insurer offered the deposition testimony of David M. Peeples, M.D. as Exhibit AA. He was deposed on 1/3/18. Dr. Peeples examined Claimant on 12/11/16. Dr. Peeples is a neurologist. His examination was focused on the second claim, dated 10/8/14, more specifically, the cause of Claimant's tinnitus. This was an examination for an IME. Dr. Peeples never treated Claimant for tinnitus. There is no record of Claimant ever receiving treatment for tinnitus.

When asked, "What are some of the causes of tinnitus?" Dr. Peeples responded, "The actual pathophysiologic cause of tinnitus is not clearly known, but it's well identified in certain populations of patients. The most common being age related and idiopathic. The other things that can cause it are trauma. It's felt that sometimes viral infections can do it. Nonsteroidal anti-inflammatory agents and some other medications are well known to cause it." Claimant was taking Mobic. Dr. Peeples stated, "Mobic is a nonsteroidal anti-inflammatory agent, which includes other medicines like Advil, Motrin, aspirin, and all of those are well known to cause ringing in the ears."

After examining the Claimant, Dr. Peeples found no evidence that he had a traumatic brain injury as a result of the 10/8/14 incident. Claimant's neurologic examination was normal.

Finally, Dr. Peeples described tinnitus as a "nuisance, but I have never seen a case that tinnitus resulted in an inability to work."

Vocational Opinion

James E. Israel

Claimant offered the deposition testimony of James E. Israel, as Exhibit 29. Mr. Israel is a licensed vocational rehabilitation counselor. He was deposed on 7/21/17. Mr. Israel evaluated the Claimant on 6/2/16, and issued a reported dated 6/28/16.

Mr. Israel found that Claimant is "a 62 year old former career production supervisor who sustained head trauma and tinnitus after being assaulted by a worker on October 8, 2014." He was diagnosed with a mild traumatic brain injury with chronic bilateral tinnitus.

WC-32-R1 (6-81)

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 14-077190

Claimant subsequently sustained significant loss of functioning. He has been given restrictions which limit his overall strength and endurance. He has been specifically prohibited from returning to work in his usual occupation as a production supervisor.

Mr. Israel concluded that Claimant's diminished capabilities makes it quite unlikely Claimant could sustain any substantial gainful or full time job. Mr. Israel concluded that Claimant can no longer compete in the open labor market.

1. In this chapter the term **"occupational disease"** is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

1. An injury or death by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The **"prevailing factor"** is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

1. An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The **"prevailing factor"** is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

Creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show that he suffers from "a pre-existing permanent partial disability whether from a compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining re-employment if the employee becomes unemployed." *Id.* Missouri courts have used the following test for determining whether a pre-existing disability constitutes a **"hindrance or obstacle to employment"**:

WIC-32-R1 (5-81)

Page 10

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 14-077190

[T]he proper focus of the inquiry is not on the extent to which a condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition. *Knisley v. Charleswood Corporation*, 211 S.W.3d 629,637 (Mo.App. 2007)

A claimant in a workers' compensation proceeding has the burden of proving all elements of his claim to a reasonable probability. *Cardwell v. Treasurer of the State of Missouri*, 249 S.W.3d 902,911 (Mo.App. E.D. 2008). In order for a claimant to recover against the Second Injury Fund, he must prove that he sustained a compensable injury, referred to as "the last injury," which resulted in permanent partial disability. Section 287.220.1 RSMo. A claimant must also prove that he 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 his employment or re-employment 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 claimant to be entitled to recover permanent partial disability benefits from the Second Injury Fund, he must prove that the last injury, combined with his pre-existing permanent partial disabilities, causes greater overall disability than the independent sum of the disabilities. *Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund*, 138 S.W.3d 714, 717-18 (Mo. Banc 2004).

First Case

Claimant suffered considerable permanent partial disability with respect to each of the pre-existing conditions. His pre-existing disability referable to these conditions was serious enough to be hindrances or obstacles to employment for purposes of §287.220. However, Claimant did not meet the burden imposed by law.

Dr. Kostman took into account the type of work that Claimant did and reviewed the radiological tests. It was Dr. Kostman's opinion that Claimant's bilateral arthritis was the cause of Claimant's complaints to his upper extremities. Dr. Kostman stated that the arthritis was symmetric in the upper extremities and this would indicate that the cause is genetic. He also stated that Claimant's propensity for osteoarthritis would manifest itself in the load bearing joints of Claimant's lower extremities, which was indeed the case. To the contrary, Dr. Cohen was unaware of Claimant's duties at work. He was only aware that he worked in a laundry. He assumed that Claimant had a very physical job and used that assumption to arrive at the conclusion that Claimant had a work related, repetitive trauma injury.

I find Dr. Kostman's diagnosis more persuasive than that of Dr. Cohen. Claimant suffers from bilateral osteoarthritis to his upper extremities and it is genetic in nature, making it idiopathic. Therefore, this Court must deny Claimant's claim against the Employer and Insurer, and his claim against the Second Injury Fund.

WC-32-R1 (6-81)

Page 11

Claimant alleges the altercation between he and his subordinate is the cause of his bilateral tinnitus, combined with his pre-existing disability, resulting in his permanent total disability. However, the treating records from DePaul Hospital Emergency Room indicate he had no fractures and complained of mild ringing in his right ear. (Ex. 4). The pain was at a severity of $2 / 10$. (Ex. 4). He was released the same day, without medication. It was only after his examination with Dr. Cohen, did he state that he had bilateral tinnitus and that it was so severe as to prevent him from concentrating and have difficulty falling asleep.

Furthermore, Employer and Insurer introduced into evidence the deposition of Dr. David M. Peeples, a neurologist. Dr. Peeples' opinion was that there is no known cause of tinnitus. It could be caused by the nonsteroidal anti-inflammatory agents, which Claimant freely admitted to be regularly taking. He stated that it could be caused by a traumatic brain injury, of which he found no evidence, or, it occurs in some demographics of the population as a function of aging. Claimant offered no evidence of the cause of the tinnitus. Dr. Peeples' evidence was unrebutted and more persuasive.

The mere claim of Claimant's tinnitus is not a reasonable supposition to impose liability for the condition. Therefore, this Court must deny Claimant's claim for permanent total disability against the Employer and Insurer, and the Second Injury Fund.

Neither the Employer/Insurer nor the Second Injury Fund are liable to Claimant permanent total disability benefits.

I certify that on June 21,2018. 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.


Made by:

Joseph P. Keaveny

Administrative Law Judge

Division of Workers' Compensation