Schlereth v. Aramark Unif. Servs., Inc.

589 S.W.3d 645

James SCHLERETH, Appellant,

v.ARAMARK UNIFORM SERVICES, INC., and Treasurer of the State of Missouri, Second Injury Fund, Respondents.

No. ED 107806

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: November 12, 2019

FOR APPELLANT, Jeffrey P. Gault, Law Offices of Jeffrey Gault, 222 South Central Avenue, Suite 808, Clayton, Missouri 63105-1150.

FOR RESPONDENT, David I. Hares, David I. Hares, Esq. & Associates., 10801 Big Bend, #2E, St. Louis, Missouri 63122, Ellen J. Hudson, Assistant Attorney General, PO Box 861, St. Louis, Missouri 63188.

Philip M. Hess, Presiding Judge

Introduction

James Schlereth ("Claimant") appeals from the final award of the Labor and Industrial Commission ("Commission") denying his claim for permanent total disability against Aramark Uniform Services, Inc. ("Employer"), its insurer Indemnity Insurance Company of North America, and the Second Injury Fund ("Fund").¹ On appeal, Claimant contends the Commission erred in denying his claim because the facts found by the Commission do not support its award and the Commission’s award is not supported by sufficient competent evidence.

In his first point on appeal, Claimant argues the Commission’s conclusion that his work-related accident was not the cause of his medical condition is error because the Commission improperly found he offered "no evidence" regarding causation and arbitrarily disregarded contrary unanimous expert testimony. In his second point on appeal, Claimant argues, because the Commission erred in concluding Claimant’s medical condition was not compensable, the Commission also erred in failing to decide the issues of Claimant’s level of disability, the Fund’s liability, and Claimant’s entitlement to future medical treatment.

We find the facts found by the Commission support its award denying Claimant’s claim was compensable. We find the Commission’s award concluding Claimant’s work-related accident was not the cause of his medical condition is supported by sufficient competent evidence. Because we find the Commission’s award was proper, we do not reach the issues of Claimant’s level of disability, the Fund’s liability, or Claimant’s entitlement to future medical treatment. Accordingly, we affirm.

Factual and Procedural Background

October 8, 2014 Injury

Claimant began working for Employer in November 2005 as a commercial laundry facility production supervisor. While at work on October 8, 2014, Claimant was notified a few subordinates left a large batch of linen soaking wet on the production line when it should have been spun dry. Claimant verbally reprimanded two subordinates, telling them what they did was "stupid." In response, one of the subordinates spit in Claimant’s face and punched Claimant repeatedly about the face and head, causing Claimant to become dazed and fall and hit his head against a washing machine. Claimant and the subordinate were promptly terminated that day for fighting. Claimant has not returned to work since his termination and supports himself on social security disability.

Claimant was driven to DePaul Hospital Emergency Room and treated on October 8, 2014. He complained of a headache and mild ringing in his right ear. When asked to rate his pain on a scale of severity, Claimant rated his pain as a 2/10. Claimant underwent a CT scan, and the results were normal. He was diagnosed with a "facial contusion" and released without medication. On October 17, 2014, nine days after the work-related accident, Claimant saw his primary care physician, Dr. Mark A. Scheperle. Claimant did not complain of any ear pain during that visit. Dr. Scheperle examined Claimant’s ears and noted they appeared normal. Claimant was visiting Dr. Scheperle monthly following the October 17, 2014, visit and never complained of any pain regarding his ear until June 11, 2015. At Claimant’s June 11, 2015, visit, Dr. Scheperle did not document which of Claimant’s ears was experiencing pain. Dr. Scheperle made no diagnosis and provided no treatment regarding either of Claimant’s ears. Dr. Scheperle’s records do not document ringing in either of Claimant’s ears.

Administrative Hearing

Claimant filed a claim for compensation against Employer and the Fund on October 27, 2017. The Administrative Law Judge ("ALJ") heard Claimant’s claim on March 21, 2018.

Claimant testified at the hearing. He testified the ringing in both of his ears began after the work-related accident and his symptoms persist. He testified the ringing in his ears makes it difficult for him to concentrate and fall asleep. He also testified he experiences ringing in his ears more severely if he is in a noisy place. On cross-examination, Claimant testified he did not list that he suffered from tinnitus or any ringing in his ears when he filled out his Social Security Application after the work-related accident. He testified he failed to do so because he did not know how to spell the word "tinnitus."

Claimant offered the deposition testimony of Dr. Raymond Cohen into evidence. Dr. Cohen conducted an independent medical examination of Claimant on January 12, 2016. Dr. Cohen testified Claimant said the work-related accident caused him to become dizzy and develop ringing in both of his ears. Dr. Cohen reviewed the emergency room records from DePaul Hospital Emergency Room and indicated they showed Claimant complained of mild ringing in only his right ear on October 8, 2014. Dr. Cohen testified Claimant told him he had trouble focusing and falling asleep after the work-related accident.

Dr. Cohen diagnosed Claimant with a mild traumatic brain injury and resulting chronic bilateral tinnitus. Dr. Cohen opined the work-related accident was the prevailing factor in causing Claimant’s mild traumatic brain injury and resulting chronic bilateral tinnitus. On cross-examination, Dr. Cohen admitted there can be many causes of tinnitus. He admitted older persons and men are more likely to experience tinnitus. He admitted exposure to loud noises, ear infections, cardiovascular disease, diabetes, and certain medications can cause tinnitus. He admitted that Meloxicam, a medication Claimant took before the work-related accident, is a medication that can cause tinnitus. Dr. Cohen rated Claimant as being 20% permanently and partially disabled due to the chronic bilateral tinnitus he sustained because of the work-related accident. Dr. Cohen recommended Claimant avoid loud noise exposure and use hearing protection in situations where he could be exposed to loud noises.

Employer offered the deposition testimony of Dr. David M. Peeples into evidence. Dr. Peeples conducted an independent medical examination of Claimant on December 11, 2016. Dr. Peeples testified Claimant told him that, after the work-related accident, Claimant developed ringing in his ears. Dr. Peeples testified Claimant told him the ringing in his ears is bothersome but does not limit his daily activities. Dr. Peeples noted Claimant did not mention the ringing in his ears caused him any difficulty concentrating or sleeping. Dr. Peeples also noted Claimant initially complained of tinnitus in the right ear only but complained of bilateral tinnitus in Dr. Cohen’s and his own evaluation of him.

Dr. Peeples testified he found no evidence that Claimant had a traumatic brain injury due to the work-related accident because he had no symptoms of brain injury and his examination was normal. For example, Dr. Peeples testified Claimant reported no memory problems or cognitive dysfunction. Dr. Peeples further noted Claimant’s neurological examinations revealed no problems with his cranial or focal nerves. He testified that, generally, persons with post-traumatic tinnitus also have symptoms of traumatic brain injury. Claimant had none. He also testified that post-traumatic tinnitus is usually unilateral, but it can be bilateral depending on where the injury occurred. However, he testified it is "physiologically" unlikely unilateral tinnitus caused by trauma could progress to bilateral tinnitus. Dr. Peeples testified the actual pathophysiologic cause of tinnitus is not known but the following are risk factors for developing tinnitus: advanced age, genetic predisposition, trauma, and certain medications containing nonsteroidal anti-inflammatory agents. Dr. Peeples testified that Meloxicam, a medication Claimant took before the work-related accident, is a medication well-known for causing ringing in the ears. Dr. Peeples opined the work-related accident was unlikely to be the prevailing factor in causing Claimant’s tinnitus. Dr. Peeples opined the work-related accident was instead only a potential cause of Claimant’s tinnitus.

Administrative Findings

The ALJ issued his award on June 21, 2018, denying Claimant permanent total disability benefits from Employer and the Fund. The ALJ concluded the work-related accident was not the cause of Claimant’s tinnitus. In so concluding, it found Claimant offered "no evidence" of the cause of his tinnitus and Dr. Peeples' testimony regarding causation was more persuasive than Dr. Cohen’s. Without evidence of causation, the ALJ found "[t]he mere claim of Claimant’s tinnitus is not a reasonable supposition to impose liability" on Employer and the Fund. Claimant appealed the award to the Commission. The Commission found the ALJ’s award was supported by sufficient competent evidence and adopted the ALJ’s award and decision. Claimant appeals the Commission’s decision.

Standard of Review

The Missouri Constitution, article V, section 18 (amended 1976)² and section 287.495³ govern appeals of the Commission’s decision. Kolar v. First Student, Inc. , 470 S.W.3d 770, 774 (Mo. App. E.D. 2015). Section 287.495.1 provides:

The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) That the [C]ommission acted without or in excess of its powers;

(2) That the award was procured by fraud;

(3) That the

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