Court of Appeals of Missouri, Eastern District, Second Division
from the Labor & Industrial Relations Commission.
M. Hess, Presiding Judge.
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"). 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
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.
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.
and Procedural Background
8, 2014 Injury
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.
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.
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,
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."
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.
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.
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.
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 ...