Debra Highley v. Von Weise Gear

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-138799

Employee: Debra Highley

Employer: Von Weise Gear (Settled)

Insurer: Travelers Insurance (Settled)

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

Date of Accident: December 16, 2003

Place and County of Accident: Franklin County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 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 Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated February 6, 2007. The award and decision of Administrative Law Judge Kevin Dinwiddie, issued February 6, 2007, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\underline{19^{\text {th }}}$ day of July 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest:

John J. Hickey, Member

Secretary

1. Are any benefits awarded herein? Yes
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: 12/16/03
5. State location where accident occurred or occupational disease was contracted: Franklin County, Missouri
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: Repetitive use injury to wrists
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: left and right upper extremities at the wrist
14. Nature and extent of any permanent disability: 15% permanent partial disability of the left and of the right wrist
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A
17. Value necessary medical aid not furnished by employer/insurer? N/A
18. Employee's average weekly wages: in dispute
19. Weekly compensation rate: $\ 347.05 for permanent partial disability
20. Method wages computation: by agreement of the parties as to permanent partial disability rate of compensation

1. Amount of compensation payable: N/A
2. Second Injury Fund liability: Yes

1. Future requirements awarded: N/A

Said payments to begin as of the date of this Award 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 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Richard T. Grossman

Employee: Debra Highley

Injury No: 03-138799

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: ---

Employer: Von Weise Gear (previously settled)

Additional Party State Treasurer, as custodian of the Second Injury Fund

Insurer: Travelers Insurance

Checked by: KD/bb

The claimant, Ms. Debra Highley, and the State Treasurer, as Custodian of the Second Injury Fund, appeared at hearing by and through their counsel and entered into certain stipulations and agreements as to the issues and evidence to be presented in this claim for compensation as against the Second Injury Fund only. The primary claim as against the involved employer, Von Weise Gear, and its insurer, Travelers Insurance, was previously settled.

The parties have stipulated that the involved work injury resulted in a permanent partial disability of each of the wrists equivalent to 15 % of each the left and right upper extremities at the 175 week level, see Section 287.190.1(5) RSMo. The parties have further stipulated that the applicable rate for permanent partial disability is

CC1. Certified medical records of Missouri Baptist Medical Center (55 pages)

CC2. Certified medical records of Missouri Baptist Medical Center (5 pages)

DD. Medical report of Gary J. Schmidt. M.D., dated 6/7/04

EE1. Certified medical records of Parkcrest Orthopedics (8 pages)

EE2. Certified medical records of Parkcrest Orthopedics (4 pages)

EE3. Certified medical records of Parkcrest Orthopedics (1 page)

FF. Certified medical records of The Orthopedics Center of St. Louis

GG. Certified medical records of N.E.I. of St. Louis (Dr. Peeples)

HH. Certified medical records of Barnes-Jewish Hospital, Washington University Pain Management Center

II. Certified medical records of Phelps County Regional Medical Center

JJ. Stipulations for Compromise Settlement, Injury Number 88-175230

KK. Stipulation for Compromise Settlement, Injury Number 90-119626

LL. Stipulation for Compromise Settlement, Injury Number 94-041560

MM. Stipulation for Compromise Settlement, Injury Number 94-201421

NN. Stipulation for Compromise Settlement, Injury Number 95-155295

OO. Stipulation for Compromise Settlement, Injury Number 00-167193

PP. Stipulation for Compromise Settlement, Injury Number 01-113837

QQ. Stipulation for Compromise Settlement, Injury Number 03-138799

RR. Deposition of Debra K. Highley, taken on 8/04/06

SS. Wage statement

The claimant, Debra Highley, as of the date of hearing in this matter, was a married 52 year old mother of three sons. In her deposition taken on 8/04/06, the claimant acknowledged that she lives at home with her second husband, Stanley, and with her son, Kenneth, along with his wife and four children. Ms. Highley notes that she left school after the tenth grade and began working for a living. Ms. Highley spent seven or so years as a machine operator/packer for SunMark Industries. Thereafter she was employed for a year or two at QM Reader Service, where she sold magazines to residential customers by telephone. The only injury suffered by Ms. Highley in those years was a finger cut while working for her first employer.

Thereafter Ms. Highley was employed at Von Weise Gear Company (hereinafter also referred to as "employer") for approximately 21 years until she separated from that employment in December of 2003. Claimant notes that the employer manufactured motor parts, and that she started as an operator, drilling holes in metal parts and polishing metal parts with a sander. Within three months, and until the end of her career with the employer some 20 years later, Ms. Highley worked as a grinder in the grinding department.

The claimant related that she would grind parts that varied in size from one eighth of an inch to eight inches in diameter, and that she would grind as many as 300 to 400 parts per shift. Claimant relates that grinding also included using micrometers on every fifth part to check for proper size. Within six months the claimant moved into "set-up", which required that she not only run production, but also set up the machines. Claimant relates that set up included putting the correct wheels into the machine, the size of the wheel depending on the size of the part being made; reading blue prints to understand the proper alignment; setting guards; and using wrenches to make as many as ten to fifteen adjustments to a machine. Claimant relates that by 1994 the machines became bigger, requiring more effort to set up, and that in time the employer began using computerized machines in addition to manual machines, which required the claimant to learn to make computerized set ups by entering data into the machine by keyboard.

Claimant further relates that by 1994 she also became responsible for quality control. Claimant became classified as a "Class 1", and began running less production as a grinder because of the time taken up by her other duties. Claimant notes that she became responsible for training others, and that quality control required that she check dimensions and finishes on the parts run by other workers, and enter her findings into a computer. As a Class I, Ms. Highley held a primary position and was never subject to a layoff throughout her