Laura Selmon v. Siegal Roberts Automotive

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-097891

Employee: Laura Selmon

Employer: Siegal Roberts Automotive

Insurer: Hartford Insurance Company c/o Specialty Risk Services

Date of Accident: On or about July 31, 2006

Place and County of Accident: St. Francois 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 April 7, 2008. The award and decision of Administrative Law Judge Lawrence Kasten, issued April 7, 2008, 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 19th day of August 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

- Did employer receive proper notice? Yes.

- Did accident or occupational disease arise out of and in the course of the employment? Yes.

- Was claim for compensation filed within time required by law? Yes.

- Was employer insured by above insurer? Yes.

- Describe work employee was doing and how accident happened or occupational disease contracted: Repetitive motion with upper extremities

- Did accident or occupational disease cause death? No.

- Parts of body injured by accident or occupational disease: Right shoulder and neck.

- Nature and extent of any permanent disability: 25 % of the right shoulder and 2.5 % of body as a whole referable to the cervical spine.

- Compensation paid to date for temporary total disability: None.

- Value necessary medical aid paid to date by employer-insurer: None.

- Value necessary medical aid not furnished by employer-insurer: $\ 15,950.00.

- Employee's average weekly wage: $\ 463.95

- Weekly compensation rate: $\ 309.30

- Method wages computation: By agreement.

- Amount of compensation payable:

$\ 15,950.00 in previously incurred medical

$\ 1,237.20 in temporary total disability

$\ 21,032.40 in permanent partial disability

Total: $\ 38,219.60

- Second Injury Fund liability: N/A

- Future requirements awarded: None.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: James Krispin.

On December 20, 2007, the employee, Laura Selmon, appeared in person and by her attorney, James Krispin, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Mark Kornblum. Also present for the employer was Angie Tessmer, its human resources representative. This case was heard with Injury Number 07-046372 and separate awards were issued in each case. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

- Siegel Roberts Automotive was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was fully insured by Hartford Insurance c/o Specialty Risk Services.

- On or about July 31, 2006, Laura Selmon was an employee of Siegel Roberts Automotive.

- The employer had notice of the employee's alleged occupational disease.

- The employee's claim was filed within the time allowed by law.

- The employee's average weekly was $\ 463.95. The rate of compensation for temporary total and permanent partial disability is $\ 309.30 per week.

- The employer-insurer has not paid any medical aid.

- The employer-insurer has not paid any temporary disability.

- Occupational disease

- Claim for previously incurred medical

- Temporary total disability

- Nature and extent of permanent partial disability

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

- Medical records of Dr. Krewet

- Medical records and medical bill of Dr. Noguera

- Medical records of JMH Rehab Center

- Medical records of Dr. Ruble

- Medical bills of Dr. Ruble

- Impala tape

- Impala emblem

- Deposition of Dr. Berkin including exhibits (The record was left open for the submission of this exhibit which was received and admitted into evidence on January 9, 2008. The record was then closed).

Employer-Insurer's Exhibits

- Deposition of Dr. Doll including exhibits.

WITNESSES: Laura Selmon, the employee; Dalton Demman, for the employer-insurer

BRIEFS: The employee filed her brief on January 22, 2008. On March 10, 2008, a letter was received from the employer-insurer's attorney indicating that they would not be filing a brief.

The employee was born in December of 1967. Prior to working at Siegel Roberts Automotive, she did not have any physical problems or complaints with her shoulders, arms or wrists and had no treatment for her shoulders, arms or wrists. The employee used to bowl but stopped in 2002 prior to the problems in her arms. Outside of the workplace she does not have any hobbies or activities. The employee had a prior motor vehicle accident that caused a neck injury. She received chiropractic treatment for approximately three weeks. She and her daughter received a settlement for $\ 14,000.00. The employee did not have any physical difficulties with her neck after that.

She started working at Siegel Roberts on September 30, 2002 as a tape assembler. The employee's shift was 5 a.m. to 1:30 p.m. During that 8.5 hour shift, there was a 30 minute lunch and two 10 minute breaks. The employee testified that she worked a lot of overtime and would work 10 or 11 hours a day. The three months prior to July 31, 2006 the employee averaged 41.6 hours per week. The employee testified that prior to that she worked more overtime.

The employee assembled emblems for Impala automobiles. There were two parts used in the process. The first was a precut two sided adhesive tape in the shape of an Impala that was attached to a plastic chrome Impala emblem. The two sided adhesive tape was on a coil/roll that was about the same size as a 14 inch auto tire and weighed about 30 pounds. There were approximately 2500 tapes on each roll. Once or twice a

shift the employee had to load a new roll onto a spindle that was located to her left side. The roll would be strung across the employee at head level and was loaded above shoulder level.

The employee would get a supply of emblems off a rack above her head every hour and a half using both extremities which would take a couple of minutes. The rest of the time her work was at head or face level or below.

To assemble each Impala emblem, the employee pulled one of the tapes off the roll about head level. She would pull the adhesive off in two precut areas and then place the tape into a "fixture" which had to be adjusted to fit properly. She would then retrieve an emblem, inspect it, and load the emblem into the "fixture". The tape and the emblem had to be aligned by use of her hands including a lot of pushing. She had to swipe with her hands to remove any residue from the part. She then would start a press machine which was located at waist level. She would press and hold buttons until the press completed its cycle. She removed the emblem from the fixture, put down foam, and peeled the tape off the emblem, and put it into a tote (box). She would sometimes carry a tote (box) of emblems. The employee's quota was 180 Impala emblems per hour which is 3 emblems per minute. If she worked 10 hours a day, it would be 1800 completed emblems per day. She usually met or exceeded her quota.

Claimant's Exhibit F is the tape used in the process. Claimant's Exhibit F is the completed Impala emblem. Since January of 2007, they have been assembling different sizes and shapes of emblems.

Dalton Demman, the employer's Acrylic Business Unit Manger testified. He oversees the tape assembly operation. The emblems that are currently being made are similar to the prior ones but the tape is now clear Mylar instead of the blue liner. The new tape makes the job less difficult. The tape assemblers' work above the head is very minimal. The assemblers pull tape with every emblem. Sometimes the inside circle is not there which means the assembler does not have to pull the inside circle out. The tape process does not always work, the freshly cut tape does not always work well, and the emblem does not always fit. The quota for the tape assemblers is 180 emblems an hour. The employee is currently working as a tape assembler and her quantity of her work is good and she meets quota.

The employee testified that in approximately 2004, she started having shoulder problems including a lot of aching when she was picking the totes off the rack. She had pain in her right shoulder when she buckled down. She had more problems going above her shoulder and had numbness in her hands. She did not have any activities outside of work and had no injuries to her shoulder. In 2004, the employee notified her supervisor about her problems but did not ask for medical treatment. Her shoulder problems progressed where she had problems doing her job. In 2006 she told her supervisor, Sandra Cramp about her problems and requested that she be sent to a doctor. The employer sent her to Dr. Krewet for the problems in her shoulder, elbow and wrist which were mainly at that time on the right side.

The employee saw Dr. Krewet on July 7, 2006. The employee noted problems for several years with right shoulder, neck, elbow and hand pain which had gradually been getting worse. The employee had numbness in the thumb and index finger. The employee had a sore elbow from time to time and neck pain more on the right. In the neck examination, the employee had some tenderness laterally and posteriorly on the right and in the area of the trapezius. The right shoulder revealed some tenderness in the area of the AC joint with some crepitus with rotational movements. The employee had difficulty raising her arm to the horizontal. External rotation produced a fair amount of pai