Gina Bommarito v. Nike, Inc.

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 November 10, 2008. The award and decision of Administrative Law Judge Edwin J. Kohner, issued November 10, 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 25th day of March 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

1. Are any benefits awarded herein? Yes

- Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

- Date of accident or onset of occupational disease: February 15, 2005

- State location where accident occurred or occupational disease was contracted: St. Charles County, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
2. Did employer receive proper notice? Yes
3. 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

1. Was employer insured by above insurer? Yes
2. Describe work employee was doing and how accident occurred or occupational disease contracted: The claimant, a machine operator, developed carpal tunnel syndrome in her left wrist.
3. Did accident or occupational disease cause death? No Date of death? N/A
4. Part(s) of body injured by accident or occupational disease: left wrist

- Nature and extent of any permanent disability: 20\% Permanent Partial Disability to left wrist

1. Compensation paid to-date for temporary disability: $\ 1,019.78
2. Value necessary medical aid paid to date by employer/insurer: None

Employee: Gina Bommarito Injury No.: 05-142344

1. Value necessary medical aid not furnished by employer/insurer? None

- Employee's average weekly wages: $\ 764.84

1. Weekly compensation rate: $\$ 509.89 / \ 354.05
2. Method wages computation: By agreement

COMPENSATION PAYABLE

1. Amount of compensation payable:

Settled

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential (\$155.84) payable by SIF for 35 weeks beginning February 9, 2006, and, thereafter, $\ 509.89 for Claimant's lifetime

Total: Unknown

1. Future requirements awarded: As above

Said payments to begin as of February 9, 2006, 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: C. Dennis Barbour, Esq.

This workers' compensation case raises several issues arising out of an alleged work related injury in which the claimant, machine operator, developed carpal tunnel syndrome. The sole issue for determination is Second Injury Fund claim liability. The evidence compels an award for the claimant for permanent total disability benefits.

At the hearing, the claimant and her son testified in person, and the claimant offered depositions of Jerry R. Meyers, M.D., and James E. Israel, personnel records from Nike, Inc., and medical records from Thomas E. Albus, M.D., B.J.C. Health Center, and St. Joseph Health Center Wentzville. The defense offered a deposition of James M. England, Jr., and a copy of a workers' compensation settlement.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the occupational disease was contracted in Missouri.

This forty-eight year old production worker developed carpal tunnel syndrome and suffered a twenty percent permanent partial disability to her left wrist as a result of her work. The claimant also suffers from a substantial preexisting permanent partial disability from a cerebral aneurysm from October 1988 and a stroke in December 1988. She filed a workers' compensation claim seeking permanent total disability benefits against the Second Injury Fund due to the permanent partial disability from her work related carpal tunnel syndrome in combination with the preexisting permanent partial disability from her right sided hemiparesis (severe but not complete paralysis) which affects, among other things, her right upper and lower extremities, her mental capacity and ability to talk.

The claimant dropped out of high school in the eleventh grade for personal reasons and began working as a maid at a local hotel. She does not have any post high school education or training. She married Steve Kaba but cannot recall the date or even the year when they divorced. Two children were born of that marriage. She then met and lived with Steve Brown and had twins around July 1988.

In October 1988, the claimant suffered a cerebral aneurysm requiring admission to St. Joseph Hospital in Wentzville, Missouri (f/k/a Doctor's and then Crossroads Hospital). The hospital discharged her on December 22, 1988, but readmitted her on December 24, 1988, with a diagnosis of "right hemiparesis and slurred speech post craniotomy for a left posterior cerebral communicating artery aneurysm..." On January 4, 1989, the hospital discharged her with a diagnosis of "severe infarction left parietal area due to angiospasm post craniotomy, aneurysm" and transferred her to St. Joseph Hospital in St. Charles where she underwent rehabilitation for the residuals associated with that stroke. See Exhibit C. One immediate consequence of the stroke was that she could not identify her children. She had to relearn her alphabets with her twins who were then 6-8 months old. She currently experiences difficulty processing information, reading, writing, performing basic math, speaking and understanding other matters.

She received assistance from the Division of Vocational Rehabilitation (which maintains records for 5 years) sometime in the early 1990's which helped her retrain for potential employment. With the Division's help she obtained a job with Centaur Janitorial which placed her at a local company where she worked from

1994 to 1999 as an office cleaner/custodian. Her duties included cleaning restrooms, break rooms, lunchrooms, and offices. Her job accommodated her in terms of allowing her to work at her own pace on certain tasks such as cleaning restrooms but not with other tasks such as cleaning the lunchroom which needed to be cleaned within an allotted time. She relied upon her co-employee to clean the lunch room in the time allotted. She is right hand dominant and compensated, to some degree, the deficiency of the right upper extremity by relying upon the left upper extremity for jobs, such as vacuuming, that would normally be done using her right dominant hand. She worked with another individual, usually a man, who was responsible for performing the "heavy work" such as emptying the mop bucket and assisting her with other cleaning. She testified that the accommodations were due to her right side paralysis.

In April 1999, she began working for this employer which produces plastic inserts for shoes and other products. She worked three (3) shifts at twelve (12) hours per shift (but paid for 40 hours) and eventually began working overtime resulting in an average of about 50 hours per week. Her regularly scheduled work shifts were Friday-Sunday 5:15 p.m. to 5:00 a.m., were less physically demanding, and did not require as much production as other shifts. Likewise, the overtime time shifts were less demanding. She worked shifts that did not require as much production and could accommodate her decreased dexterity, lifting capacity, motor skills, and other limitations from her right sided paralysis. In addition, other employees assisted her when necessary because of her limitations. They assisted her by doing the heavier lifting, by swapping machines from a high production machine to a lower production machine when necessary or by helping her on her assigned machine whenever she fell behind in production.

Her job title was "blow molder operator." There were 18 machines in her department, but she was restricted from using about 10 of those machines due to her physical limitations, such as decreased lifting capacity and bimanual dexterity, from the right sided paralysis. One machine to which she was assigned required her to repeatedly insert plastic pieces 12 to 14 inches in length and weighing a few ounces to a couple of pounds into a machine which then cut the plastic into smaller pieces. Another machine was a grinder which ground up the unused plastic. See Exhibits D, H, M. The 2004 Skills List Evaluation outlines nineteen skills and attributes of the blow molder position. See Exhibit D. A legend provides a visual grading system the supervisor utilizes when assessing an employee's competency regarding these skills and attributes. The highest grade that the claimant achieved was that of a "beginner" on any of the skills and attributes required by her job. According to the legend a "beginner" is one who can only perform the job with supervision. She received the lowest grade possible in the category that required her to be familiar with the business terminology and to know the names, location and intended uses of the various machines in her department. She also received the lowest grade possible in the category involving loading parts into the machine and keeping pace with the speed setting at maximum as well as with the correct labeling and packaging procedures. This is consistent with her testimony concerning why she chose certain shifts and the need for assistance from fellow employees.

In January 2005, the claimant developed numbness and difficulty with fine motor skills in her left hand and so advised her employer who instructed her to go to her personal physician, Dr. Grus. See Exhibit B. On February 14, 2005, Dr. Grus examined the claimant and observed that the claimant's left hand was slightly swollen with decreased grip strength. His impression was tendonitis of the left arm consistent with a work related condition and referred t