Cindy Spittler v. Coin Acceptors, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-035004

Employee: Cindy Spittler

Employer: Coin Acceptors, Inc.

Insurer: Self-Insured c/o Corporate Claims Management

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated January 19, 2010. The award and decision of Administrative Law Judge L. Timothy Wilson, issued January 19, 2010, 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 $\qquad 28^{\text {th }}$ day of April 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Cindy Spittler

Injury No. 07-035004

Dependents: N/A

Employer: Coin Acceptors, Inc.

Insurer: Self-Insured

c/o Corporate Claims Management

Additional Party: N/A

Hearing Date: December 3, 2009

Checked by: LTW

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: April 20, 2007
5. State location where accident occurred or occupational disease was contracted: Howell, 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: In performing her work duties, Claimant sustained injuries to both feet.
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: both lower extremities
14. Nature and extent of any permanent disability: 22.5 percent permanent partial disability to the body as a whole referable to the bilateral plantar fasciitis and peroneal tendonitis.
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer: 1,760.00
2. Employee's average weekly wages: 386.00
3. Weekly compensation rate: $257.00 TTD/PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

1. Second Injury Fund liability: No

TOTAL: $32,820.26

1. Future requirements awarded: Future medical is provided as per Award.

Said payments to begin immediately 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: Kenneth Wagoner, Esq.

Employee: Cindy Spittler

Injury No. 07-035004

Dependents: N/A

Employer: Coin Acceptors, Inc.

Insurer: Self-Insured

c/o Corporate Claims Management

Additional Party: N/A

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on December 3, 2009. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about December 24, 2009.

The employee, Cindy Spittler, appeared personally and through her attorney, Ken Wagoner, Esq. The employer Coin Acceptors, Inc., d/b/a Mountain View Fabricators, appeared through its attorney, Mark Kornblum, Esq.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about April 20, 2007, Coin Acceptors, Inc., was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully self-insured, with its benefits being administered by Corporate Claims Management.

(2) On the alleged injury date of April 20, 2007, Cindy Spittler was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) The contract of employment between the above-referenced employee and employer was made in Missouri. Further, the alleged incident of occupational disease occurred in Howell County, Missouri. Venue is proper.

(4) The employee notified the employer of her injury as required by Section, 287.420, RSMo.

(5) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(6) At the time of the alleged incident of occupational disease, the employee's average weekly wage was $\ 386.00, which is sufficient to allow a

compensation rate of $\ 257.00 for both temporary total disability compensation and permanent disability compensation.

(7) Temporary disability benefits have not been provided to the employee under Chapter 287, RSMo.

(8) The employer has not provided medical treatment to the employee under Chapter 287, RSMo.

The sole issues to be resolved by hearing include:

(1) Whether the employee sustained an incident of occupational disease on or about April 20, 2007; and, if so, whether the incident or occupational disease arose out of and in the course of employment?

(2) Whether the alleged incident of occupational disease caused the injuries and disabilities for which benefits are now being claimed?

(3) Whether the employer is obligated to pay for certain past medical care and expenses in the amount of $\ 1,760.00 ?

(The parties stipulate that the employee has received medical care, which has been paid through the employer's group health insurance plan. The aforementioned medical expenses of $\ 1,760.00 represent payment of co-pays and deductibles by the employee. The employee is not seeking repayment of monies paid by the employer under the group health insurance plan and the employer agrees to hold the employee harmless for payment of said medical expenses in the event the claim is found compensable and medical expenses are determined to be owed under Chapter 287, RSMo.)

(4) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee of the effects of the injuries?

(5) Whether the employee is entitled to temporary total disability compensation?

(The employee seeks past temporary total disability compensation, payable for the period of February 8, 2008 to September 11, 2008. In context of this issue, the parties stipulate that the employee was temporarily and totally disabled for the period of February 8, 2008 to September 11, 2008.)

(6) Whether the employee sustained any permanent disability as a consequence of the alleged incident of occupational disease; and, if so, what is the nature and extent of the disability?

(7) Whether the employer is entitled to a credit against any award for payment of temporary total disability compensation, based on payment of short term disability compensation by the employer for the period the employee was temporarily and totally disabled, as made under the employer's short term disability policy?

The employee testified at the hearing in support of her claim. In addition, the employee offered for admission the following exhibits:

Exhibit A. Report of Injury

Exhibit B. Complete Medical Report of David T. Volarich, D.O.

Exhibit C. Medical Records from St. John's Clinic

Exhibit D. Deposition of Lynn Roberts

The exhibits were received and admitted into evidence

The employer and insurer presented two witnesses at the hearing of this case - Mary Prange and Linda Mounce. Further, the employer and insurer offered for admission the following exhibits:

Exhibit 1. Complete Medical Report of John O. Krause, M.D.

Exhibit 2. Complete Medical Report of David C. Hicks, M.D.

Exhibit 3. Photograph of Work Area

Exhibit 4. Photograph of Work Area

Exhibit 5. Photograph of Work Area

Exhibit 6. Photograph of Work Area

Exhibit 7. Photograph of Work Area

Exhibit 8. Photograph of Work Area

Exhibit 9. Photograph of Work Area

Exhibit 10. Photograph of Work Area

Exhibit 11. Photograph of Work Area

Exhibit 12. Photograph of Work Area

Exhibit 13. Photograph of Work Area

Exhibit 14. Copy of Employee's Wage Statement

Exhibit 15. Photograph of Work Area

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took official or judicial notice of the documents contained in the Legal File, which include:

- Notice of Hearing

- Request for Hearing-Final Award

- Answer of Employer to Claim for Compensation

- Claim for Compensation

- Report of Injury

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

The employee, Cindy Spittler, is 53 years of age, having been born on July 15, 1956. Ms. Spittler is married and resides with her husband and three children in Mountain View, Missouri.

Ms. Spittler is 5' 1" tall, and weighs approximately 180 pounds. Further, Ms. Spittler graduated from high school and attended college.

Cindy Spittler obtained employment with Coin Acceptors, Inc., d/b/a Mountain View Fabricators, in January 1999. For approximately the first seven years of her employment, she worked on the assembly line at various jobs. The assembly involved "coin acceptors," which were described in evidence as small devices which are a part of a vending machine that accepts coins deposited by purchasers.

In her employment with the employer during the first seven years, Ms. Spittler had some jobs which were primarily sitting. She had others that involved considerable standing, but in the standing jobs she had a pad to stand on. None of her prior jobs involved frequent or constant ladder climbing or standing ten hours a day on concrete floors without a pad.

Ms. Spittler acknowledged that, during this first seven years of her employment, she had no trouble with her feet. The medical records from the St. John's Clinic in Mountain View indicate that, during this period of her employment with the employer, Ms. Spittler voiced no complaints concerning her feet. And it is undisputed that Ms. Spittler had no prior complaints relating to her feet.

In early 2006 the employer underwent change in its manufacturing operation, which involved phasing out its coin acceptors assembly and moving this work to China. As a consequence, Ms. Spittler applied for and was given opportunity to continue employment with the employer by transferring to the company's soda machine refurbishing line. Notably, Ms. Spittler was one of the first employees