Opinion
CLAIM NO. E709669
OPINION FILED MAY 26, 2000
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by MICHAEL HAMBY, Attorney at Law, Greenwood, Arkansas.
Respondent represented by BETTY DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed
OPINION AND ORDER
The claimant appealed a decision of the Administrative Law Judge filed on January 4, 2000,
that he failed to prove by a preponderance of the evidence the compensability of his left arm and neck injuries. Claimant made the argument that his testimony was sufficient to show that he engaged in rapid repetitive motion, and that his injury occurred while engaged in such activity, and flared up again when doing other jobs for respondent. Respondent argued in favor of the opinion of the Judge. After our de novo review of the entire record, we find that claimant failed to prove by a preponderance of the evidence that he suffered a compensable injury. We affirm the Administrative Law Judge's opinion.
The first point to be made is that while we do not credit every statement that claimant has made in this record to be truthful, we do not necessarily imply that claimant is a malingerer or lazy as asserted in his brief. We believe that claimant has suffered significant medical misfortune in his life which has impacted him psychologically, as noted by Dr. Rutherford and others. His medical history indicates that he has demonstrated a propensity to exaggeration. For example, Dr. Rutherford noted that claimant presented to him with complaints of weakness in his hands, but that when the doctor emphatically stated that there is no possible connection between the weakness he was demonstrating and a diagnosis of carpal tunnel syndrome, claimant thereafter demonstrated normal hand strength. The medical evidence shows most strongly that claimant has problems which have been unresponsive to treatment and surgery, which are inconsistent with his diagnoses and with his objective and clinical findings, which are at times under his control, and which could have a psychological root related to the difficulties he has experienced including a droopy eyelid since childhood, the loss of that eye during surgery to correct the droopy eyelid, diabetes, Hodgkins disease (successfully treated and in remission), gastrointestinal difficulties and depression.
In regard to whether claimant proved that he was engaged in rapid repetitive motion sufficient to satisfy the requirements of Ark. Code Ann. Section 11-9-102(5)(A)(ii)(a), claimant relies on his testimony. Claimant testified that he was an assembler for 3 years. He stated that while he worked under supervisor Wayne Bonds, he used a scraper to remove excess plastic off of plastic parts coming out of the machine. He stated that hundred of parts were processed every night and that he had two ten minute, and one twenty minute, breaks. The parts weighed up to 30 pounds. He was required to scrape the plastic, lift the part off the line, place it in a machine which drilled holes in the part, clean the shavings from the holes, hammer a logo onto the part and place the part in a box.
Wayne Bonds testified that he was claimant's supervisor for maybe 3-4 months, prior to 1995, while claimant did rotational molding which was trimming, drilling, scraping and packing parts. Some parts needed drilling, and some did not. The parts weighed between __ pound and 5 pounds. One part out of particular set of parts to make a toy required a logo. On the average, 100 parts would be processed on a shift. The conveyor belt can be started and stopped to work at own pace, but employees must keep up with the machine and the quota. Several employees process the parts together, and the machine cycles on and off while it makes the parts. Bonds did not recall claimant complaining.
Claimant also testified that while he worked under supervisor Richard Tucker he scraped, torched (melted plastic to seal and smooth seams), operated the drilling machine and hammered on the logo. Again the number of parts processed was in the hundreds. He stated that he was required to keep up with the machine.
Claimant also drove a forklift in two departments for a total of about three months. He then moved to night watchman and janitorial duties. Nowhere in his testimony did claimant describe any rapid repetitive motion involved in these positions. Later he worked in Assemble and Pack under Sarah Wall. Sarah Wall testified at the hearing that she was the group leader in Assembly and Pack, where toys were re-worked. There was no quota in this department. Toys were torn down to their parts and reassembled using only the good parts. Screwdrivers, scrapers and torches were used. The complete toys weighed between 5 and 25 pounds. The length of a shift was eight hours. Wall recalled that claimant had trouble scraping and went to light duty. After that he complained about his hand. Claimant had regular attendance. Wall stated that she had worked for respondent for 29 years, mostly in the Assembly and Pack area.
Eileen Campbell, the personnel manager for respondent, was in charge of benefits and workers compensation in 1995 through 1997. She stated that there were only one or two toys weighing 35 pounds manufactured while claimant was employed. She also stated that those toys would weigh was 35 pounds only after being fully packed and in boxes ready to assemble. There was not a single part to be scraped that weighed 35 pounds. She explained that scraping is steady work, with several workers on one line. She stated that the machine cycled, and sometimes it was spitting out parts and sometimes it was not. The torch used for melting the plastic and smoothing the edges is about twelve by four inches. She explained that the drill is automated and once the part is loaded the employee just pushes a button. Logos are on one part for each individual toy. It may be that every part coming out of the machine on one particular run requires a logo, but not every part that ever comes out of the machines. Many runs would not require logos at all.
Claimant testified that he disagreed with Campbell's testimony because when he was in Assembly and Pack they had 10 — 15 "humongous" cars to stack and unstack and that he did it all so that the ladies on the line did not have to. He also stated that the logos sometimes went on every part that came out of the machine, which in fact does not conflict with Campbell's testimony.
It is our opinion that when viewed together the testimony indicates that the claimant was required to do a variety of tasks, that the tasks were in close succession but that he had control over the speed of the tasks and also there were breaks in the tasks as the machine making the parts cycled. His testimony that the number of parts processed in a shift was in the hundreds appears to be an exaggeration, and we credit Bonds' testimony that on the average one hundred parts were processed on a line in a shift. However, more than one person was processing those parts. There were several people on the line performing the same job as claimant. Of the testimony in the record, there is not a preponderance of the evidence to prove that claimant was engaged in rapid and repetitive activity.
In Le v. Superior Industries, Full Commission Opinion Filed February 12, 1999 (WCC No. E708248), the Commission determined that the claimant's position required rapid and repetitive motion sufficient to satisfy the Act where the claimant handled approximately 30 tire rims per hour for 50 or more hours per week. She processed approximately 300 wheels per shift using essentially the same four steps: (1) lifting a wheel rim onto a table, (2) sanding the wheel with a circular motion, (3) deburring the wheel with a pneumatic grinder, (4) lifting the wheel onto a cart or bin. When the plant ran chrome wheels, the claimant was also required to use a four-pound stamper and a five pound shop hammer to mark each wheel. The tasks were clearly repetitive. The Commission applied the analysis of the Court of Appeals in Boyd v. Dana Corp., 62 Ark. App. 78, 966 S.W.2d 946 (1998), to determine that the tasks were performed rapidly under the Act:
In Boyd, the Court of Appeals compared the duties of a worker who repeated a four-step metal fabricating process approximately 100 to 125 times per shift to the duties of a delivery man whose repetitive motions were separated by intervals of several minutes in the case of Lay v. United Parcel Service, 58 Ark. App. 35, 944 S.W.2d 867 (1997). In comparing these two situations, the Court of Appeals in Boyd found that the metal fabricating process involving 100 to 125 parts per hour was sufficiently rapid and repetitive to satisfy the requirements of Act 796 of 1993. In this regard, the Court stated:
[I]n the instant case, the evidence is that the appellant's series of repetitive motions were performed 115 to 120 times per day separated by periods of only 1.5 minutes, and we do not think that this brief interval rises to a period of "several minutes or more" as stated in Lay. Boyd, Supra, at 83.
In McDonald v. Tyson Foods, Inc., Full Commission Filed June 3, 1999 (WCC No. E713336), the Commission discussed several cases establishing guidelines for cases involving rapid repetitive motion:
First, in Baysinger v. Air Systems, Inc., 55 Ark. App. 174, 934 S.W.2d 230 (1996) the Court held that multiple tasks may be considered together in determining whether the repetitive requirement has been met. In Kildow v. Baldwin Piano and Organ, 58 Ark. App. 194, ___ S.W.2d ___ [ 948 S.W.2d 100] (1997) the Court held that the ordinary meaning of rapid means swift or quick. In Lay v. United Parcel Service, 58 Ark. App. 35, 944 S.W.2d 867 (1997) the Court of Appeals declined to find work duties satisfied the definition of rapid repetitive motion when the duties or tasks were separated by periods of several minutes or more. In reviewing the Court of Appeals prior decisions, the Arkansas Supreme Court in Anna Malone v. Texarkana Public Schools, ___ Ark. ___ [ 333 Ark. 343], ___ S.W.2d ___ [ 969 S.W.2d 644] (May 28, 1998) determined that the rapid repetitive motion requirement establishes a two prong test "(1) the task must be repetitive, and (2) the repetitive motion must be rapid." The Court further stated:
As a threshold issue, the tasks must be repetitive, or the rapidity element is not reached. Arguably, even repetitive tasks and repetitive work, standing alone, do not satisfy the definition. The repetitive tasks must be completed rapidly.
The claimant in McDonald failed to satisfy the elements of proof for a gradual onset injury. Her physicians opined that the claimant's work was conducive to or was sufficient to account for the claimant's clinical findings. However, this was insufficient to a finding that the claimant had satisfied the rapid repetitive motion element of proof necessary to prove the compensability of her claim. "Claimant must present more evidence than medical opinions linking her condition to her work." The claimant had failed to satisfy her burden of proof where there was no evidence with regard to the rate of speed within which the claimant performed the tasks of lifting the belts on the machine which she contended was the repetitive task responsible for her injury. On cross-examination, the claimant was asked how long it would take for her to lift the wire belts for bracing, to which she responded:
It depends on what kind of mood you are working in. If you in a hurry, it's going to take anywhere from ten minutes, maybe a little bit longer, but if you are just taking your time — I can't tell you how long it takes, I really can't. Because everybody is different and I haven't been doing that in so long and all.
In Rodman v. ACX Technologies, Full Commission Opinion Filed July 8, 1999 (WCC No. E804579), the Commission discussed the above cases and went on to note that the Court of Appeals had recently stated the it "must consider the positioning of the part of the body as well as the number of movements the claimant has to undergo to determine if the movement is `rapid and repetitive,'" in Patricia Patterson v. Frito-Lay, Inc., ___ Ark. App. ___ [ 66 Ark. App. 159], ___ S.W.2d ___ [ 992 S.W.2d 130] (April 14, 1999). In the Rodman claim, the claimant failed to prove a gradual onset cervical injury where there was no evidence as to the position of her neck or cervical spine during the repetitive tasks she performed with her upper extremities. The Commission also found that the claimant had failed to prove that the repetitive motions of her upper extremities were performed rapidly under the two-prong test set forth in Malone v. Texarkana Public Schools, because the claimant testified that "she had to be deliberate and careful in performing her job functions, but that she also tried to perform these deliberate and careful moves as fast as she could." The Commission stated that "this testimony does not satisfy the rapid repetitive motion requirement. There is void from the record any persuasive evidence which would establish the speed at which claimant performed her job duties."
It is our opinion that the record does not contain a preponderance of the evidence showing that claimant's activities were repetitive and rapid. The testimony of claimant and the other witnesses indicates that claimant's work was repetitive in that he had a set of tasks to perform on the parts being made by the machine he was assigned and that the machine would produce approximately 100 parts in a shift. However, the testimony also indicates that there were periods of time in which the machine was cycling and not actually putting out parts for the line workers to finish. More importantly, the testimony indicates that claimant shared the tasks with other employees assigned to the same machine and assembly line. Beyond that, the record is insufficient to determine the number of movements or tasks claimant completed in an hour or a minute or a shift. There is not sufficient evidence to support a finding of rapid repetitive motion.
The claimant in Le performed a four step process on 30 tire rims per hour in a 50 hour work week, which satisfied the rapid repetitive motion requirement. The evidence before us does not indicate that claimant was under such demands. In Boyd, the claimant performed a four step process on 100 to 125 items a shift, separated by approximately one and one half minutes, which was sufficient to find rapid repetitive motion. There is no evidence to show that claimant performed similar feats. His assembly line as a whole processed 100 parts per shift, on which claimant was but one of several employees performing the same tasks. There is no evidence to show the length of time between tasks during the machine's cycles or the number of parts or tasks claimant actually performed in a day. (It is perhaps worth noting that claimant, in 1995 and forward, had one prosthetic eye, and one sighted eye, and that the function in his sighted eye was less than full.)
Claimant's concern that the Administrative Law Judge did not rely on the opinions of some of his physicians that his difficulties were due to rapid repetitive activity at work is addressed in the McDonald case, supra, in which the Commission stated that claimants must present evidence of rapid and repetitive motion, and not just medical opinion, to prove that the work was rapid repetitive motion within the Act. Furthermore, it is clear from the medical records that the opinions as to rapid repetitive motion are based on claimant's own descriptions and not on any objective knowledge of the physicians.
After our de novo review of the evidence, we find that claimant has failed to prove by a preponderance of the evidence that claimant suffered a compensable gradual onset injury because the evidence is insufficient to support a finding of rapid repetitive motion. We affirm the Administrative Law Judge's opinion.
IT IS SO ORDERED.
_______________________________
MIKE WILSON, Commissioner
DISSENTING OPINION
I must respectfully dissent from the majority opinion in this case. In my opinion, claimant proved that he sustained compensable injuries to his elbow (cubital tunnel syndrome), neck and back.
Claimant was hired to work for respondent employer in 1993. His employment continued until July of 1997. Initially, claimant worked as an assembler. This entailed removing plastic toys from a conveyor belt, and scraping off excess plastic. On some occasions, it was necessary for claimant to place the plastic parts in a machine so that holes could be drilled. Also, a rubber mallet was used so that a medallion featuring the company logo could be placed on some of the parts. Claimant handled several hundred parts each shift. He stated that these duties involved rapid and repetitive motion.
Claimant developed pain, weakness and numbness in his left forearm, wrist and hand. After reporting the problem, he was referred to the company physician, Dr. Craft. In a chart note dated June 1, 1995, Dr. Craft stated that "complaint primarily revolves around the elbow to hand area." He diagnosed left wrist and forearm tendinitis, and treated claimant conservatively with splints. Also, Dr. Craft imposed a light duty work restriction upon claimant.
Claimant was reassigned, performing a variety of jobs for respondents until his employment separation.
Following a layoff, claimant was assigned to the A P Department. He explained that those letters represent the terms "pack and assemble." In this department, toys that had been returned were reworked. According to claimant's testimony, this entailed:
torching, scraping, putting them back together, making seconds, put them back in the box for them to put them back in the warehouse.
In a chart note dated June 19, 1997, Dr. Craft noted that the symptoms for which he treated claimant in 1995 resolved after claimant was reassigned to janitorial work. Claimant informed Dr. Craft that he was placed in the A P department. As a result, he experienced a flare-up of his symptoms. Dr. Craft determined that claimant should not return to A P stating that: "I feel like that if he could return to janitorial type duties where he has less repetitive type motion that his symptoms would once again stabilize."
Dr. Craft prescribed physical therapy, which was done in July of 1997. Claimant reported symptoms in his left forearm and hand. Specifically, he complained of throbbing, burning, weakness, and numbness. This treatment was ineffective, and in August of 1997, Dr. Craft referred claimant to Dr. E.F. Still. The patient history contained in a chart note dated August 6, 1997, stated that claimant reported a tremor, mostly limited to the ulnar digits. The tremor ultimately disappeared. Dr. Still also suspected that claimant had RSD, and opined that a referral to a pain specialist was warranted.
Dr. Still's chart note also showed that claimant had electrodiagnostic studies done in 1995 and 1997, with the former being mildly positive and the latter reflecting no indication of carpal tunnel syndrome, or compression syndrome in the arm. Based on the clinical examination he performed, which indicated claimant had carpal tunnel syndrome, Dr. Still elected to proceed with surgery. During surgery on August 14, 1997, he discovered nerve compression at the wrist. Accordingly, he released the median and ulnar nerves. Respondents accepted liability for claimant's carpal tunnel syndrome.
Following surgery, claimant remained symptomatic. Electrodiagnostic testing was performed by Dr. David Miles in December of 1997. His report contained the following conclusion:
The electrodiagnostic studies do document and demonstrate a tardy ulnar nerve syndrome at the elbow on the left side. . . . There is no evidence for a recurrent or persistent carpal tunnel syndrome on the left side. If the patient had carpal tunnel syndrome, it has now certainly returned to normal. There is no evidence of nerve root irritation in the cervical region on the left side.
In August of 1998, claimant was examined at the Eastern Oklahoma Orthopedic Center. He reported left extremity pain and numbness. Claimant also complained of pain radiating into his shoulder and neck. On August 25, 1998, he was examined by Dr. Varsha Sikka. A neurological exam showed a positive Tinel's sign at the elbow. The report of her examination revealed the following impression:
1. Neuropathic pain at the C8-T1 distribution, secondary to ulnar nerve involvement.
2. Early causalgic pain syndrome.
3. Status post carpal tunnel release on the left side.
4. Anxiety/Depression.
5. Nicotine habit, patient was advised to taper off of the cigarettes.
Dr. Sikka referred claimant to Dr. David K. Wong.
Electrodiagnostic testing showed the presence of cubital tunnel syndrome.
Dr. Wong performed surgery on November 25, 1998.
Following surgery, claimant's recovery failed to progress as anticipated. Although he experienced some improvement, he still had significant neck and arm pain. Thus, Dr. Wong referred claimant to Dr. Mark Hayes. According to Dr. Hayes's chart note for April 8, 1999, a MRI showed "a fairly significant disc protrusion at C6-7." Also, the test revealed disc pathology at C5-6. Dr. Hayes opined that claimant was disabled.
In a chart note dated February 11, 1999, Dr. Wong commented on the issue of causation:
I discussed [claimant's] work history with him in detail. He worked for Today's Kids for about four years. At this job, he scraped the excess plastic off of toys. He began having symptoms in 1995 and states these were documented by visits to the physician. Based on his complaints and his highly repetitive work that he did, it is my opinion that his complaints are related to his work. This, specifically, in regards to his cubital tunnel syndrome and need for surgery.
Claimant's difficulties began on the assembly line in 1995. After conservative treatment and reassignment, his symptoms resolved. Following a layoff, claimant returned to work performing somewhat similar duties in 1997. Although claimant no longer worked on an assembly line, he was still responsible for scraping, torching, and drilling toys. He was also responsible for stacking and unstacking cars on a pallet for female employees. Claimant stated that the cars weighed between 20-35 pounds. He only worked in A P for about two months; however, this was sufficient to cause a flare-up of his symptoms. Based upon the advice of the company physician, claimant was placed on light duty. His employment separation occurred shortly thereafter.
As stated, respondents accepted liability for his carpal tunnel syndrome. However, they have controverted his claim with respect to injuries to his neck back and elbow. In my opinion, claimant has proved by a preponderance of the evidence that all of his injuries are compensable. The fact that claimant was not performing a job involving rapid repetitive motion in 1997 is not dispositive with respect to compensability. This is because claimant's problems originated in 1995 when he was engaged in a job involving rapid and repetitive motion. Dr. Wong specifically stated that claimant's cubital tunnel syndrome was attributable to his assembly work. As early as May 18, 1995, claimant's arm pain is documented. Moreover, a review of Dr. Still's report of August 6, 1997, indicated that he did not know the extent of claimant's difficulties. Clearly, claimant's difficulties were not confined to his wrist. Respondents accepted liability for his carpal tunnel syndrome, and continued paying for claimant's medical treatment during the fall of 1997. Claimant testified that he has not worked since his employment separation in July of 1997.
I would also award claimant temporary total and permanent partial disability benefits.
Based on the foregoing, I respectfully dissent.
_______________________________ PAT WEST HUMPHREY, Commissioner