Opinion
CLAIM NO. E912487
ORDER FILED JUNE 22, 2001
Upon remand before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DERIC YOAKLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE JAMES A. ARNOLD II, Attorney at Law, Fort Smith, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondents appeal an Administrative Law Judge's decision filed September 15, 2000, wherein claimant was awarded benefits for a gradual onset injury to his cervical spine. Upon our de novo review of the entire record, we affirm the Administrative Law Judge's Opinion.
At issue is whether claimant sustained a compensable gradual onset injury and the standard used to measure compensability. Respondents argue that, in light of Hapney v. Rheem Manufacturing Co., 342 Ark. 11, 26 S.W.3d 777 (2000), the Administrative Law Judge applied the wrong standard when awarding claimant benefits based on a gradual onset-type injury to his cervical spine.
In Hapney v. Rheem Manufacturing Co., 341 Ark. 548, 26 S.W.2d 771 (2000) (hereinafter Hapney I), the Arkansas Supreme Court ruled that for purposes of Act 796, the neck was considered to be the same as the back so that rapid repetitive motion need not be proved for compensation purposes. This decision was later reversed on re-hearing. Hapney v. Rheem Manufacturing Co., 342 Ark. 11, 26 S.W.3d 777 (2000) (hereinafter Hapney II).
Respondents here object to claimant's award on the basis that the Administrative Law Judge failed to make findings on rapid repetitive motion.
History
Claimant is an 11-year employee of respondent-employer. His duties included boxing motors and tying leads. The claimant would clean the motors and then place them in shipping boxes. The motors consisted of a horse and a half, a three-wire horse and a half motor, each weighing approximately 27 pounds. Each box was approximately 1 ½ feet tall and was filled with approximately 30 motors. Each motor was placed into a different section before each box was sealed. Claimant testified that he filled approximately 1 ½ boxes per hour. Claimant stated that his work requires him to abduct his shoulder 100 times per day. (Claimant's Ex. 1, p. 4).
On October 9, 1999, claimant was boxing motors at respondent-employer's plant when he was injured. At approximately 7 a.m., claimant testified, he had just picked up a motor and placed it in a box when he felt pain in his shoulder. He stated that he worked an additional two hours then went home because of a burning sensation in his shoulder/neck area.
Claimant said that he failed to report his injury at the time of occurrence because it was Saturday (not a normal workday) and there was no supervisor on duty. Instead, claimant told a co-worker that he was going home because his shoulder hurt. Claimant's mother (a 25-year employee of the respondent-employer) and claimant's wife notified the respondent-employer the following Monday of claimant's injury. On the same Monday, claimant saw Dr. Bud Mehan who performed a skeletal alignment. Claimant returned to work a normal shift the next day.
Claimant stated that he told the doctor that he had not had an accident at work because he assumed an accident to be something akin to a slip or fall. Claimant stated that he did inform the doctor that he felt the pain while at work. Although claimant continued to work normal shifts, by mid-week he was experiencing more pain in his shoulder and headaches in the back of his head.
Claimant testified that on October 16, 1999, he again injured his neck while he was tying leads, which consisted of wrapping rubber bands around electrical wiring attached to the motors. He stated that he turned when someone called his name and felt a pop in his neck.
Claimant received three additional skeletal alignments between October 11 and October 18, 1999, for pain in his shoulder and neck area. Claimant received MRIs of his shoulder and his neck and ultimately received a cervical fusion on his neck. Dr. Knox, claimant's neurosurgeon, stated within a reasonable degree of medical certainty that claimant's injury is work related and is a major cause of his need for treatment. (Claimant's Ex. 1, p. 30).
ADJUDICATION
Rapid Repetitive Motion
To be compensable, an injury must be established by medical evidence supported by objective findings, which are defined as findings that cannot come under the voluntary control of the patient. Continental Express, Inc. v. Freeman, 66 Ark. App. 102, 989 S.W.2d 538 (1999). Ark. Code Ann. § 11-9-102 (5) (Supp. 1999), further provides in pertinent part:
(A) "Compensable injury" means:
(i) An accidental injury causing internal or external physical harm to the body. . .arising out of and in the course of employment which requires medical services or results in disability or death. An injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence.
An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(a) caused by rapid repetitive motion;
A back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence. . .
Hapney II reversed its earlier holding that the gradual onset for back injuries specified in Ark. Code Ann. § 11-9-102(4)(A)(ii)(b) (Supp. 1999), applied also to neck or cervical spine injuries.
The court stated that this erroneous decision was based on a Kentucky case that cited the American Medical Association's Guide to the Evaluation of Permanent Impairment (1st ed. 1977) that defined the cervical vertebrae as part of the back. Newberg v. Thomas Industries, 852 S.W.2d 339 (Ky.App. 1993). On the contrary, the court stated that the back, neck, and spine are three distinct parts of the body. Thus, a gradual onset type neck or spine injury must be shown by rapid repetitive motion.
To prove a rapid repetitive motion injury under Ark. Code Ann. § 11-9-102 (4)(A)(ii)(a) (Supp. 1999), a claimant must show by a preponderance of the evidence that the injury: (1) arose out of and in the course of employment; (2) caused internal or external physical harm to the body requiring medical services; (3) was caused by rapid repetitive motion; and (4) was the major cause of the disability or need for treatment. High Capacity Prods. v. Moore, 91 Ark. App. 1, 962 S.W.2d 831 (1998).
In addition, the Court of Appeals has expanded the definition of "rapid repetitive motion" beyond an earlier definition that required the motions to be "exact, or almost exactly, the same movement again and again." Baysinger v. Air Systems, Inc., 55 Ark. App. 174, 934 S.W.2d 230 (1996) (cited in Malone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W.2d 644 (1998)). Malone discusses that portion of Baysinger which refined that earlier definition "to include multiple tasks involving different movements which could be considered together to satisfy that repetitive element of `rapid repetitive motion.'" Malone, 333 Ark. at 349, 969 S.W.2d at 647.
Thus, in Malone, the Arkansas Supreme Court devised a two-part standard to determine whether an injury was caused by rapid repetitive motion: (1) the tasks must be repetitive, and (2) the motions must be rapid. Malone, 333 Ark. at 350, 969 S.W.2d at 647. In Malone, the court further stated as follows: "As a threshold issue, the tasks must be repetitive, or the rapidity element is not reached. Arguably, even repetitive tasks and rapid work, standing alone, do not satisfy the definition. The repetitive tasks must be completed rapidly." Id. at 969 S.W.2d at 347-48. In Malone, the court held that a woman who worked as a custodian did not perform rapid repetitive motions, even though her job required numerous movements repeated many times a day, because the movements were different and separate in time. Id. at 969 S.W.2d at 648.
Claimant contends that he sustained an injury by rapid repetitive motion because he was required to abduct his shoulder 100 times per day in performing his employment duties. He asserts that he engaged in rapid repetitive motion more than 41,000 times during the course of his employment with respondent-employer. (Claimant's Brief to the Commission, p. 4). We find that claimant's work activity does constitute rapid repetitive motion.
Objective medical findings, including a biceps reflex, depressed sensation over the C6 dermatome, and an MRI scan showing a herniated disc at C5-6 on the left, established that claimant sustained an injury. And claimant testified, and we so find, that he sustained this injury while working.
CONCLUSION
These findings, coupled with Dr. Knox's opinion — stated within a reasonable degree of medical certainty — that claimant's injury is work related and is a major cause of his need for treatment, direct a conclusion of compensability. Accordingly, this Commission finds that claimant proved that he sustained a gradual onset-type injury of his cervical spine.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision in accordance with Ark. Code Ann.§ 11-9-809 (Repl. 1996). For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
______________________________ SHELBY W. TURNER, Commissioner
______________________________ MIKE WILSON, Commissioner
I concur in the principal opinion's award of benefits. I write separately to address the dissent's assertion that the claimant failed to prove by a preponderance of the evidence that his cervical injury was caused by rapid repetitive motion.
For my part, I note that the frequency of the repetitive motor lifting in this case (90 motors per two hours) appears to far exceed the frequency of the repetitive motions at issue inBoyd v. Dana Corp., 62 Ark. App. 78, 966 S.W.2d 946 (1998), which was cited with approval by the Arkansas Supreme Court in Hapney v. Rheem Manufacturing Co., 342 Ark. 11, 26 S.W.3d 777 (2000). Our finding that the injured worker in Boyd did not engage in rapid repetitive motion was reversed by the Court of Appeals, as the Court of Appeals found that the employee's repetitive motions inBoyd did meet the statutory requirements. Consequently, the claimant's repetitive lifting in the present case also meets the statutory requirements, since the claimant's repetitive lifting in this case exceeds the frequency of the repetitive motions at issue in Boyd.
As to the other arguments in the dissenting opinion, I note that the claimant did not initially report a "work-related" injury, but I also note that the claimant sustained a gradual-onset nerve root impingement type injury in his neck, and as far as I can tell, the claimant likely had no reason to know whether or not the injury was work related until he described his job duties to a doctor for the doctor to decide whether or not these job duties were likely to cause a gradual-onset impingement injury. I also note that on the day that the claimant became injured at work, he was not performing his routine task of tying motor leads, but was instead performing a new task of boxing twenty-seven pound motors. I further note that the Administrative Law Judge has specifically found the claimant credible, and I note that the only relevant medical opinion in the record attributes the claimant's injury to his work.
For all of the above reasons, the claimant has established by a preponderance of the credible evidence that his cervical injury at issue was caused by rapid repetitive motion at work.
_______________________________ ELDON F. COFFMAN, Chairman
I respectfully dissent from the majority opinion finding that the claimant proved by a preponderance of the evidence that he sustained a compensable gradual onset-type injury to his cervical spine. Based upon my de novo review of the record, I would reverse the decision of the Administrative Law Judge. In my opinion, the claimant has failed to prove by a preponderance of the evidence that he sustained a gradual onset-type injury or a specific incident injury.
The claimant failed to relate to anyone at the respondent-employer that he sustained a work-related injury. He stated that he told his mother to report the injury. However, his mother testified that she never told anybody that it was work-related because neither she nor her son knew what was wrong with him. The claimant processed this claim through the respondent-employer's group health insurance, which was handled by Jean Gabert. The claimant also collected short-term disability benefits through a group plan.
Ms. Gabert testified at the hearing that she told the claimant if it was a work-related injury he needed to go through the plant nurse, Vicki Gill. The claimant admitted that he knew that Ms. Gabert handled all non-work-related claims and that Ms. Gill handled workers' compensation claims. The claimant previously had several workers' compensation injuries and these had all been handled through the plant nurse. The claimant stated that he had advised Ms. Gabert to pass the information along to Ms. Gill.
The claimant contends that there was no specific incident or sudden onset of injury. He alleges that this is a gradual onset injury to his neck.
Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) (Supp. 1999) defines a compensable injury as:
(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by a time and place of occurrence, if the injury is:
(a) caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as a compensable injury falling within this definition;
(b) a back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence.
The Arkansas Supreme Court, in the Hapney II case, has stated that:
In considering the above, we emphasize the obvious which was noted in the dissenting opinion rendered on June 8. Section 11-9-102(4)(A)(ii)(b) provides that a worker sustains a compensable gradual onset injury if the injury is a back injury; the statute makes no mention of "spine" or "neck". Also, as mentioned in that opinion, recognized medical definitions have very clearly defined the term "back" as being below the neck or from the neck to the pelvis. (Footnote omitted.)
Under the provisions of Ark. Code Ann. § 11-9-102 (4)(A)(ii)(a) (Supp. 1999), the claimant has to prove a rapid repetitive motion injury by the preponderance of the evidence by showing the following:
(1) that the injury arose out of and in the course of her employment; (2) that the injury caused internal or external physical harm to the body requiring medical services; (3) that the injury was caused by rapid repetitive motion; and (4) that the injury was the major cause of the disability or need for treatment. See, High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998).
In Malone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W.2d 644 (1996) the Court of Appeals devised a two-part standard to determine whether an injury is caused by rapid and repetitive motion: (1) the tasks must be repetitive, and (2) the repetitive motion must be rapid. In Malone, the Court stated:
"As a threshold issue, the tasks must be repetitive, or the rapidity element is not reached. Arguably, even repetitive tasks and rapid work, standing alone, to not satisfy the definition. The repetitive tasks must be completed rapidly." Id., 969 S.W.2d at 647-48.
In Malone, the Court held that a woman who worked as a custodian did not perform rapid repetitive motions, even though her job required numerous movements repeated many times in a day, because the movements were different and separated in time.
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) standing 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 give 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 File No. E713336), the Commission discussed several cases establishing guidelines for the cases involving rapid repetitive motion. The claimant in McDonald failed to satisfy the elements of proof for a gradual onset injury. Her physician 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 asking 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, may a little bit longer, but it 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 noted that the Court of Appeals had recently stated that 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 Rodman, 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 my opinion that the record fails to contain a preponderance of the evidence showing that the claimant's work activities were rapid and repetitive rapid. The claimant indicated that he was not performing his regular job duties when the problems with his shoulder began. He was boxing motors at a rate of approximately 45 motors per hour. He had only done that for 2 hours when the problem first began. It was not until the claimant was performing his regular job duties that he experienced his neck problems the following week. However, the record is devoid of any evidence whatsoever establishing the speed at which the claimant performed his normal job duties. Therefore, I find that the claimant has failed to establish that his job duties were rapid and repetitive, which is an essential requirement of proving a gradual onset-type injury.
In addition, the claimant, in my opinion, has also failed to prove that he sustained a specific incident injury. The claimant's injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Act 796 of 1993. We have held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Ark. Code Ann. § 11-9-102 as amended by Act 796. Jerry D. Reed v. ConAgra Frozen Foods, F.C. Opinion filed Feb. 2, 1995 ( E317744). When a claimant alleges that he sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, he must prove by a preponderance of the evidence that he sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of his employment and which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(5)(A)(i) and § 11-9-102(5)(E)(i) (Supp. 1999). He must also prove that the injury was caused by a specific incident and is identifiable by time and place of occurrence. See Ark. Code Ann. § 11-9-102(5)(A)(i). Finally, Ark. Code Ann. § 11-9-102(5)(D) requires that a claimant must establish a compensable injury "by medical evidence supported by `objective findings' as defined in § 11-9-102(16)." If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, he fails to establish the compensability of the claim, and compensation must be denied. Jerry D. Reed, supra.
The claimant testified that there was no specific accident or injury that occurred that caused his problem. The claimant testified that his arm merely started hurting at work and got progressively worse. The claimant admitted that he initially had pain in his shoulder and that his neck pain developed later. The claimant also conceded that he did not tell his treating physician that he had any specific incident of injury.
It is of note that the claimant failed to report to anyone at the respondent-employer that he sustained a work-related injury. The claimant processed his claim through his group medical benefits, although he was well familiar with the different reporting systems for the types of injuries, whether it be work-related or non-work-related. The evidence shows that the claimant has had several workers' compensation injuries and was able to process those claims without incident.
The claimant testified that he knew Ms. Gabert handled non-work-related medical and that he had dealt with her in the past. Nonetheless, the claimant reported the injury to Ms. Gabert. The claimant was also a member of the respondent-employer safety team at one time and was familiar with workers' compensation issues.
The testimony of Ms. Gabert also supports the finding that this was not a workers' compensation injury. Ms. Gabert related that she remembered visiting with the claimant about his injury and that she asked him and his mother if it was work-related. They both stated that they did not know how it happened. Ms. Gabert then advised the claimant and his mother that if it were work-related, the claimant needed to see the plant nurse, Ms. Gill. Despite this advice, the claimant processed his claim through his group medical coverage.
There is also evidence that the claimant had a pre-existing injury. The claimant testified in his deposition that he had no prior injuries to his neck. However, at the hearing, the claimant admitted to several prior instances of neck complaints and medical treatment. The claimant admitted that he had hurt his neck in a car accident. In addition, the medical records reflect that a physician wanted to perform a CAT scan on the claimant's cervical spine two years prior to this alleged injury. He also sought treatment from Dr. Meehan for cervical spine adjustments in July of 1998. This was the exact same type of adjustment that Dr. Meehan performed on the claimant in October of 1999.
I find that the claimant has failed to prove by a preponderance of the evidence that he sustained a gradual onset-type injury to his neck or a specific incident injury to his neck. Therefore, I must respectfully dissent from the majority opinion.
_______________________________ MIKE WILSON, Commissioner