Opinion
CLAIM NO. E604907
OPINION FILED SEPTEMBER 26, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by PAUL J. TEUFEL, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by A. GENE WILLIAMS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
Respondent appeals from a decision of the Administrative Law Judge filed October 30, 1996 finding that claimant has proven by a preponderance of the evidence that he sustained compensable carpal tunnel syndrome. Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof.
Claimant has worked for respondent for approximately fourteen years as of May, 1995. For the past ten years, claimant has performed the duties of a machine specialist. Claimant's job consists of loading, starting, and monitoring four machines which produce gears out of blank metal. When claimant first begins work each day he loads two blank metal disks onto a gear hob machine. Claimant then starts the gear hob machine which runs automatically for several minutes. As the gear hob machine is running, claimant removes a gear from one side of the lathe and places that gear into a machine which stamps a number onto the gear. Claimant then moves a second gear from the opposite side of the lathe onto the just vacated side of the lathe. A foot pedal is pushed which closes the chuck and holds the gears in place on the lathe. Claimant next pushes a button which causes the lathe to run automatically for several minutes. As the lathe is operating, claimant starts the stamper machine. After the part has been stamped, the part is removed and then placed on the hob machine. The final step in the sequence is to remove the stamped part from the hob machine and place it onto a wire brush machine and starting that machine. Once the part has gone through the wire brush machine, claimant has approximately a minute and a half of no activity prior to starting the process all over again. It is claimant's testimony that when he first began noticing symptoms in his right arm in May of 1995 he produced approximately 115 to 120 finished parts per day.
It is claimant's testimony that he first noticed problems such as numbness in his right arm around May of 1995. Claimant presented to his family physician, Dr. Mark Brown, who at first diagnosed the claimant with tendinitis. When claimant's symptoms failed to improve, Dr. Brown ordered nerve conduction studies in November of 1995. These studies revealed "moderate right carpal tunnel syndrome . . . and mild left carpal tunnel syndrome."
The claimant's injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Ark. Code Ann. § 11-9-102 as amended by 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 Act 796. Jerry D. Reed v. ConAgra Frozen Foods, FC Opinion filed Feb. 2, 1995 ( E317744). The claimant does not contend that the injury is identifiable by time and place of occurrence. Indeed, the claimant contends that the injury is a rapid repetition motion injury. Consequently, in order to prevail on a rapid, repetitive motion claim, a claimant must prove by a preponderance of the evidence that he sustained an injury causing internal or external harm to the body which arose out of and in the course of their employment and which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(5)(A)(ii) and § 11-9-102(5)(E)(ii) (Repl. 1996). A claimant must also prove by a preponderance of the evidence that the injury was caused by rapid repetitive motion, and that the injury was the major cause of the disability or need for treatment. See Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) and § 11-9-102(5)(E)(ii) (Repl. 1996). 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)." Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996). See also Jean Carter v. Aid Temporary Services, Inc., FC Opinion filed May 12, 1995 ( E404813).
If an employee fails to establish by a preponderance of the credible evidence any of these requirements for establishing the compensability of the alleged injury, he fails to establish the compensability of the claim and the claim must be denied. Reed v. ConAgra, supra.
In our opinion, a review of the evidence indicates that claimant failed to prove by a preponderance of the credible evidence that he sustained a compensable rapid repetitive motion injury.
The claimant failed to prove by a preponderance of the evidence that his carpal tunnel syndrome was caused by rapid repetitive motion. Although the Act does not establish any guidelines with regard to the extent of motion necessary to satisfy the requirement of rapid motion or with regard to the nature of the motion necessary to satisfy the requirement of repetitive motion, in his dissenting opinion in Lilly Kildow v. Baldwin Piano and Organ, 58 Ark. App. 194, ___ S.W.2d ___ (July 2, 1997), Judge Wendell Griffen articulated "some meaningful standard that can be used to assess the proof" in a rapid repetitive motion case. Judge Griffen stated:
If one accepts the traditional rule of statutory construction that words must be given their ordinary meaning to affect intent of the legislature, and that we should follow common sense in that process, we may properly arrive at a workable definition for rapid repetitive motion. Webster's Third New International Dictionary contains the following definitions:
`rapid' — Marked by a notably high rate of motion, activity, succession, or occurrence.
`repetitive' (from repetition) — The fact of occurring, appearing, or being repeated again.
`motion' — An act or instance of moving the body or any of its members.
Thus, rapid repetitive motion should be defined for purposes of the statute before us as referring to injuries caused by fast or notably high rate of recurring motion, process or action.
The Court of Appeals in Lilly Kildow found the claimant to have proven by a preponderance of the evidence that her carpal tunnel syndrome was caused by rapid repetitive motion with the only evidence of speed being the fact that she worked on an assembly line. In reaching its decision, the majority used the ordinary meaning of rapid to be "swift or quick". However, the majority did not provide any guidance for the definition of the entire phrase "rapid repetitive motion" other than to reiterate its displeasure with how we previously defined and applied the term "repetitive." Nonetheless, we are still compelled to find that a claimant must present some form of sufficient evidence with regard to both the rapid and repetitive requirements of the Act.
The Court of Appeals addressed our definition of rapid repetitive motion. See Baysinger v. Air Systems Inc., 55 Ark. App. 174, ___ S.W.2d ___, (1996). In that opinion, the Court did not disagree with our definition of rapid repetitive movement as such. Rather, the Court disagreed with our factual assessment inBaysinger wherein we found claimant's multiple job tasks did not meet the definition of "repetitive." The Court of Appeals eventually stated in Kildow, supra, that the definition of rapid repetitive motion as used by this commission in Throckmorton v. J. J. Metals, Full Commission opinion August 14, 1996 ( E4005318) was erroneous as a matter of law. In light of these decisions from the Court, we are now required to re-evaluate how we view multiple job tasks within the "repetitive" definition. See also,Donnie Mullins v. Hytrol Conveyor, FC Opinion March 13, 1997, ( E600667).
Using claimant's figures that he prepared 115 to 125 gears per 8-hour day, the evidence reveals that claimant prepared one gear every 4.78 minutes with a 1.5 minute interval before beginning a new gear. In Michael Lay v. United Parcel Services, 58 Ark. App. 35, ___ S.W.2d ___ (1997), the Court of Appeals concluded "that motions . . . separated by periods of several minutes or more, do not constitute rapid repetitive motion under the meaning of § 11-9-102(5)(A)(ii)(a)." When we analyze this case with the Court of Appeals' holding in Michael Lay v. UPS, we find that claimant has failed to prove that his movements and motion to prepare a gear meet the requirement of rapid repetitive motion. In our opinion, one gear prepared every 4.78 minutes is not evidence of swift or quick motion, nor is it marked by a notably high rate of motion. As noted by the Court of Appeals, movement intensive work does not rise to the level of rapid when the movements are separated by periods of delay or hesitation. Lay v. UPS, supra.
Furthermore, we find that claimant failed to prove by a preponderance of the evidence that the alleged compensable injury is the major cause of the disability or need for treatment. Under Act 796 of 1993, "major cause means more than fifty percent (50%) of the cause." A finding of major cause must be established by a preponderance of the evidence. Although claimant's treating physician, Dr. Mark Brown provided a report related to causal connection, we cannot find that the major cause requirement has been met. In his May 6, 1996, report Dr. Brown noted:
Mr. Boyd has been a patient of mine for several years. He has been coming here since November of 1995 for a complaint of some numbness in the right hand. He is noted this is worse after he has been working on his machine at work. He puts blank gears into a machine and he has to load and unload a machine up to 120 times per day. He has to supinate and extend his forearm frequently while performing this task. I feel that his symptoms could certainly be related to his job and that combined with the fact he has nerve conduction velocity studies documenting carpal tunnel syndrome on the right and the fact that he has been employed for Dana for some years, has a great deal of seniority, and has not been an individual to abuse Workman's Comp benefits, leads me to believe this is a work-related problem.
The major cause requirement is not satisfied if the compensable injury is less than fifty percent (50%) of the cause of the disability and need for treatment, or if symptoms are merely "related" to the job.
The evidence reveals claimant suffers from adult-onset diabetes. According to claimant's testimony as of the time of the hearing (October 25, 1996) claimant had been diagnosed with diabetes for four years. Although symptoms consistent with carpal tunnel syndrome are quite commonly said to be caused by repetitive trauma, these symptoms and diagnostic findings are also associated with diabetes. See, the Merck Manual, Fifteenth Edition (1988). Even if we were to conclude that claimant's employment duties involved rapid repetitive motion, a finding which we do not make, we find that the greater weight of the evidence does not establish that the alleged compensable injury is more than fifty percent (50%) of the disability or need for treatment. The evidence reveals that claimant has performed his job duty with respondent for over ten years without any problems. It was not until after claimant was diagnosed with diabetes that he began to experience any significant problems with his arms. Moreover, the problems claimant experiences are just as consistent with a diabetes-related neuropathy as they are with a trauma-caused carpal tunnel syndrome. See, Kenneth Cox v. Cooper Tire and Rubber Co., FC Opinion October 14, 1995 ( E408120). The association of carpal tunnel syndrome to a disease such as diabetes is more firmly established in medical literature than occupation as a causative factor. See, Workers' Comp Update 1997, Laurel Orthopedic Evaluation, P.A., Kenneth C. Peacock, M.D. There is no explanation in the record other than the adult-onset diabetes to explain why claimant developed carpal tunnel syndrome after performing the same job for ten years. If claimant's job were the major cause of carpal tunnel syndrome, one would expect claimant would have developed symptoms much sooner. Consequently, without any evidence to address the causative role of claimant's diabetes, we cannot find that claimant has proven that his alleged compensable injury is more than fifty percent (50%) of the disability or need for treatment, as opposed to claimant's underlying diabetic condition.
Accordingly, based upon our de novo review of the entire record, and for those reasons discussed herein, we find that claimant has failed to prove by a preponderance of the evidence that his alleged compensable injury is the major cause of his disability or need for treatment. Therefore, we find that claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury. Consequently, we find that the decision of the Administrative Law Judge should be reversed.
IT IS SO ORDERED.
CONCURRING OPINION
I concur in the determination that the claimant failed to prove that his job duties involved "rapid repetitive motion" and in the determination that the claimant failed to prove that any work related injury he may have sustained was the major cause of his carpal tunnel syndrome.
I write separately only to express my view as to why I feel the facts of this case are distinguishable from the facts considered in Kildow v. Baldwin Piano and Organ, 58 Ark. App. 194, ___ S.W.2d ___ (1997). In Kildow, the Court of Appeals reversed a decision of the Commission and found that the claimant proved by a preponderance of the evidence that her job duties involved "rapid repetitive motion" as required by Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) (Repl. 1996). In determining that the claimant proved that her job involved "rapid" motion, the Court inKildow placed significant weight on the fact that the claimant worked on an assembly line attaching small wires and electrical components to an electronics board. Even though the record contained little or no evidence as to how rapidly the claimant worked, the Court appeared to suggest that the very fact that the claimant worked on an assembly line performing this type of work represents competent evidence that the claimant's job did in fact involve rapid motion.
In the present case, the claimant did not work on an assembly line. Instead, the claimant worked as a machine specialist. The claimant was in charge of several pieces of equipment with a combined production output of 115-125 units (gears) per 8-hour shift. The claimant's testimony indicates that the equipment was essentially automated, and his primary duty was to load and unload the gears being produced by the machines. Thus, the position of machine specialist does not appear to be an "assembly line" position (consisting of hand intensive activities), where as here the machines produced the finished product. Consequently, I perceive the nature of the claimant's work duties (machine specialist) in the present case as being significantly distinguishable from assembly line work considered by the Court of Appeals in reversing the Full Commission in Kildow. Moreover, considering the claimant's production rate (one gear every 4.78 minutes), I consider the rate of repetition performed by the claimant in the present case much more similar to the facts in Lay v. United Parcel Service, 58 Ark. App. 35, ___ S.W.2d ___ (1997), decided shortly prior to Kildow.
ELDON F. COFFMAN, Chairman
DISSENTING OPINION
I must respectfully dissent from the principal opinion finding that claimant has failed to prove that his work activities consisted of rapid, repetitive motion or that his work-related injury was the major cause of his resulting disability or need for treatment.
I would first of all point out that I maintain the utmost respect for Judge Wendell Griffen of the Arkansas Court of Appeals. However, I am puzzled by the principal opinion's lengthy quotation from Judge Griffen's dissenting opinion in Kildow v. Baldwin Piano Organ, 58 Ark. App. 194, ___ S.W.2d ___ (1997):
. . . in his dissenting opinion in Lilly Kildow v. Baldwin Piano and Organ, 58 Ark. App. 194, ___ S.W.2d ___ (July 2, 1997) Judge Wendell Griffen articulated "some meaningful standard that can be used to assess the proof" in a rapid repetitive motion case. (The principal opinion then sets out Judge Griffen's proposal that rapid repetitive motion be defined as "referring to injuries caused by fast or notably high rate of recurring motion, process, or action.")
The principal opinion goes on to state that:
The Court of Appeals in Lilly Kildow found the claimant to have proven by a preponderance on the evidence that her carpal tunnel syndrome was caused by rapid repetitive motion with the only evidence of speed being the fact that she worked on an assembly line. In reaching its decision, the majority used the ordinary meaning of rapid to be "swift or quick." However, the majority did not provide any guidance for the definition of the entire phrase "rapid repetitive motion" other than to reiterate its displeasure with how we previously defined and applied the term "repetitive."
I would venture to say that, because it originates from a dissenting opinion, Judge Griffen's proposed definition of "rapid repetitive motion" should not govern the instant claim. In apparent recognition of this, the principal opinion ultimately relies on the Court of Appeals' decision in Lay v. United Parcel Service, 58 Ark. App. 35, ___ S.W.2d ___ (1997) to reach its conclusion that claimant did not engage in rapid repetitive motion. Accordingly, I am left to wonder what the relevance of Judge Griffen's dissent might be to the principal opinion. If it is offered as a mere narration of the growing saga of the phrase "rapid repetitive motion," I have no real objection. However, if the intimation is indeed that Judge Griffen's dissent warrants some form of precedential status or consideration, I cannot agree.
For one, as well-articulated as it is, Judge Griffen's standard is still the product of a dissenting opinion — meaning that the Court of Appeals as a whole did not accept it. Second, there is a reason that the Court of Appeals in Kildow "did not provide any guidance for the definition of the entire phrase," just as there is a reason that the Court has found cause to "reiterate its displeasure with how we previously defined and applied the term `repetitive.'" I would point out the following footnote to the Kildow majority decision:
At least one commentator has noted the anomalous inclusion of "rapid" in Arkansas's statute, and suggested that, "Possibly, the term rapid does not have any real significance in the 1993 Act. The addition of the term may be the result of unartful drafting arising out of the common knowledge that many repetitive motion cases involve rapid repetitive motion." John D. Copeland, The New Workers' Compensation Act; Did the Pendulum Swing Too Far? 47 Ark. L. Rev. 1, 15 (1994).
We are mindful that assigning meaning to the term "rapid repetitive" may inappropriately exclude valid work-related carpal tunnel syndrome claims in certain fields of work that are characterized not by the speed of the work, but by abnormally strenuous or meticulous activity with the hands. We welcome from the legislature their promise in Act 796 of 1993 stating in part "In the future if such things as . . . the extent to which any physical condition, injury or disease should be excluded from or added to coverage by the law . . . it shall be addressed by the General Assembly . . . and should not be done by the Courts." (Emphasis added.)
It should be clear from the foregoing passage that the Court of Appeals is itself reluctant to define the term "rapid repetitive motion" and, for the time being at least, has declined to do so beyond (perhaps) offering "swift or quick" as a suitable definition of "rapid." Until such time as the Court of Appeals holds differently, or the Arkansas Supreme Court addresses the question (and it may very well do so), I believe it would be prudent to avoid even the appearance of venturing to do what the Court of Appeals has essentially deferred to the General Assembly. Because the principal opinion's reliance on Judge Griffen's dissent in Kildow is capable of giving that very appearance, and bears no clear relevance or importance to the principal opinion's decision, I am unable to discern the value of its inclusion therein.
Further, I object to the principal opinion's statement that, in light of the Court of Appeals' decisions in Baysinger v. Air Systems, 55 Ark. App. 174, ___ S.W.2d ___ (1996) and Kildow, supra, "we are now required to re-evaluate how we view multiple job tasks within the `repetitive' definition." I would submit thatBaysinger and Kildow completely dismantled the "repetitive definition," and left nothing of it within which to conduct a "re-evaluation" of any sort.
As for the merits of this claim, I am persuaded that claimant's employment duties do amount to rapid repetitive motion.
Claimant works as a machine specialist responsible for setting up and running a series of machines which cut circular pieces of metal into gears. His portion of the production process involves several different steps, after which he has approximately one-and-one-half minutes before repeating the process. Claimant described his work as "fairly rapid," and indicated that there was no variation in the manner in which he performed his duties. He went on to explain the process as follows:
Okay. The first thing when I come in of (sic) the morning I load the gear hobs, vertically. There's two gears that goes on the hob. And they weigh, like I said, on the average of twelve pounds a piece. And after I start the gear hob, I turn around, and the turning lathe loads horizontally. And I'll take the part out of one side of the lathe, put it on a machine that stamps a number on the part, and I'll reach into the other side of the lathe. And when I do I have to extend my hand in this manner and take the gear out . . . Yes. And I take it out of this side of the machine and put it into the other side and chuck it into the other side of the machine. And I reach into the box where the blank gears are and load the other side of the turning lathe. And I get it loaded and get it running, and I stamp my gear on the stamper, and put it over by the hob. And then I'll go down and run the wire brush, you know, that brushes each side of the gear. And like I say, there's two gears . . . And when I get both parts wire brushed, then by that time I got back down to the turning lathe and it's finished. And I'll do the step involved with the turning lathe, getting it going again. And at that point I'll have probably a minute-and-a-half, you know, before the turning lathe cycles through. And then I'll get it loaded again, and by that time the gear hob is ready to be loaded, and the process starts all over again.
Claimant also pointed out that his movements are constant until he reaches the 1.5 minute interval between each series of steps and that, at the time of his injury, he was making some one-hundred-fifteen to one-hundred-twenty-five gears a day. In my opinion, performing the process described above up to one-hundred-twenty-five times a day clearly requires motion that is rapid and repetitive. I am not dissuaded from this conclusion by the fact that claimant enjoys a 1.5 minute respite between units, since this hardly amount to the eight-minute (average) intervals that defeated compensability in Lay, supra.
Finally, I cannot agree that claimant's asserted compensable injury is not the major cause of his resulting disability or need for treatment. True, claimant does suffer from diabetes. However, this hardly means that "there is no explanation in the record other than the adult-onset diabetes to explain why claimant developed carpal tunnel syndrome after performing the same job for ten years." Quite the contrary, there is considerable evidence in the record relating to hand-intensive employment duties to which Dr. Mark Brown (claimant's treating physician) has expressly attributed claimant's carpal tunnel syndrome.
Nor can I accept the proposition that "if claimant's job were the major cause of carpal tunnel syndrome, one would expect claimant would have developed symptoms much sooner." Because it is a gradual injury, I suspect that carpal tunnel syndrome can take any number of years to develop. Given that different individuals possess different constitutions and varying levels of resistance to injury or disease, I do not believe that ten years is an unreasonable amount of time for a gradual injury to develop. Accordingly, in light of Dr. Brown's opinion and claimant's description of hand-intensive employment duties, I am persuaded that his asserted compensable injury is the major cause of his resulting disability or need for treatment.
Based on the foregoing, I must respectfully dissent from the principal opinion.
PAT WEST HUMPHREY, Commissioner