Opinion
CLAIM NO. E602055
OPINION FILED AUGUST 14, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by EUGENE SCHIEFFLER, Attorney at Law, West Helena, Arkansas.
Respondents represented by PATRICK HOLLINGSWORTH, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed
OPINION AND ORDER
[2] Claimant appeals a decision of the Administrative Law Judge filed on February 5, 1998, finding that claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury to his knees that was the major cause of claimant's disability or need for treatment. Based upon our de novo review of the entire record, we agree that claimant has failed to meet his burden of proof. Therefore, we find that the decision of Administrative Law Judge is supported by a preponderance of the evidence and should be affirmed.At the hearing held on October 23, 1997, claimant contended that he sustained a compensable injury to his knees during the latter part of 1995 which rendered claimant totally disabled. Conversely, respondent contended that claimant's employment did not require rapid repetitive motion of his knees and that the alleged compensable injury is not the major cause of claimant's disability or need for treatment. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with respondent.
The record reveals that claimant has been an employee of respondent since 1985. Claimant contends that during a shut down of the plant during the summer of 1995, he was required to work additional hours in order to get the plant back up and running. Claimant's job duty for respondent consists of working in the fabricating and maintenance departments.
Prior to commencing his employment with respondent, claimant developed problems with his knees. X-rays performed of claimant's knees in January of 1984 noted extensive degenerative joint disease with calcification and osteophytes in claimant's right knee. Claimant's first medial menisectomy was performed on claimant's right knee in April of 1984. Since undergoing this first surgery, claimant has continued to complain of pain and locking in his knee. The medical records are replete with histories of knee pain while walking or climbing stairs. By June of 1991, claimant's complaints of pain included his left knee.
Claimant presented the testimony of several co-workers who described the work performed by claimant during the shutdown in the summer of 1995. The testimony from the co-workers is consistent on the fact that claimant, as well as other workers, were required to work long hours performing strenuous work during the shut-down. Each employee testified that the work was performed at a fast pace so that the plant could re-open on schedule.
It was claimant's contention that it was not the actual work duties which resulted in compensable injuries to his knees, but rather the walking and stair climbing required in order to perform his job duties. Claimant's helper described the work on the stairs as follows:
That would be constantly during the shut-down going up and down those stairs, putting equipment in, taking measurements, things like that.
When specifically asked what was repetitive about his work, claimant stated:
The walking to and from the shop to the plant and climbing up and down the stairs. And when you stand on your feet eight hours, that's repetitive work. That's a lot of standing.
During cross examination, the following transpired with regard to claimant's allegations:
Q. Okay. And principally what you're claiming as rapid, repetitive motion is your walking and your stair climbing; correct?
A. Yes, sir.
Q. And do you remember we talked about that in your deposition? And I think we concluded that, on a typical day, stair climbing might consume somewhere between an hour and two hours out of eight to twelve hours?
A. That could vary.
Q. Okay. Sometimes less, sometimes more?
A. Sometimes. Most of the time it could be more. I mean I'm not going to tell you an exact time because I can't.
Q. Okay. And then after you'd climb up the stairs, there'd be some time before you climbed back down; correct?
A. Yes, sir.
Q. Okay. You set your own pace in your work; didn't you?
A. No, sir.
Q. All right. Who set your pace?
A. The foreman.
Q. Okay. How did the foreman set your pace?
A. He'd tell you to get it done as fast as possible.
Q. Okay. But you moved at a speed that you could physically accommodate in order to do that work; correct?
A. As a loyal employee, I moved as fast as I could possibly move to get there and get back.
Q. Sure, but also taking time to make sure it was done correctly?
A. Yes, sir.
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, F.C. 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) (Supp. 1997). 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) (Supp. 1997). 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) (Supp. 1997). See also Jean Carter v. Aid Temporary Services, Inc., F.C. 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 three recent Court of Appeals Opinions, the Court has given the Commission some guidance in analyzing rapid repetitive claims. 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 ___ (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. ___, ___ S.W.2d ___ (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.
In the present claim, even though claimant and his witnesses testified that claimant worked quickly at a pace set by the foreman, the evidence fails to support a finding by a preponderance of the evidence that claimant's walking or stair climbing was performed in a rapid repetitive fashion. Both walking and stair climbing may be considered repetitive tasks. However, the record is void of any evidence proving that these repetitive tasks were performed rapidly. While we can glean from the claimant's testimony that claimant performed his regular job duties in a rapid fashion, we are unable to determine from the record that the walking or stair climbing was performed rapidly. As explained below in the major cause analysis, it is inconceivable that a person with claimant's extensive history of degenerative disease in his knees could actually perform the tasks of walking or stair climbing in a swift or quick fashion, especially given claimant's extensive and well documented history of pain when walking or climbing stairs.
Even assuming, arguendo, that claimant walked or climbed stairs in a rapid repetitive manner, we find that claimant has failed to prove by a preponderance of the evidence that his alleged compensable knee injury was the major cause of claimant's disability or need for treatment. The medical evidence establishes a longstanding diagnosis of degenerative joint disease in claimant's knees. Claimant underwent his first medial menisectomy in 1984. After undergoing this surgery, claimant continued to complain of pain in his right knee with walking or stair climbing. There is no medical evidence in the record showing the claimant's job duties during the summer of 1995 aggravated claimant's pre-existing disease. At best, the medical records merely confirm claimant's longstanding diagnosis of degenerative joint disease. Degenerative arthritis was diagnosed by at least 1989, four years after claimant underwent his first surgical procedure in his right knee. Since that time, the medical records confirm that claimant has continued to suffer from right knee pain which led to arthroscopic surgery in March of 1989. The records confirmed degenerative disease in both knees by 1991. Despite the surgical procedures claimant has undergone, the diagnosis of degenerative disease or joint arthritis has persisted. It was this degenerative condition which first led to medical restrictions placed upon claimant at work. These restrictions were in place long before claimant's alleged compensable rapid repetitive motion injury in the summer of 1995. As we review the medical records in this case, it is overwhelmingly clear that the major cause of claimant's current disability or need for treatment is claimant's preexisting underlying degenerative joint disease in his knees. Accordingly, we find that claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury that is the major cause of his disability or need for treatment. Therefore, we find that the decision of the Administrative Law Judge is hereby affirmed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.