Opinion
CLAIM NO. E804579
OPINION FILED JULY 8, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by PHILIP M. WILSON, Attorney at Law, Little Rock, Arkansas.
Respondent represented by PHILLIP P. CUFFMAN, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed
OPINION AND ORDER
[2] The respondent appeals a decision of the Administrative Law Judge filed on December 17, 1998, finding that claimant sustained a gradual onset cervical spine/neck injury which arose out of and during the course of her employment with respondent. Based upon our de novo review of the entire record, we find that claimant has failed to meet her burden of proof.At the hearing held on November 2, 1998, claimant contended that she sustained a gradual onset injury to her cervical spine while employed by respondent. Conversely, respondent controverted claimant's injury in its entirety. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with respondent specifically, we find that claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury to her cervical spine arising out of and during the course of her employment with respondent.
The evidence reflects that claimant was employed by respondent as a machine operator. After working approximately 65 hours one week, claimant awoke on a Sunday morning with tingling and itching sensations in both of her arms. Claimant reported her problems to her lead person and was advised to obtain medical care if her problems continued. On the following day, which was a Tuesday, claimant completed paperwork for a workers' compensation injury and was sent to the company doctor. By April 6, 1998, claimant was released to return to work. A medical record from The Family Practice Associates dated March 24, 1998, reveals that claimant had muscle spasms in her cervical spine and that she was diagnosed with a cervical sprain from overuse. Claimant was prescribed muscle relaxers and anti-inflammatory medication.
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, Full Commission Opinion filed Feb. 2, 1995 ( E317744). When a claimant alleges that she sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, she must prove by a preponderance of the evidence that she sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of her 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. 1997). She 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)."
It is undisputed that claimant did not sustain a specific incident identifiable by time and place of occurrence. However, this is not fatal to claimant's claim. Simply because the claimant did not sustain a specific incident identifiable by time and place of occurrence, her claim does not automatically fail. Act 796 recognizes certain specified exceptions to the general limitation of compensable injuries to those injuries which are caused by specific incident and which are identifiable by time and place of occurrence. These exceptions are set forth in Ark. Code Ann. § 11-9-102(5)(A)(ii) through § 11-9-102(5)(A)(i)(v) (Supp. 1997). Since claimant alleges an injury to her neck Ark. Code Ann. § 11-9-102(5)(A)(ii) is controlling. See Hapney v. Rheem Mfg. Co., ___ Ark. App. ___ S.W.2d ___ (1999). To satisfy the definitional requirements for injuries falling under Ark. Code Ann. § 11-9-102(5)(A)(ii), the employee must prove by a preponderance of the evidence that she sustained internal or external damage to the body as the result of an injury that arose out of and in the course of employment; and the employee still must establish the compensability of the claim with medical evidence, supported by objective findings. However, in addition to these requirements, if the injury falls under one of the exceptions enumerated under Ark. Code Ann. § 11-9-102(5)(A)(ii), the "resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment." Ark. Code Ann. § 11-9-102(5)(E)(ii) (Supp. 1997). (Emphasis added.) Finally, since this injury was to the neck, the claimant must prove that it was caused by rapid repetitive motion.
In applying the controlling law under Act 796 of 1993 to the evidence in this case, the Commission is to strictly construe the Act. Ark. Code Ann. § 11-9-704(C)(3).
The Court of Appeals 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 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.
Even more recently, the Arkansas Court of Appeals stated:
The Commission 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."
Patricia Patterson v. Frito-Lay, Inc.,___ Ark. App. ___, ___ S.W.2d ___ (April 14, 1999).
In applying these applications of the law to the present case, we cannot find that claimant has proven by a preponderance of the evidence that her cervical injury was caused by rapid repetitive motion. At most, the evidence reveals that claimant's employment involved repetitive movements of her upper extremities, and that she was required to perform these repetitive tasks of her upper extremities approximately ten hours a day for the six days preceding the onset of her symptoms. However, absent from the record is any evidence regarding the position of claimant's neck or cervical spine during the repetitive tasks performed by her upper extremities.
As for the two-prong test set forth in Anna Malone v. Texarkana Public Schools, we are not persuaded to find that claimant proved that she performed the repetitive motions of her upper extremities in a rapid manner. 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. In our opinion, 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.
Accordingly, based upon our de novo review of the entire record, we are not persuaded to find that claimant has proven on this record that she performed rapid repetitive motion involving her cervical spine which resulted in a compensable injury. While the record does establish that claimant performed repetitive movements involving her upper extremities in performing her job tasks, there is no evidence that the repetitive motions involved the positioning of her cervical spine. Furthermore, the evidence with regard to the rate of speed at which claimant performed her job duties is equivocal. Therefore, we are unable to find, based upon this record, that claimant has proven the compensability of a rapid repetitive injury to her cervical spine.
IT IS SO ORDERED.
DISSENTING OPINION
[17] I respectfully dissent from the majority opinion on a finding that claimant sustained a compensable gradual onset injury.Claimant has worked mostly as a machine operator for respondent employer. Her employment commenced in 1984. Claimant usually worked ten-hour days. Typically, she did not work Saturdays; however, claimant's supervisor was on vacation. Accordingly, her work week was extended. She testified that following a work week totaling six days and exceeding sixty-hours, she woke up Sunday with significant physical problems in both upper extremities. Claimant explained that her arms were numb and tingling, and she was unable to hold objects in her hands.
During the week before her symptoms developed, claimant was operating three "lap" machines concurrently. She explained that while one machine was running, she loaded another machine. This enabled claimant to process more parts. She stated that depending on the parts, it was possible to run four to five orders per hour. She usually ran twenty orders in a day. She stated that the size of the orders varied, some involved only one piece, while other orders totaled one hundred pieces. On average, it would take one hour to process one hundred pieces. Claimant stated that she ran about thirty parts at once. She operated the lap machines all day.
Claimant stated that her job involved constant movement of her hands; however, it was not the same motion every time because of the variance in part size. Claimant acknowledged that her work required deliberate motions; however, she stated that her movements were rapid as well. She explained that her production speed had increased with experience. Indeed, the record shows that claimant is a long-term employee. She stated that she was capable of processing many parts within a two-three hour period. According to claimant, some orders entailed 50-60 pieces that required lapping on both sides. However, once she determined the time needed on the initial load, it was possible to automatically set the machine for the balance of the loads. Claimant stated that speed was important so that the parts could be moved to the next operation. She stated that her job involved rapid and repetitive motion.
Claimant's supervisor, Jim Love, testified in behalf of respondents. He agreed with claimant's description of her job duties, and that repetitive motion was employed. However, Love testified that claimant's duties did not involve rapid motion.
The Administrative Law Judge questioned claimant with respect to her job duties, and the speed at which they were done. He stated that a video tape would have been useful here. In response to the Administrative Law Judge's comment, counsel for respondents stated no tape was offered due to propriety concerns with respect to the production process.
The majority opinion concludes that: "There is void from the record any persuasive evidence which would establish the speed at which claimant performed her job duties." First, it may be that the best evidence in this case would have been a video tape. However, respondents decided against introducing a tape for proprietary reasons. The irony is inescapable. More important, the detailed and credible testimony of claimant supports a finding that the rapid motion requirement has been satisfied. Claimant operated three machines concurrently. She stated that although she worked deliberately, she could, based on her degree of experience, work rapidly as well. Moreover, claimant offered evidence with respect to the volume of parts that she processed. It is also noteworthy that prior to receiving medical treatment, claimant worked a grueling schedule.
Likewise, I find that both the objective findings and the major cause requirements have been satisfied. Claimant testified that before March of 1998, she never experienced similar physical problems. Following a grueling work week that totaled about sixty hours, claimant developed physical problems. She stated that she was very tired after working a six-day week, and did no housework over the weekend. The chart notes of Drs. Cooper and Taggart support a finding that claimant's cervical strain is the major cause of her need for treatment.
Finally, I would award temporary total disability benefits.
Based on the foregoing, I respectfully dissent.
___________________________________ PAT WEST HUMPHREY, Commissioner