Opinion
CLAIM NO. F007256
OPINION FILED AUGUST 16, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JIM R. BURTON, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by the HONORABLE RICHARD LUSBY, Attorney at Law, Jonesboro, Arkansas.
Decision of the Administrative Law Judge: Affirmed
OPINION AND ORDER
Respondents appeal an Administrative Law Judge's decision filed February 12, 2001, wherein claimant was awarded benefits for a gradual onset neck injury he sustained while working for respondent-employer. Upon our de novo review of the record, the Full Commission finds that claimant proved by a preponderance of the evidence his entitlement to these benefits. Accordingly, the Administrative Law Judge's decision is affirmed.
Claimant contends that he suffered from a specific incident injury or that, alternatively, his injury is a gradual onset. Respondent contends that claimant does not suffer from a specific incident injury and that claimant cannot prove rapid repetitive motion was the major cause of any gradual onset injury.
The Administrative Law Judge found, and we agree, that claimant proved by a preponderance of the credible evidence that he sustained a gradual onset cervical injury which arose out of and during the course of his employment with respondent-employer as a result of rapid repetitive work activities.
HISTORY
Claimant worked for respondent-employer for more than three years. Claimant described his duties as a zerk operator as placing grease ports or zerks into an almunite. Normally, these duties are performed with an automatic machine, but claimant had to perform the task manually with an arbor press when the machine malfunctioned. Claimant testified that he would place a zerk into the almunite which had a magnet that held the piece so that he could then manually press the zerk into assembly. Operation of the press required claimant to use both hands to pull it down onto the almunite. This could be done in a standing or sitting position. Although this process is difficult to visualize, the evidence consists of a video tape that pictures how the process actually works.
Claimant was required to assemble 3,200 parts daily with the automatic machine, which meant that he had to put a piece into the almunite and pop a zerk into it 3,200 times per day. The demand for parts did not decrease while the automatic machine was being repaired, and claimant testified that he tried to keep up with the high volume demand. Claimant routinely worked eight-to ten-hour days five to six days each week. He received a 30-minute lunch and two ten-minute breaks.
Claimant stated that he had been using the manual arbor press for three weeks when his right shoulder and arm began to hurt. He stated that on April 3, 2000, his shoulder and arm hurt all day. He reported this to John P.M. Smith, his supervisor, who accompanied him to the company nurse.
Dr. Michael Lack, the company physician, initially treated claimant. After his worker's compensation claim was denied, claimant began treating with his family physician, Dr. Spades. Dr. Spades ran various diagnostic tests, including an MRI, and found a herniated cervical disc at C4-5.
Dr. Spades referred claimant to Dr. Tonymon who performed surgery on claimant on July 24, 2000. Claimant was released to full duty on September 27, 2000. Claimant now runs a fork spreader for respondent-employer and states that he has no further medical problems.
ADJUDICATION
To prove a compensable injury as a result of a specific incident which is identifiable by time and place of occurrence, claimant must establish: (1) proof by a preponderance of the evidence of an injury arising out of and in the course of employment; (2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury; and (4) proof by a preponderance of the evidence that the injury was caused by a specific incident and identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1999). If claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the claim, compensation must be denied. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).
Claimant stated that he had worked on the arbor press for three weeks before he began hurting. He further stated that he began experiencing symptoms on April 3, 2000, but that he did not relate the pain to one specific incident or task. Based on these facts, we find that claimant has failed to prove that he sustained a specific incident injury.
Alternatively, claimant argues that he suffers from a gradual onset injury. The Arkansas Supreme court has held that requirements to show a gradual onset injury back injuries do not apply to the neck or cervical spine. Hapney v. Rheem Manufacturing Co., 342 Ark. 11, 26 S.W.3d 777 (2000); See Ark. Code Ann. § 11-9-102(4)(A)(i).
To prove a rapid repetitive motion injury to the neck or cervical spine 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. 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 inMalone 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.
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. 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. 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.
In the present case, claimant has a classic example of rapid repetitive motion. His assembly-type work made it necessary for him to place pieces together rapidly and repetitively. Claimant testified that while the automatic machine was operational, he had a quota of approximately 3,200 parts daily. Although he obviously could not output as many parts manually, claimant was still using the same rapid and repetitive motions to complete his job manually while the automatic machine was being repaired. With the manual arbor press, claimant was actually having to work harder and faster to meet the demands of his employment duties. We find that claimant's motions were rapid and repetitive in this instance. Therefore, we affirm the Administrative Law Judge's decision.
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 dissenting opinion's assertion that the claimant failed to prove by a preponderance of the evidence that his cervical injury was caused by rapid repetitive motion, and that the claimant failed to prove that his injury was the major cause of his disability or need for medical treatment.
For my part, I note that the video depicted the operation of the machine both standing and seated, as well as using one or both arms. As the Administrative Law Judge noted, the operator shown in the video turned out 15 parts in approximately three minutes, equivalent to 300 parts per hour or approximately 2,400 parts per shift. I agree with the Administrative Law Judge that the operator in the video appeared to be elderly, cautious, and slow. I agree that the activity depicted in the video was extremely repetitive, and I note that the claimant has indicated that he operated at a faster pace than the rate reflected in the video.
The dissenting opinion asserts without legal comparison that the claimant's work activities did not involve rapid motion. For my part, I point out that the frequency of the repetitive operations in this case (no less than 300 parts per hour) 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 operation in the present case also meets the statutory requirements, since the claimant's repetitive operation in this case exceeds the frequency of the repetitive motions at issue in Boyd.
The dissenting opinion also asserts without explanation that degenerative changes, not the claimant's work-related injury, is the major cause of the claimant's disability or need for medical treatment. While I agree that diagnostic testing indicated osteophyte formation, joint changes at multiple levels, and degenerative changes, I point out that the claimant had no pre-existing symptomatic injury. I point out that it is the claimant's work-related disc herniations and nerve root compressions, for which the claimant has undergone medical treatment and sustained temporary disability. Under these circumstances, the evidence simply does not support the dissenting opinion's suggestion that it is instead the claimant's osteophyte, joint changes, or degenerative changes that are in fact the major cause of the claimant's temporary disability or need for medical treatment.
For all of the foregoing reasons, I concur in the principal opinion's award of benefits and cannot agree with the dissenting opinion's arguments as to why the Administrative Law Judge's award of benefits should be reversed.
_______________________________ ELDON F. COFFMAN, Chairman
I respectfully dissent from the majority opinion finding that the claimant sustained a compensable injury in the form of a gradual onset injury to his neck. Based upon my de novo review of the record, I would reverse the decision of the Administrative Law Judge.
It is my opinion that the record does not contain a preponderance of the evidence showing that the claimant's activities were repetitive and rapid. A claimant must prove by a preponderance of the evidence the following factors to find an injury compensable under the "rapid repetitive motion" theory:
(1) the injury arose out of and in the course of her employment; (2) the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death; (3) the injury was caused by rapid repetitive motion; (4) the injury was the major cause of the disability or need for treatment; and (5) the injury must be established by medical evidence supported by objective findings.
Malone v. Texarkana Public Schs., 333 Ark. 343, 969 S.W.2d 644 (1998).
The standard two-prong test for determining whether work activities involve rapid repetitive motion is: (1) the tasks must be repetitive, and (2) the repetitive motion must be rapid.Malone, supra. As a threshold issue, the tasks must be repetitive, or the rapidity element is not reached.
In my opinion, the claimant has failed to prove by a preponderance of the evidence that his job duties entailed rapid repetitive motion. The only evidence that we have is a videotape, as well as the claimant's description of the procedure. A review of the videotape indicates that the operator is being "extremely slow and cautious", as noted by the Administrative Law Judge in his Opinion, as well. The claimant stated that he did the press at a faster pace. However, his testimony indicates otherwise:
Q. In the pace that they were going on the manual arbor press, would that be about the pace you would be working?
A. You might go a little faster because, you know, he wasn't, you know, he didn't do it, you know he don't do it all the time. He just did it, you know, just for a few seconds, but, you know, about the same.
This testimony indicates that the claimant did the job duties at approximately the same speed as the individual on the videotape. In addition, there was no evidence that the claimant was required to meet a certain production level for the manual press. In my opinion, this does not rise to the level of proof to indicate that the claimant's job duties required rapid repetitive motion.
The claimant has also failed to prove that his injury is the major cause of his disability or need for treatment. There is no medical testimony offered that shows that the claimant's problems were the major cause of his disability or need for treatment. The CT scan performed on May 23, 2000, showed osteophyte formations and joint changes at multiple levels of the claimant's cervical spine, as well as degenerative changes. These degenerative changes are noted at multiple levels, including the two levels where the claimant sustained the herniated discs.
Therefore, after I consider all the evidence, I find that the claimant has failed to prove by a preponderance of the evidence that he sustained a gradual onset injury. Accordingly, I respectfully dissent from the majority opinion.
_______________________________ MIKE WILSON, Commissioner