Opinion
CLAIM NOS. E704404 E706061
OPINION FILED MAY 15, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by FRANK NEWELL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
[2] The claimant appeals from a decision of the Administrative Law Judge filed October 31, 1997 finding that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury on or about April 4, 1997. Based upon our de novo review of the record, we affirm the decision of the Administrative Law Judge.The claimant has been employed by the respondent employer since September of 1992. For the past four years the claimant has performed the job of packer. The claimant is required to package cooking ware into a box on an assembly line. On February 12, 1996, the claimant suffered a compensable injury to his right wrist in the form of a ganglion cyst. The claimant received medical treatment for the removal of the cyst but missed no time from work as a result.
On April 4, 1997, the claimant informed his supervisor that he was unable to perform the work assigned to him because of swelling and pain in his right wrist. The claimant sought treatment from Dr. Harold Betton for treatment of his right wrist pain. Dr. Betton ordered electro diagnostic studies which indicated mild carpal tunnel entrapment of the right median nerve. Dr. Betton referred the claimant to Dr. Michael Moore. Dr. Moore subsequently performed carpal tunnel surgery on the claimant's right wrist. The claimant returned to work for the respondent in September of 1997. The claimant contends that he suffered an injury in the form of carpal tunnel syndrome on or about April 4, 1997. The claimant contends that this injury is the result of either a cumulative trauma, an aggravation or a recurrence. The respondent contends that the claimant did not sustain a compensable injury in the form of carpal tunnel syndrome.
The burden of proof rests upon the claimant to prove the compensability of his claim. Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is indeed compensable. O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (Repl. 1996). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704; Wade v. Mr. C Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987).
The claimant contends that he sustained a recurrence of his February 12, 1996 injury on or about April 4, 1997. We find that the claimant has failed to meet his burden of proof. Where the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for every natural consequence that flows from that injury. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). If, after the period of initial of disability has subsided, the injury flares up without having an intervening cause and creates a second disability, it is mere recurrence and the employer remains liable.McDonald Equipment Co. v. Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989). A recurrence is not a new injury but simply another period of incapacitation resulting from a previous injury. See Atkins, supra. This principle has been consistently applied where a second complication is found to be a natural and probable result of the first injury. It is only where it is found that the second episode has resulted from an independent intervening cause that the liability will be affected. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1993).
There is no evidence presented whatsoever linking claimant's carpal tunnel syndrome with his ganglion cyst injury of February 12, 1996. Further, there is no medical evidence drawing a connection between the claimant's work activities and his right wrist condition. Dr. Michael Moore, the claimant's treating physician, wrote a report on April 16, 1997 stating that he could not definitively state that the claimant's work activities caused his right wrist problems. Although he did say that the activities such as those the claimant did at work could precipitate or aggravate the claimant's symptoms, Dr. Moore failed to relate these symptoms to the claimant's work activities.
Further, the claimant's testimony fails to establish that he continued having problems with his wrist after the cyst was removed. The claimant testified that he had been to see the respondent employer's nurse, Brenda Fleming, complaining of pain in his right wrist several times after he had his ganglion cyst removed in February of 1996. However, the testimony of Ms. Fleming directly contradicts the claimant's testimony. Ms. Fleming testified:
Q. Do you recall seeing him once or twice a month and him talking to you about anything?
A. After surgery or before surgery?
Q. After his May 1996 surgery.
A. No, no, not about his wrist.
Q. Is it possible that he came to your office to pick up an aspirin, or something, where you didn't see him?
A. That's always possible.
Q. Okay. Why would you recall it, if you would, if there's a reason you would, if he came and sat down and spoke to you about his wrist?
A. If he came to my office after the surgery to speak about his wrist, or get Tylenol, or whatever, for his wrist, then that would have been documented.
Q. Have you reviewed your files?
A. Yes, I have reviewed the files.
Q. Is there — did you find any documentation there?
A. Not after the surgery for the wrist, no.
Q. Did you find — is there any documentation there that he talked to you about anything?
A. Yes, he had fallen and received a small cut above his eye and I did bandage that, or cleaned it, and then he came in one day — through communication with the supervisors I have little pieces of paper with carbon copies, and I needed to see him back the next day, but it could have been about that. I don't know.
Q. What about the wrist bands?
A. I believe the wrist bands was between sometime 2/12/96 until the time that he had the surgery. That's when he received the wrist bands.
Q. Did you give him wrist bands after the surgery?
A. No, I do not remember doing that at all. No documentation.
Consequently, based upon Dr. Moore's inability to link the claimant's carpal tunnel to his work activities, and the testimony of Ms. Fleming, we find that the claimant has failed to prove that he sustained a recurrence of his February 12, 1996 injury on or about April 4, 1997 in the form of carpal tunnel syndrome.
The claimant also contended he sustained an aggravation of his February 12, 1996 injury. An aggravation is a new injury resulting from an independent incident. Farmland Ins. Co. v. Dubois, 54 Ark. App. 141, 923 S.W.2d 883 (1996); See Pinkston v. General Tire Rubber Co., 30 Ark. App. 46, 782 S.W.2d 375 (1990). The independent incident must be shown to be work-related to establish compensability. Farmland Ins. Co., 54 Ark. App. at 145, 923 S.W.2d at 886. In addition, under Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1997), it must be shown that the new injury was caused either by a specific incident identifiable by time and place of occurrence. Again, Dr. Moore failed to link the claimant's work activities to his carpal tunnel problems. Further, the claimant cannot show an independent incident. Accordingly, the claimant has failed to meet his burden of proof.
Simply because the claimant did not sustain a specific incident identifiable by time and place of occurrence, his claim does not automatically fail. Act 796 does recognize 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.
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) (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., 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 my 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.
In Richard E. Throckmorton v. J J Metals, Full Workers' Compensation Commission, Aug. 14, 1995 (Claim No. E405318), this Commission interpreted the term "rapid" to refer to that which is marked by a notably high rate of motion, activity, succession, or occurrence, requiring notably little time, and without delay or hesitation. This Commission interpreted the term "repetitive" to refer to the exact same thing again and again. Consequently, this Commission interpreted the statutory requirement of "rapid repetitive motion" in Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) (Supp. 1997) to require proof that the claimant's employment duties involved, at least in part, a notably high rate of activity involving the exact, or almost exactly, same movement again and again over an extended period of time. Id. However, on numerous occasions, the Court of Appeals has held that the Commission'sThrockmorton statutory interpretation was too restrictive, and the Court has provided the Commission guidance and precedent in several published opinions. See generally Baysinger v. Air Systems, Inc., 55 Ark. App. 174, 934 S.W.2d 230 (1996), Lay v. United Parcel Service, 58 Ark. App. 35, 944 S.W.2d 867 (1997);Kildow v. Baldwin Piano Organ review granted, No. 97-828 (Ark. Sept. 11, 1997) 58 Ark. App. 194, 948 S.W.2d 100 (1997); Rudick v. Unifirst Corp., 59 Ark. App. ___, ___ S.W.2d ___ (January 28, 1998); High Capacity Products v. Moore, 60 Ark. App. ___, ___ S.W.2d (February 25, 1998).
In Baysinger, the Court addressed the repetitive element of "rapid repetitive motion," and found the Commission's statutory analysis too restrictive, stating:
The Commission erred in requiring appellant to prove that his carpal tunnel syndrome was the result of the exact, or almost exactly, the same movement again and again. It appears from the findings of the Commission . . . that although the evidence indicates that different portions of claimant's job duties may involve rapid repetitive motion, he is precluded from recovery because "there is no indication that the different steps involve the same movement again and again for prolonged periods of time." We feel that the Commission's interpretation of the statute is too restrictive and precludes multiple tasks — such as the hammering and grinding motions performed by claimant — from being considered together to satisfy the requirements of the statute.
Baysinger, 55 Ark. App. At 176, 934 S.W.2d ___.
The Court of Appeals addressed the rapidity element in Lay and Kildow and the Court did not adopt the Commission'sThrockmorton test for rapidity (i.e. "a notably high rate of activity"). See also Rudick, supra.
In Lay, one of the claimant's alternative arguments was that his injury was compensable as a "rapid repetitive motion" injury. The claimant asserted that his motions were rapid because he made nearly eighty deliveries per day in a ten to eleven hour shift, an average of one delivery every eight minutes. He did not claim that driving his delivery truck or actually making the deliveries constituted a part of his rapid repetitive tasks. Instead he claimed that loading and unloading packages, and lifting and replacing an electronic clipboard, constituted rapid activity.
The Court of Appeals affirmed the Commission's denial of benefits in Lay. In reaching its decision, the Court stated:
Although we do not provide a comprehensive definition of what constitutes "rapid repetitive motion," we conclude that the motions as described by Lay, 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).
Lay, 58 Ark. App. at 41, 944 S.W.2d at 870.
In Kildow, the Court observed that in its ordinary usage, the term "rapid" means "swift" or "quick". Kildow, 58 Ark. App. at 200, 948 S.W.2d at 103 (citing Concise Oxford Dictionary 1137 (9th ed. 1995)). The Commission found that the claimant failed to prove that her work activities were "rapid." However, the Court determined that the Commission's decision was not supported by substantial evidence, concluding:
The only evidence regarding appellant's job duties came from her own testimony before the administrative law judge. No company representatives disputed her account of her daily tasks . . . [Appellant testified that her job entailed assembling electrical components on boards by gripping and twisting short wires on small pieces for 8 to 10 hours a day, 5 to 6 days a week on an assembly line. Further, when appellant returned to work under her doctor's light-duty orders, she was restricted to placing no more than one board per minute onto the line. It is clear to us that reasonable minds could not argue that appellant's testimony does not establish that her job did involve swift or quick motion. While testimony on how many boards appellant assembled in a given day might better prove rapidity, it is a matter of common sense that reasonable minds would expect work on an assembly line to move at a swift or quick pace. . . . Here, when considered together, reasonable minds could not agree that appellant's assembly line work of gripping, twisting, and squeezing wires to secure small components to boards all day long does not qualify as "rapid repetitive" in the ordinary and generally accepted meaning of the words.
Kildow, 58 Ark. App. at 199-201, 948 S.W.2d ___.
In High Capacity Products v. Moore, ___ Ark. App. ___, ___ S.W.2d ___ (February 25, 1998), the Court affirmed the decision of the Full Commission finding that the claimant proved by a preponderance of the evidence that her job duties producing electrical meter boxes required rapid repetitive motion. In reaching this decision the Court summarized the following relevant evidence:
Moore, a thirty-eight-year-old woman, worked for appellant for approximately five years. She used an air gun to assemble blocks with a quota goal of one thousand units per day. She was required to assemble each block by using an air-powered appliance to attach two nuts to each block. She would hold the parts of the unit with her left hand and work the air gun with her right hand. She averaged using the air gun to attach one nut every fifteen seconds. The majority of her time was consumed in this quota assembly. Her job required three maneuvers to be repeated in succession all day: assembling the separate parts, using the air-compressed equipment to attach the parts together with nuts, and throwing the units into a box.
In reaching its decision, the Court commented that "we believe that this is the most compelling case demonstrating rapid repetitive motion presented to this Court to date." Id. At ___, ___ S.W.2d ___.
In our opinion, the claimant has failed to prove that his job entailed rapid and repetitive motion. His job may indeed be repetitive, but under the requirements of the statute he must prove that his job duties require both rapid and repetitive motion. We find that the claimant has failed to meet his burden of proof. The testimony of Rebecca Lyn Riser, the claimant's supervisor, supports such a finding. Ms. Riser testified that the personnel in her department would stop the lines from 45 to 50 times a day with no explanation. Ms. Riser testified:
Q. Do the lines ever stop?
A. My department has a severe habit of my lines staying stopped. I've had to go through my immediate supervisor, which is Chuck Meyer, as far as to personnel director, to have her meet with my department to tell them to quit stopping the lines. They are stopping up to forty-five to fifty times a day with no explanation.
Q. Who can stop the line?
A. Anybody on the line. There's an emergency cord and they pull it when they want to turn around and talk to each other when they want to go to the bathroom, whenever they just decide they want to stop the line and have a break. It averages, probably, now — the average line stoppage has cut way back. We're probably stopping thirty times a day now instead of the fifty that it was when I got back there.
Q. When it stops how long does it stop?
A. It stops usually until myself or my set-up man head to the end of the line to start the line back up or hope somebody says there's a reason that it's stopped, which is maybe 10% of the time. Someone will say there's a reason.
Q. Do you know who stopped the line?
A. Ninety percent of the time, no, sir.
She also stated in her testimony that her department failed to make quota over 50 percent of the time. If the claimant actually worked at the rate that he testified that the line worked, he would pack approximately 6.75 boxes a minute. However, the videotape introduced into evidence shows a much slower pace than that. The claimant testified that the videotape depicted a much slower line and it was not a true depiction of how fast the line moved. However, a videotape introduced by the claimant indicated that the line in that videotape was slow as well.
In our opinion, the evidence simply does not support a finding that the claimant's job duties entailed rapid and repetitive motion. The claimant has failed to show that his job duties required "swift" or "quick" motion as rapid was defined by the Court of Appeals in Kildow. Therefore, based upon our de novo review of the record, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury in the form of carpal tunnel syndrome. Therefore, we affirm the decision of the Administrative Law Judge.
IT IS SO ORDERED.
DISSENTING OPINION
[30] I must respectfully dissent from the majority opinion finding that claimant has failed to prove that he sustained a compensable injury.The parties stipulated that claimant originally sustained a compensable injury to his right wrist on February 12, 1996, in the form of a ganglion cyst. Claimant underwent surgery for this condition on May 10, 1996, but testified that he missed no time from work as a result. Though he initially performed "a little lighter type work" after the surgery, claimant explained at the hearing that he continued to experience problems with his right wrist which intensified upon his return to regular duty.
Ultimately, on or about April 4, 1997, claimant requested additional medical care for his wrist, which respondent employer refused to provide. As a result, claimant sought care on his own with Dr. Harold Betton, who ordered electrodiagnostic studies for April 11, 1997. These indicated a "lesion involving the right median nerve at the level of the wrist as is commonly seen with carpal tunnel entrapment." Thereafter, Dr. Betton referred claimant to orthopedic hand specialist Dr. Michael Moore, who performed carpal tunnel release surgery in early July. With regard to the etiology of claimant's CTS, Dr. Moore stated that:
I cannot definitively state that the work he performs at Regal Ware is a primary cause of carpal tunnel syndrome; however, if Mr. Crudup does perform repetitive work, it is likely this activity could precipitate, or aggravate, his symptoms.
Claimant's employment duties essentially consisted of packing cookware into boxes in preparation for retail sale. As the boxes moved along an assembly line, claimant performed a series of "very quick hand movements" for his entire shift, some of which required considerable manipulation:
They have diecuts. You have to put diecuts around the pans and take the pans off the skid, put them into the box and put covers in the box. And you have to move very quickly in order to keep up with the line . . . The cardboard is hard and you have to fold them, you know . . . Yes, bending the cardboard.
Claimant went on to explain that respondent employer utilizes four separate packing lines, and that Lines 1 and 2 tend to run the quickest, Line 3 less so, and Line 4 is the slowest as it runs the heaviest "cast-iron" products. Claimant stated that for the most part, he worked on Lines 1 and 2. Also, claimant stated that he handled three or four items for each box, including the "diecuts," and generally dealt with around 3,000 boxes during an eight-hour shift.
Claimant's "team leader," Ms. Rebecca Riser, testified that there were actually five lines, some of which were known as "drawn" lines which ran at a top rate of 330 boxes per hour. Others were referred to as "cast iron" lines, whose top rate was 254 boxes per hour. Ms. Riser also stated that the lines operated on ten hour shifts. It does not appear from the record that the lines necessarily ran at maximum capacity all the time, and Ms. Riser explained that there had been significant problems with employees stopping the lines for various reasons throughout the day.
With that much said regarding the nature and speed of claimant's work, it is my opinion that rapid repetitive motion is not even the appropriate starting point for an analysis of this claim. Instead, I am persuaded that claimant's eventual right-side CTS was simply the natural and probable result of his previous compensable injury and is thus a compensable recurrence thereof. Claimant developed an admittedly work-related ganglion cyst less than a year before the onset of his CTS, and shortly after its removal he resumed work that was at the very least hand-intensive. In addition, claimant's credible testimony reveals that his right wrist symptoms never fully resolved between the time of his first injury and the culmination of his CTS in April, 1997. In fact, claimant acknowledged that his ongoing difficulties were similar to his original ganglion complaints in both location and character. Finally, claimant denied participation in any activities, other than his work, which might have played a role in the onset of his CTS. I would thus find that claimant's eventual right-side CTS is a compensable recurrence of his previous injury, and has been established by medical evidence supported by "objective findings," e.g., the electrodiagnostic studies ordered by Dr. Betton.
As set out above, I must respectfully dissent from the majority opinion.
PAT WEST HUMPHREY, Commissioner