Opinion
CLAIM NO. F006495
OPINION FILED OCTOBER 25, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE BRUCE D. ANIBLE, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
Claimant appeals a February 15, 2001 opinion of the Administrative Law Judge finding that she failed to prove by a preponderance of the evidence that she sustained a compensable gradual onset injury.
Claimant has the burden of proving by a preponderance of the evidence that she is entitled to compensation. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers' Compensation Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). In order to receive benefits for a gradual onset or cumulative trauma injury, claimant must prove by a preponderance of the evidence (1) that she sustained an injury arising out of and in the course of her employment; (2) that the injury caused external and internal physical harm to the body; (3) that the injury is supported by objective medical findings; (4) that the injury was caused by rapid repetitive motion; and (5) that the injury was the major cause of any disability or need for treatment. Stevenson v. Frolick Footwear, 70 Ark. App. 383, 20 S.W.3d 413 (2000). On appeal, the issues are whether claimant sustained an injury arising out of, or causally related to, her employment; whether the injury was caused by rapid repetitive motion; and whether claimant is entitled to benefits for temporary total disability. After our de novo review of the entire record, we find that claimant has met her burden of proof and, accordingly, affirm the opinion of the Administrative Law Judge.
After a three-month absence from work with this employer, claimant began working again in June, 1993 as a typist. Her job duties involved primarily typing an average of five hours a day out of the eight-hour schedule. Other duties included shuffling and filing papers and some extensive handwriting for taking phone messages from multiple phone lines, for checking equipment in and out, and for documenting the scheduling of various vehicles. Claimant testified, however, that the typing was the primary source of her symptoms in her upper extremities. Claimant credibly testified that she typed "pretty fast" and estimated that her speed was about 90 words per minute. Based on the above evidence, we find that claimant has proven by a preponderance of the evidence that her job duties involved rapid repetitive motion.
After performing these job duties for approximately six and a half years, claimant was experiencing severe pain in her hands and wrist, as well as tingling and numbness in both hands. Claimant informed the employer of her condition and was directed to Dr. Sam Taggart for treatment. Claimant saw Dr. Taggart on December 13, 1999. Dr. Taggart's impression was "repetitive motion syndrome" that "appears to be related to excessive typing." Dr. Taggart prescribed physical therapy and restricted claimant from job duties involving typing. Due to continuing symptomatology, Dr. Taggart referred claimant to Dr. Edward R. Webber, a hand specialist. From his clinical examination, Dr. Webber diagnosed bilateral carpal tunnel syndrome and scheduled electrodiagnostic studies "to confirm diagnosis." The electrodiagnostic studies were interpreted as essentially normal but with borderline carpal tunnel syndrome on "comparative basis." Thereafter, Dr. Webber's diagnosis became "flexor carpi radialis tenosynovitis." Dr. Webber released claimant to her local physician, Dr. Taggart. It appears in early June, 2000, Dr. Taggart took claimant off work because she could not do the job without pain and numbness. Dr. Taggart indicated that claimant would be off work for two to four months. In a report dated August 7, 2000, Dr. Taggart indicated that claimant could return to full duties wearing wrist splints on August 14, 2000.
In a report dated October 23, 2000, Dr. Taggart expressed his opinion that claimant's difficulties are causally related to her employment:
Since my letter of May 22, 2000, very little has changed on Ms. Duncan with the exception of the fact that when we sent her back to work she re-developed the symptomatology that she'd had previously.
In reference to your question about objective findings; it (sic) hard for me to question or make judgments on what Dr. Webber and his associates have said. However, it seems to me that from a clinical judgment standpoint, there is very little doubt that what Wanda has had was a repetitive motion syndrome involving both upper extremities with some evidence of tendinitis and tenosynovitis over her hands. On the ENG she showed borderline carpal tunnel syndrome on the right wrist.
In answer to your question about her work activities; it seems to me that almost all of Mrs. Duncan's symptomatic complaints are based on her work activities with superimposed stress in the work site from her perspective. She and I have discussed this case at length on many occasions over the last year or so, and I can say within a reasonable degree of medical certainty, that her symptomatology are directly related to her work. Since we were able to fulfill coaxed postulates by taking her off work, her symptoms resolved and then we put her back on work and her symptoms came back, my feeling is that if she goes back to this kind of work she will have a recurrence of the symptomatology.
It could be argued that there has been no definitive diagnosis of claimant's condition. An exact or definite diagnosis is not necessary in every case. American Can Co. v. McConnell, 266 Ark. 741, 587 S.W.2d 583 (1979); Watson v. Conway Memorial Hospital, 268 Ark. 680, 595 S.W.2d 946 (Ark.App. 1980). None of the physicians who examined claimant has expressed an opinion that she does not have legitimate physical problems in her upper extremities. Whether her diagnosis is actually carpal tunnel syndrome or some other condition, claimant has proven that her job duties involved rapid repetitive motion.
Additionally, the above noted opinion by Dr. Taggart satisfies the requirement of a causal connection between her condition and the employment. Further, there is no other nonwork-related explanation for claimant's difficulties. Finally, claimant's upper extremity problems are the only cause of her need for treatment and disability, and therefore the major cause requirement has likewise been met.
In order to be entitled to benefits for temporary total disability resulting from a scheduled injury, claimant must prove by a preponderance of the evidence (1) that she remains within her healing period; and (2) that she has not returned to work. Wheeler Const. Co. v. Armstrong, 73 Ark. App. 146, ___ S.W.3d ___ (2001).
The evidence indicates that in August 2001, claimant was given prescriptions for bilateral wrist splints and a second round of physical therapy. (Incidentally, this treatment was controverted by respondent.) Thus, we find that claimant remained within her healing period subsequent to August 27, 2000. In a report dated May 26, 2000, Dr. Taggart took claimant off work for two to four months. Claimant testified that she actually took off on or about June 3 through August 13, 2000. On August 8, 2000, Dr. Taggart allowed claimant to return to work on August 14, 2000 at full duty while wearing wrist splints. Claimant testified that she performed her old duties and her symptoms returned, requiring her to take off work again. Claimant testified that she has been on complete rest since August 27, 2000, and has not engaged in any repetitive motion activities. Based on the above evidence, we find that claimant was still within her healing period and had not returned to work from June 3 to August 13, 2000, and from August 27, 2000 to an uncertain future date. Therefore, claimant has proven by a preponderance of the evidence that she is entitled to benefits for temporary total disability during these periods of time.
For the foregoing reasons, we reverse the opinion of the Administrative Law Judge finding that claimant did not sustain a compensable injury. Further, we find that claimant has proven by a preponderance of the evidence that she is entitled to benefits for temporary total disability from June 3 to August 13, 2000, and from August 27, 2000 to a date yet to be determined. Further, respondent is liable for all reasonable and necessary medical treatment received by claimant. Claimant's attorney is entitled to the maximum statutory attorney's fee based on the benefits controverted and awarded herein, one-half to be paid by claimant and one-half to be paid by respondent. 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
Chairman Coffman concurs.
CONCURRING OPINION
I concur in the principal opinion's findings and award of benefits. I write separately to address the dissent's suggestion that typing 90 words per minute for five hours of an eight-hour shift does not require rapid repetitive motion.
The Arkansas Court of Appeals at one time stated that repetitive movements repeated once every fifteen seconds (i.e., four repetitions per minute) was "the most compelling case demonstrating rapid repetitive motion presented to this court to date." High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998). The Arkansas Supreme Court has held that repetitive neck movements performed once every twenty seconds (i.e., three repetitions per minute) also meet the rapidity requirement.Hapney v. Rheem Manufacturing Co., 342 Ark. 11, 26 S.W.3d 777 (2000). Moreover, the Court of Appeals has held a series of repetitive motions performed 115 to 120 times per day separated by periods of 1.5 minutes constitute rapid repetitive motion within the meaning of Act 796 of 1993. Boyd v. Dana Corp., 62 Ark. App. 78, 966 S.W.2d 946 (1998).
By comparison, in order to type 90 words per minute, the claimant in the present case would be required to perform literally hundreds of repetitive motions per minute for five hours per day. By my elementary calculations, the claimant performed repetitive movements at a rate approximately one hundred times greater than the rate of the "rapid" movements at issue in Moore and Hapney, and at a rate probably one thousand times greater than the rate of the "rapid" movements at issue inBoyd. Furthermore, as discussed in the principal opinion, the preponderance of the credible evidence indicates that the claimant normally performed these highly rapid and repetitive duties the majority of her eight-hour work day, and the preponderance of the credible evidence indicates that this typing caused the claimant's injury.Compare Matthews v. Jefferson Hosp. Assn., 340 Ark. 341 Ark. 5, 14 S.W.3d 482 (2000).
The respondents also seem to argue in the alternative that the Arkansas Workers' Compensation Law denies benefits where, as here, the claimant performed the typing which caused her injury only five hours, on average, out of an eight-hour work day. Ark. Code Ann. § 11-9-102(4)(A) (Supp. 2001) provides in relevant part:
(4)(A) "Compensable injury" means:
(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(a) Caused by rapid repetitive motion.
I note that the provisions of Act 796 of 1993 are to be strictly construed. Ark. Code Ann. § 11-9-704(c)(3). In addition, if "the scope of the workers' compensation statutes need to be liberalized, broadened, or narrowed, those things shall be addressed by the General Assembly and should not be done by administrative law judges, the Workers' Compensation Commission, or the Courts." Ark. Code Ann. § 11-9-1001.
In the present case, strictly construing the laws as we are mandated to do, I fail to see any requirement in the plain language of the law indicating that the rapid repetitive motion at work causing injury must be performed continuously over the entire work shift in order to prove a compensable injury under Ark. Code Ann. § 11-9-102(4)(A)(ii)(a). If the legislature had intended such a requirement, I note that it would have been a simple matter to have explicitly written such a requirement into the law.
In short, I believe that there can be no serious dispute that the claimant's typing duties at 90 words per minute required "rapid repetitive motion" as that phrase has been interpreted in Moore, Hapney,Boyd, and similar cases, and there is no serious dispute that the claimant's typing an average of five hours per day caused the injury at issue. Consequently, absent further guidance from the courts or the legislature, I find that the claimant has satisfied the requirements at issue on appeal to establish a compensable injury under Ark. Code Ann. § 11-9-102(4)(A)(ii)(a).
_______________________________ ELDON F. COFFMAN, Chairman
Commissioner Wilson dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion finding that the claimant sustained a gradual onset injury. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof.
The 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 Le v. Superior Industries, Full Commission Opinion filed February 12, 1999 (WCC No. E708248), the Commission determined that the claimant's position required rapid and repetitive motion sufficient to satisfy the Act where the claimant handled approximately 30 tire rims per hour for 50 or more hours per week. She processed approximately 300 wheels per shift using essentially the same four steps: (1) lifting a wheel rim onto a table, (2) sanding the wheel with a circular motion, (3) deburring the wheel with a pneumatic grinder, (4) lifting the wheel onto a cart or bin. When the plant ran chrome wheels, the claimant was also required to use a four-pound stamper and a five pound shop hammer to mark each wheel. The tasks were clearly repetitive. The Commission applied the analysis of the Court of Appeals in Boyd v. Dana Corp., 62 Ark. App. 78, 966 S.W.2d 946 (1998), to determine that the tasks were performed rapidly under the Act:
In Boyd, the Court of Appeals compared the duties of a worker who repeated a four-step metal fabricating process approximately 100 to 125 times per shift to the duties of a delivery man whose repetitive motions were separated by intervals of several minutes in the case of Lay v. United Parcel Service, 58 Ark. App. 35, 944 S.W.2d 847 (1997). In comparing these two situations, the Court of Appeals in Boyd found that the metal fabricating process involving 100 to 125 parts per hour was sufficiently rapid and repetitive to satisfy the requirements of Act 796 of 1993. In this regard, the Court stated:
[I]n the instant case, the evidence is that the appellant's series of repetitive motions were performed 115 to 120 times per day separated by periods of only 1.5 minutes, and we do not think that this brief interval rises to a period of "several minutes or more" as stated in Lay. Boyd, Supra, at 83.
In McDonald v. Tyson Foods, Inc., Full Commission Filed June 3, 1999 (WCC No. E713336), the Commission discussed several cases establishing guidelines for cases involving rapid repetitive motion:
First, in Baysinger v. Air Systems, Inc., 55 Ark. App. 174, 934 S.W.3d 230[ 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, 948 S.W.2d 100 (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, 333 Ark. 348[ 333 Ark. 343], 969 S.W.2d 644 (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.
The claimant in McDonald failed to satisfy the elements of proof for a gradual onset injury. Her physicians opined that the claimant's work was conducive to or was sufficient to account for the claimant's clinical findings. However, this was insufficient to a finding that the claimant had satisfied the rapid repetitive motion element of proof necessary to prove the compensability of her claim. "Claimant must present more evidence than medical opinions linking her condition to her work." The claimant had failed to satisfy her burden of proof where there was no evidence with regard to the rate of speed within which the claimant performed the tasks of lifting the belts on the machine which she contended was the repetitive task responsible for her injury. On cross-examination, the claimant was asked how long it would take for her to lift the wire belts for bracing, to which she responded:
It depends on what kind of mood you are working in. If you are in a hurry, it's going to take anywhere from ten minutes, maybe a little longer, but if you are just taking your time — I can't tell you how long it takes, I really can't. Because everybody is different and I haven't been doing that in so long and all.
In Rodman v. ACX Technologies, Full Commission Opinion Filed July 8, 1999 (WCC No. E804579), the Commission discussed the above cases and went on to note that the Court of Appeals had recently stated it "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,'" in Patterson v. Frito-Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999). In the Rodman claim, the claimant failed to prove a gradual onset cervical injury where there was no evidence as to the position of her neck or cervical spine during the repetitive tasks she performed with her upper extremities. The Commission also found that the claimant had failed to prove that the repetitive motions of her upper extremities were performed rapidly under the two-prong test set forth inMalone v. Texarkana Public Schools, because the 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." The Commission stated that "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." It is our opinion that the record does not contain a preponderance of the evidence showing that the claimant's activities were repetitive and rapid.
In my opinion, the claimant has failed to show that her job duties were rapid and repetitive. Since the claimant has not been diagnosed with carpal tunnel syndrome, she is required under Act 796 to prove that her job duties entailed rapid repetitive motion. The evidence shows that the claimant typed approximately five hours a day, off and on, during an eight-hour shift. She spent the remaining three hours during her eight-hour shift doing other activities. In my opinion, typing on and off during an eight-hour period does not rise to the level of the preponderance of the evidence that is necessary for the claimant to prove that her job duties were indeed rapid and repetitive. Accordingly, I find that the claimant's job duties were not rapid and repetitive. Therefore, I must respectfully dissent from the majority opinion.
______________________________ MIKE WILSON, Commissioner