Opinion
CLAIM NO. F005378
OPINION FILED JANUARY 9, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by SCOTT HUNTER, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on May 4, 2001. In that opinion and order, the administrative law judge determined that claimant sustained a compensable shoulder injury. Claimant was awarded all reasonable and necessary medical expenses associated with the treatment of her shoulder injury. Based on our de novo review of the entire record, we affirm in its entirety the administrative law judge's opinion.
Claimant has worked on an assembly line for respondents for a period exceeding 14 years. Prior to reporting a work-related injury on March 7, 2000, she worked on the 44 Model Carrier line. She stated that this entailed the assembly of larger cast iron axle parts than other lines operated by respondents. Claimant's duties also included cleaning her work station at the end of each shift, which lasted eight hours. She testified that she worked 40 hours each week.
Claimant testified that a carrier weighs 45 pounds. She stated that she worked with two machines. As a carrier reached her, she flipped it over into a trough, installed bearing caps, stamped the part, and turned it over again. Then, she lifted the part in order to get it into a machine. While the part was still being processed in the first machine, claimant returned to the line and prepared another carrier. She testified that when the first machine stopped running, the part was removed and placed in the second machine for reprocessing. Upon completion of this step, the part is removed from the machine and placed on the assembly line. Claimant testified that she was expected to process between 225-250 carriers per shift. Claimant stated that the job was continuous, and she pushed herself to avoid falling behind. In this regard, claimant testified that as quickly as she could get one machine ready for processing, another machine required unloading. As a result, she always had tasks to complete while the machines were cycling.
Respondents offered the testimony of claimant's supervisor, Mr. Jerry Mitchell, Area Manager. His testimony pertained primarily to claimant's job duties. Since the production process is difficult to conceptualize, Mr. Mitchell's testimony is added here.
Mr. Mitchell described a carrier as a large component that connects the axles. The carriers are moved throughout the plant on a conveyor belt. Mr. Mitchell testified that the conveyors are equipped with rollers. The carriers reached claimant's work station in an upright position. Mr. Mitchell stated that the carrier is flipped over by the employee into a cradle, using their dominant hand. Next, the bearing caps are applied. Mr. Mitchell testified that the bearing caps have bolt holes, and four bolts are used. After twisting the screws in place, an airgun is used to tighten the bolts. Mr. Mitchell testified that the airguns are overhead; therefore, the employee uses their dominant hand in order to reach the airgun. He stated that the part is stamped four times, using a tapping motion. Then, the carrier is flipped over again so that it is in an upright position. Using both hands, the carrier is loaded into a machine. Mr. Mitchell testified that a twisting motion is used in order to reach the machine. To activate the machine, the employee pushes a button.
Mr. Mitchell indicated that upon completion of the initial processing cycle, the carrier is removed and placed into another machine. The second machine, which is located directly behind the first, cuts drift bores. The completion of this step represents a full cycle. Then, the carrier is placed on the conveyor belt and sent to the next department.
In addition to processing carriers, Mr. Mitchell stated that claimant had housekeeping duties. He indicated that all departments were required to perform these duties. With respect to the carrier line, Mr. Mitchell explained that dropped bolts and bearing caps must be retrieved from the floor. Chips which have fallen must be picked up as well. Further, Mr. Mitchell stated that claimant was responsible for sweeping and mopping her work area.
On cross-examination, Mr. Mitchell agreed with claimant's testimony that 250 carriers are completed each shift. He stated that each carrier is lifted a minimum of three times during processing.
With respect to claimant's complaints of shoulder pain, Mr. Mitchell acknowledged that she reported this. However, he stated that claimant did not report a specific incident injury. Mr. Mitchell testified that he encouraged her to document these occurrences in the first-aid log book.
Mr. Mitchell testified that claimant is a hard worker. He stated that if an employee is ahead, she may take a break and smoke at her work station. Mr. Mitchell testified that claimant is a smoker. He agreed that claimant would have to be working at a fast space in order to take smoking breaks.
Upon questioning from the administrative law judge, Mr. Mitchell stated that the processing of each carrier requires 15 separate movements. Moreover, most employees use their dominant hand to perform these movements.
With respect to the development of her symptoms, claimant stated that the shoulder pain began six months after being transferred to the carrier line. She testified that the discomfort gradually increased. Claimant testified that she documented it on a bulletin board in respondent employer's sick room on March 7, 2000. She stated that she also spoke with Ms. Lisa Johnson, Plant Nurse. Ms. Johnson advised claimant to take Ibuprofen.
On March 31, 2000, claimant consulted Dr. Danny E. Grubbs, her family physician. She testified that she finally sought medical attention because of the level of pain she was experiencing. Claimant stated that Dr. Grubbs requested that she rise and demonstrate the motions required to perform her job duties. On April 6, 2000, he recommended an MRI of claimant's right shoulder.
Claimant testified that before the test was done, she had a second conversation with Ms. Johnson. She stated that she called to determine whether to proceed with the test. Claimant testified that Ms. Johnson advised her to have the MRI. Also, Ms. Johnson informed claimant that respondents would accept the claim if Dr. Grubbs opined that her condition work related. Ultimately, Dr. Grubbs recommended a job reassignment, which respondents accommodated. Thereafter, claimant's complaints dissipated. Claimant offered testimony regarding her medical history, stating that she sought medical treatment from Dr. Grubbs for shoulder pain in 1994. She explained that she developed pain after lifting a shaft at work. Claimant testified that the problem seemed to be muscle-related.
On cross-examination, claimant testified that she received benefits from respondent employer's short term disability policy in 2000. She stated that benefits were paid during the time period Dr. Grubbs excused her from work for the MRI. She also stated that except for the deductible, the group health carrier paid all medical expenses associated with the treatment of her shoulder injury.
Claimant acknowledged that in a statement to the insurance adjuster, she denied prior treatment to her right shoulder. She stated that she forgot about the medical care she received.
Upon inquiry by the administrative law judge, claimant testified that she reported her shoulder pain to Mr. Jerry Mitchell, Supervisor, on several occasions before seeking medical attention from Dr. Grubbs. Claimant stated that when she showed Dr. Grubbs the movements required to process carriers, he concluded that her medical condition was work related.
When questioned further, claimant informed the administrative law judge that Ms. Johnson initially refused to file a claim. According to claimant, Ms. Johnson indicated that the claim would be denied. She testified that this conversation occurred after the MRI was done.
Respondents offered the testimony of Ms. Lisa Johnson. Currently, she is employed by Intracorp. However, she served as Industrial Health Nurse for respondents in March of 2000. Ms. Johnson testified that on April 7, 2000, claimant called her and reported that Dr. Grubbs had ordered an MRI. She indicated that claimant was on sick leave as a result of bronchitis. Ms. Johnson testified that claimant reported shoulder pain. Upon inquiry, claimant stated that the injury was not the result of a specific incident. Ms. Johnson testified that she informed claimant that initiating a claim would be difficult. Also, she stated that compensability was doubtful absent a specific incident.
Based on claimant's continued interest in filing a claim, Ms. Johnson scheduled an appointment with Dr. Michael Lack, the company physician. She testified that he could not reach a conclusion with respect to the etiology of claimant's condition.
On cross-examination, Ms. Johnson stated that she was primarily responsible for handling workers' compensation claims during her employment with respondents. She testified that this included advising employees regarding their legal rights. Ms. Johnson stated that after speaking with claimant, she called Ms. Georgia Beuscher, Insurance Adjuster. After presenting the facts, the adjuster agreed that without satisfying the specific incident requirement, claimant's claim would be denied.
Ms. Johnson testified that when claimant stated that an MRI was ordered, she encouraged her to have the test but recommended use of the group health insurance policy. Ms. Johnson stated that her decision to complete an injury report form was predicated upon claimant's persistence.
In response to the administrative law judge's inquiry, Ms. Johnson explained her understanding of the law. In this regard, she stated that the only exceptions to the accidental injury requirement included: carpal tunnel syndrome as a result of rapid repetitive motion, back pain, and hearing loss. Ms. Johnson testified that Ms. Beuscher furnished an explanation of the definitional requirements of the law.
The medical evidence showed that claimant initially consulted Dr. Grubbs for right shoulder pain on March 31, 2000. On clinical examination, he noted pain and tenderness. Dr. Grubbs prescribed medication and scheduled a return appointment for claimant. Also, he ordered an x-ray series. On April 6, 2000, claimant reported continued shoulder pain. As a result, Dr. Grubbs ordered an MRI, which was done on April 14, 2000. In addition to bursitis, the test also showed "Distal suprasinatus tendinopathy without definite tear identified."
On April 19, 2000, Dr. Grubbs authored a chart note which included his diagnoses as well as an opinion on causation:
. . . The shoulder x-rays show that she has some supraspinatus tendinopathy and she has acromial and subdeltoid bursitis. It is her job; it is the work she is doing. It is the repetitive motion of the same machine over and over again that is causing her problems.
Dr. Grubbs recommended an anti-inflammatory medication, and a new machine to operate at work. Claimant was reassigned, and her symptoms improved.
On November 9, 2000, Dr. Grubbs signed a "Physician's Evaluation" drafted by claimant's counsel. According to this document, an MRI demonstrated abnormalities, and Dr. Grubbs diagnosed "Acromial and subdeltoid bursitis." Moreover, the evaluation form indicated that the major cause requirement was satisfied.
Claimant contends that she sustained a gradual onset shoulder injury. To meet her burden of proof, claimant must show that her shoulder injury: arose out of and in the course of her employment, caused internal or external physical harm to the body requiring medical services, was caused by rapid repetitive motion, and was the major cause of the disability or need for treatment. Moreover, claimant's shoulder injury must be established by medical evidence, supported by objective findings. The phrase objective findings is defined by statute, and requires a showing that the findings are outside of the voluntary control of the patient. See, Ark. Code Ann. § 11-9-102 (Supp. 2001).
We find that claimant has satisfied the requisite causal connection. The evidence supports this conclusion. Particularly persuasive is the medical opinion of Dr. Grubbs for he has been claimant's family physician since 1993. He treated claimant for shoulder pain in 1993. Therefore, he had full knowledge of her medical history. Yet, Dr. Grubbs opined that claimant's bursitis is causally related to her job duties. This is significant since she was not working on the carrier line in 1993. In this regard, the evidence showed that claimant worked on the carrier line for about 2 ½ years.
In reaching this conclusion, we recognize that respondents have advanced the argument that claimant's condition is due to a preexisting condition. The record showed that in 1994, Dr. Grubbs treated claimant for complaints of shoulder, arm, and neck pain. Also, she reported a burning sensation. However, diagnostic testing in the form of cervical and thoracic MRI's proved normal.
Dr. Grubbs made a referral to Dr. Kenneth Tonymon, a neurosurgeon. Claimant furnished Dr. Tonymon with a history of a specific incident injury occurring two years earlier at work as she lifted a counter shaft. Claimant informed him that the company physician diagnosed a muscle strain. Dr. Tonymon ordered electrodiagnostic studies, which were normal. On clinical examination, he detected trigger points in the trapezius and paracervical regions. Dr. Tonymon diagnosed myofascial pain syndrome.
On June 1, 1995, a chart note authored by Dr. Grubbs showed that claimant consulted the company physician for right arm, neck, and shoulder pain. The note added that diagnostic testing in the form of CT scans revealed that: "nothing was found in the neck and the shoulder . . ."
Dr. Grubbs never characterized claimant's bursitis as a preexisting condition. Indeed, there are no diagnostic tests documenting this condition until 2000. On the "Physician's Evaluation completed on November 9, 2000," Dr. Grubbs attributed claimant's bursitis to her job duties. The evidence showed that prior to March of 2000, claimant was not performing the same duties in 1994. Under these circumstances, we find no evidentiary basis for the theory advanced by respondents.
We also find that the objective findings requirement is satisfied. In this regard, diagnostic testing revealed ". . . increased T2 signal in the subacromial and deltoid bursa." Based on this finding, the radiologist concluded that claimant had bursitis, which he characterized as mild. According to Dorland's Illustrated Medical Dictionary, 28th Ed., bursitis is: "inflammation of a bursa, occasionally accompanied by a calcific deposit in the underlying supraspinatus tendon; the most common site is the subdeltoid bursa." Inflammation of the bursa is a finding which claimant cannot control.
Likewise, claimant has fulfilled the major cause requirement. In Medlin v. Wal-Mart Stores, Inc., 64 Ark. App. 17, 977 S.W.2d 239 (1998), the Court of Appeals explained this element, stating that it requires a showing that the work-related injury is the major cause of the disability or the need for treatment. We are convinced that the only reason claimant sought medical care was for the treatment of her work-related bursitis. Therefore, she has met her burden of proof.
Claimant must also prove that her injury was caused by rapid repetitive motion. In High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998), the Court of Appeals noted that claimant's employment duties on an assembly line required the placement of one nut about every fifteen seconds. The court deemed this compelling evidence of rapid repetitive motion.
The Supreme Court has also considered this requirement. In Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998), the court surveyed the case law with respect to rapid repetitive motion. Their opinion included a description of the lower court's ruling in Baysinger v. Air Sys., Inc., 55 Ark. App. 174, 934 S.W.2d 230 (1996). In Baysinger, The Court of Appeals rejected the rapid repetitive motion standard of "exact or almost exactly the same movement over and over," holding that the statute may be satisfied by considering multiple employment tasks together. The Malone Court concluded that the test consists of two parts, and if claimant is unable to demonstrate repetitiveness, the question of rapidity is never reached. Claimant testified credibly with respect to her job duties. Moreover, Mr. Mitchell offered additional testimony on this point. The evidence showed that to process 250 carriers per shift, approximately 3,750 movements were required of claimant. The carrier line on which claimant worked required approximately 15 distinct steps. When considered together, the rapid repetitive motion requirement is satisfied. Therefore, claimant has met her burden of proof.
To summarize, we specifically find that claimant satisfied all elements of a gradual onset shoulder injury. She demonstrated physical harm to the body. Objective medical evidence was presented in the form of MRI results. Moreover, we find that the injury was caused by rapid repetitive motion. The testimony of claimant and her supervisor established that claimant's work on the carrier assembly line involved rapid repetitive motion. In this regard, Mr. Mitchell testified that claimant was required to move her upper extremity 15 times to process one part, which corresponds to about 3,750 movements of the upper extremity per shift. Claimant's physician offered opinions on causation and major cause, which satisfy the act.
In reaching his decision, the administrative law judge determined that claimant was a credible witness. We agree with this credibility assessment. We specifically find that a preponderance of the credible evidence supports a determination that claimant has met her burden of proof.
Claimant seeks only medical benefits in this case. Respondents are liable for all reasonably necessary medical treatment. Ark. Code Ann. § 11-9-508 (a) (Repl. 1996). What constitutes reasonably necessary treatment is a fact question for our resolution. General Electric Repair Car Servs. v. Hardin, 62 Ark. App. 120, 969 S.W.2d 667 (1998).
According to the record, claimant initially consulted Dr. Grubbs for shoulder pain on March 31, 2000. He ordered x-rays and prescribed medication. When claimant's condition failed to improve, Dr. Grubbs ordered a more sophisticated diagnostic test in the form of an MRI. The MRI revealed bursitis, for which he prescribed an anti-inflammatory medication. Concluding that claimant's condition was work related, he also recommended a job change. We find that the conservative treatment claimant received at the direction of Dr. Grubbs was reasonably necessary for the treatment of claimant's work-related injury.
Claimant testified that she received benefits through a group health plan as well as a group disability policy. Based on this evidence, we find that Ark. Code Ann. § 11-9-411 (Repl 1996) is applicable to this claim. Therefore, respondents are entitled to an offset for benefits paid by the group provider(s).
As a final matter, we note that the denial of claimant's claim was predicated upon the carrier's failure to appreciate the distinction between the requirements for a gradual onset injury from those of a specific incident injury. This distinction is not subtle, and numerous cases have articulated the respective elements since the passage of Act 796. Moreover, the appropriate paperwork was completed by respondent employer only because of claimant's persistence. It is unsettling that claimant was discouraged from seeking benefits based on the misinformation furnished by respondent employer. More disturbing, however, is the claims adjuster's lack of knowledge with respect to the definitional requirements of compensability, which is fundamental to an understanding of the Arkansas Workers' Compensation Act.
Based on our de novo review of the record, and for the foregoing reasons, we specifically find that claimant sustained a gradual onset injury to her right shoulder injury for which she is entitled to receive all reasonably necessary medical benefits.
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 opinion of the administrative law judge. 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.
IT IS SO ORDERED.
_____________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion finding that the claimant proved by a preponderance of the evidence that she sustained a compensable injury. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof.
In my opinion, the medical evidence, as well as the testimony, does not support a finding that the claimant sustained a compensable injury. The medical records indicate that this was not the first episode of right shoulder problems that the claimant had. The medical records indicate that on March 9, 1994, the claimant reported to Dr. Danny Grubbs with pain in her right shoulder which extended into her neck and arm. The claimant underwent an MRI of the cervical spine, which was "completely normal." Dr. Grubbs referred the claimant to Dr. Keith Tonymon, a neurosurgeon, who conducted a neurological examination. The examination revealed that it was normal without signs of radiculopathy. Dr. Tonymon referred the claimant to Dr. Terrence Braden, who ordered nerve conduction studies, which were also normal.
The claimant again sought treatment for pain in her shoulder, neck, and right arm in June of 1995. CT scans of her neck and head were performed, which were again negative. In April of 1997, the claimant complained of pains in numerous joints, including her wrists, shoulders, ankles and knees. She also complained of stiffness in the muscles of her neck and back and shoulders on November 12, 1998. In short, the medical evidence shows that the claimant had been complaining of problems with her right shoulder for at least six years prior to her complaints of right shoulder pain in March of 2000. Therefore, I find that the claimant has failed to prove by a preponderance of the evidence that she sustained a compensable right shoulder injury.
However, even if I were to find that the claimant's right shoulder bursitis was caused by her employment with the respondent, which I do not find, I find that the claimant's bursitis was not caused by rapid and repetitive motion. The claimant offered both her testimony and that of Mr. Mitchell regarding her job description. Mr. Mitchell testified that the carrier was a device which connected the axles underneath a car. He explained that the carrier would approach the claimant on the conveyor belt and that the claimant would flip it over with her right arm into a cradle. She would then take four bolts and screw those down on bearing caps. This movement involved twisting a screw with her fingers and then using an airgun. Once the bearing caps were tightened, the bearing cap and the cover face of the carrier were stamped A, B, or C. This was done by using the right hand to tap as if using a hammer. Mr. Mitchell testified that this motion was different than others which the claimant had done in the process, including when the carrier was slipped over and when the airgun was used.
The claimant would then turn the carrier in an upright position, again using a different motion. With both hands, the claimant would load the carrier into a machine by rotating her whole body, not just the shoulders, in a motion different from what has previously been described. The claimant would then hit the "start" button, and the machine would cycle. Once the cycle was completed, the carrier would be removed with both hands and placed on the conveyor belt.
In addition to these responsibilities, Mr. Mitchell testified that operators such as the claimant were required to perform housekeeping functions and were allowed breaks while on the line. Mr. Mitchell testified as follows regarding other activities associated with the carrier line:
Okay. And what would be involved with the cleaning activities? Can you describe for the Judge the motions of the work involved in the cleaning?
Well, we have a conveyor down as the bolts that go into the carriers, which you have to tighten with hand, they will fall on the floor. So, there is some bending and stooping and kneeling, getting down on her knee to get these — if you drop your bearing caps or whatever, and you get down and clean that up. And there's a certain amount of chips that gets on the floor that you might get down — down to get also for some of these at the conveyor.
And that requires totally different motions than the assembly line work?
Yeah, that's different than assembly, and like I said, it's just chips or whatever. You're sweeping or mopping, you pick up and then get down and pick up bearing caps, bolds (sic), or whatever it is that's underneath the machines and around the machines.
Is an employee allowed to smoke at the work station?
Yes.
Okay. Have you seen employees get ahead or have a moment where they can smoke a cigarette during the course of a workday?
In your scheme of things, that's allowable. So, yes, you can get ahead, and if your line is going, then you have that time if you smoke.
Did Ms. Foshee smoke?
I'm certain she smokes.
So that wouldn't have been against the work rules for her to stand and smoke a cigarette?
Is it against the work rules, no.
The claimant admitted that she would take the opportunity to smoke if she was ahead of a slower employee. The claimant admitted that she did more than simply work the carrier line:
How often would you get ahead of him during the course of a day?
Most of the time probably right before quitting time in the afternoons he would be caught up, and I would —
And it's on those occasions where you were working ahead that you could stand and smoke a cigarette?
Well, most of the time I was cleaning, because it would take me a good hour to an hour and a half to clean that place. And Jerry can tell you that I would come in every day complaining about the filth, and most of the time I would have to clean before I even started my jobs.
Okay. So most of the time when you weren't actually doing this carrier or assembly work, you were busy cleaning?
Exactly.
How would you clean, what types of motion or work would that involve?
The chips would build up underneath where I flipped the carrier.
On the conveyor belt?
Yes, I would have a little trough down here, but then there was an open area underneath the line where it would catch all the excess chips, bolts, stuff like that, and the machines leaked. They leaked coolant real bad.
What would you do when the chips built up on the conveyor belt or underneath —
I would take — I would take the shovel and dig them out and throw them in this dumpster, and in that process I got them all over the floor. I would clean it up off the floor, and then I would have to, once I got the floor clean enough, I would have to mop the floor and get the coolant up out of the floor. But that was just an everyday, routine thing on that job because it was a very dirty job.
Okay. So, was this something you had to do continually throughout the course of the day insofar as cleaning to making sure the area stayed clean?
Yes, because it —
So you didn't have much time for a break. You were doing a lot of different types of work?
Right, I sure was.
In my opinion, the evidence fails to establish that the claimant's right shoulder problems were caused by her job duties. The medical opinion of Dr. Grubbs stating that the claimant's job duties were the cause of her bursitis are based upon the subjective history provided to him by the claimant. A medical opinion based solely upon claimant's history and own subjective belief that a medical condition is related to a compensable injury is not a substitute for credible evidence.Brewer v. Paragould Housing Authority, Full Commission Opinion filed Jan. 22, 1996 ( E417617). The commission is not bound by a doctor's opinion which is based largely on facts related to him by claimant where there is no sufficient independent knowledge upon which to corroborate claimant's claim. Roberts v. Leo-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).
Dr. Grubbs admitted that he did not complete the History of Injury portion of his Physician's Evaluation form contained in his medical records. Dr. Grubbs testified that most patients who present to him with these conditions have an unknown etiology. In addition, Dr. Michael Lack, the company doctor, could not relate the claimant's problems to her employment. Further, the claimant's job was characterized by a number of different motions involving her right shoulder and other body parts. Both the claimant and Mr. Mitchell testified that many different motions were involved in the claimant's employment. The number and type of different body movements involved certainly did not rise to the level of rapid and repetitive with respect to the claimant's job duties.
Therefore, after I consider all the evidence, I cannot find that the claimant sustained a compensable injury to her right shoulder caused by rapid repetitive motion. Accordingly, I must respectfully dissent from the majority opinion.
_______________________________ MIKE WILSON, Commissioner