Opinion
CLAIM NO. E705912
OPINION FILED AUGUST 11, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by F.S. "RICK" SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondent represented by TOM HARPER, JR., Attorney at Law, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
[2] Claimant appeals and respondent cross-appeals from a decision of the Administrative Law Judge filed October 30, 1997, finding that claimant developed a compensable aggravation of her pre-existing osteoarthritis condition existing in her hands while working for respondent in August of 1995 and finding that as a result of the aggravation of claimant's pre-existing arthritis claimant has sustained a 1% permanent impairment of each upper extremity. Based upon our de novo review of the entire record, we find that claimant has failed to meet her burden of proof. Therefore, we find that the decision of the Administrative Law Judge must be reversed.At the hearing held on October 1, 1997, claimant contended that she sustained a new injury or an aggravation of her osteoarthritis in her hands while employed by respondent. Conversely, respondent contended that after initially accepting the claim as compensable, once receiving the diagnosis of osteoarthritis, the claim was controverted on the grounds that claimant cannot prove the compensability of her aggravation. Based upon our de novo review of the entire record, we find that claimant has failed to meet her burden of proof.
Since claimant asserts that she sustained an aggravation of a pre-existing condition while employed by respondent in August of 1995, the present claim is governed by the provisions of the Arkansas Workers' Compensation Laws as amended by Act 796 of 1993. See Patricia Baker v. Cheyenne Industries, Full Commission opinion filed March 18, 1998, ( E615082); Atkins Nursing Home v. Gray, 55 Ark. App. 125, 923 S.W.2d 897 (1996); City of Fouke v. Butram, 59 Ark. App. ___, ___ S.W.2d ___ (December 3, 1997).
In his opinion, the Administrative Law Judge stated that claimant did not have to prove her aggravation was caused by rapid repetitive motion. However, in making this statement, the Administrative Law Judge failed to cite any authority for this proposition. In our opinion, the Administrative Law Judge erred in reaching this conclusion. Whether claimant sustained a new injury or an aggravation of a pre-existing condition, claimant must still meet her burden of proof that the new injury or aggravation is compensable under Ark. Code Ann. § 11-9-102 (Supp. 1997) Baker v. Cheyenne Industries, supra.
Claimant was diagnosed with osteoarthritis. This claim does not involve carpal tunnel syndrome. Therefore, the recent Supreme Court opinion, Kildow v. Baldwin Piano Organ, ___ Ark. ___, ___ S.W.2d ___ (1998) holding that claimants with carpal tunnel syndrome do not have to prove rapid repetitive motion is inapplicable to this case.
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, F.C. 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 gradual onset injury or aggravation. Consequently, in order to prevail on this theory claimant must prove by a preponderance of the evidence that she sustained an 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)(ii) and § 11-9-102(5)(E)(ii) (Supp. 1997). 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 claimant 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., F.C. 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, she fails to establish the compensability of the claim and the claim must be denied. Reed v. ConAgra, supra.
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; Rudick v. Unifirst Corp., 60 Ark. App. 173, ___ S.W.2d ___ (January 28, 1998); High Capacity Products v. Moore, 61 Ark. App. 1, ___ 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 . . . [A]ppellant 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, 61 Ark. App. 1, ___ 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 ___.
Most recently, the Arkansas Supreme Court has addressed the rapid repetitive motion provision in Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) (Supp. 1997). See Kildow v. Baldwin Piano Organ, 333 Ark. ___, ___ S.W.2d (1998) and Malone v. Texarkana Public Schools, 333 Ark. ___, ___ S.W.2d ___ (1998). The Kildow holding applies only to carpal tunnel syndrome, and, therefore, does not apply to this claim. After reviewing the case law interpreting "rapid repetitive motion" the Court in Malone, supra, stated:
. . . [T]he standard is a two-prong test: (1) the task must be repetitive, and (2) the repetitive motion must be rapid. As a threshold issue, the task 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.
In analyzing the evidence at the hearing, the administrative law judge concluded that claimant's work was not rapid and repetitive as that phrase has been interpreted by the Commission and the Court of Appeals. Even though claimant testified that she had to perform the work depicted in the video at a faster pace since she usually performed the duties alone and in the video two people were performing those duties, we cannot find that the work, even if being performed by one person, involves rapid repetitive motion. In our opinion, claimant's job tasks more closely resemble the activities of the UPS driver in Lay, supra. Claimant was only required to remove a large spool from the machine every seven minutes, roll the spool to a table, place it in a large plastic bag, seal it with a tie, and then place it on a side-by-side table. Even with one person performing this job, the actual physical activities of the job, do not amount to repetitive tasks completed in a rapid manner. On appeal, claimant has presented no evidence or argument that the Administrative Law Judge's finding regarding the rapidity and repetitiveness of her work should be reversed. In fact, claimant's appeal appears to acquiesce to the Administrative Law Judge's finding that ". . . it is obvious that the duties being performed by the claimant was not rapid and repetitive . . ." Accordingly, after analyzing all the evidence, we find that claimant has failed to prove by a preponderance of the evidence that she sustained a new injury or aggravation of her osteoarthritis as a result of rapid repetitive motion at work. Therefore, we find that the decision of the Administrative Law Judge finding that claimant sustained a compensable injury for which permanent disability benefits are due must be reversed.
As an aside, claimant has challenged the constitutionality of the scheduled injury law in Arkansas on the grounds that it violates the equal protection and due process clauses of the United States and Arkansas Constitutions. Although we find claimant is not entitled to any benefits, which thus renders her constitutional argument moot, we note that the constitutionality of the scheduled injury provisions to the workers' compensation act have been found constitutional by this Commission. See Conley Thompson v. State Highway and Transportation Department, Full Commission Opinion November 4, 1997 ( E400490). Since we did not reach the objective medical requirement under our analysis, we find it unnecessary to even address claimant's argument that this provision is unconstitutional.
Accordingly, for those reasons set forth herein, we find that claimant has failed to prove by a preponderance of the evidence that her present condition was caused by rapid repetition motion. Therefore, we find that the decision of the Administrative Law Judge, must be, and hereby is, reversed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.