Opinion
CLAIM NO. E713336
OPINION FILED JUNE 3, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by SHEILA CAMPBELL, Attorney at Law, Little Rock, Arkansas.
Respondent represented by J. DAVID WALL, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Reversed
OPINION AND ORDER
[2] The respondent appeals a decision of the Administrative Law Judge filed on November 16, 1998, finding that claimant sustained a compensable injury to her left shoulder in November of 1996. Based upon our de novo review of the entire record, we find that claimant has failed to prove by a preponderance of the credible evidence that she sustained either a specific incident or gradual onset injury arising out of and in the course of her employment. Therefore, we find that the decision of the Administrative Law Judge must be reversed.At the hearing held on August 19, 1998, claimant contended that she sustained a compensable injury to her shoulder for which she is entitled to benefits. In her contentions, claimant's attorney emphasized that claimant is alleging a gradual onset injury. However, through her testimony claimant alleged that she sustained a specific incident injury in November of 1996, which gradually worsened as she continued to perform her employment duties. Conversely, respondent contended that claimant did not sustain a compensable injury in November of 1996, or at any other time for which she is entitled to benefits. After reviewing the evidence without giving the benefit of the doubt to either party, we find that claimant has failed to prove either a specific incident or gradual onset injury.
Claimant testified that while carrying out her duties cleaning a breader machine in November of 1996, she sustained an injury to her left shoulder. Claimant described the injury as occurring in the following manner:
A. That morning, after they was through with the inspection and all that, the guy that did the number three fryer come through and I asked him could he help me let my belt down. He told me no. He was already running late because we had had the USDA inspection going on, and if we hold day shift up from their starting time, we be in trouble. So, I went ahead and tried to let the belt down by myself. It had a electric wire hanging across it — it had got hung on the electric wire and so that was why I had to lift it back up, to get it off the electric wire, before I could bring it back down. When I was doing that, I felt the tissue when it tore. So, that kind of slowed me down from doing my work so I went ahead and took my time on putting it back together.
Claimant testified that after this occurred she reported to her supervisor, Rita Stewart, that she had injured her shoulder and believed she tore some tissue in it. According to claimant, she was not asked to fill out an accident report, nor was she directed to seek medical attention from the company nurse. Claimant testified that she did not seek medical treatment for her shoulder until she went to her family physician, Dr. Patel, in January of 1997. Claimant was eventually referred to Dr. Jeffrey DeHaan in March of 1998. Dr. DeHaan diagnosed claimant with impingement bursitis and a possible rotator cuff tear. On August 29, 1997, claimant underwent an acromioplasty with a CA ligament release and decompression of the rotator cuff bursa and distal clavicle excision arthroplasty which was performed by Dr. DeHaan.
The claimant's injury occurred after July 1, 1993, thus, this claim is governed by the provisions of 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 Ark. Code Ann. § 11-9-102 as amended by Act 796. Jerry D. Reed v. ConAgra Frozen Foods, Full Commission Opinion filed Feb. 2, 1995 ( E317744). When a claimant alleges that she sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, she must prove by a preponderance of the evidence that she sustained an accidental 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)(i) and § 11-9-102(5)(E)(i) (Supp. 1997). She must also prove that the injury was caused by a specific incident and is identifiable by time and place of occurrence. See Ark. Code Ann. § 11-9-102(5)(A)(i). 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)."
If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, she fails to establish the compensability of the claim, and compensation must be denied.Jerry D. Reed, supra.
In our opinion, claimant has failed to prove by a preponderance of the credible evidence that she sustained an injury during the course of and arising out of her employment as a result of a specific incident in November of 1996. The medical records are void of any history consistent with claimant's testimony, consequently, we do not find claimant's testimony of feeling a tear occur in her shoulder while performing her job duties to be credible.
The first medical record introduced into evidence is Dr. DeHaan's March 28, 1997 clinic note. At that time, claimant provided Dr. DeHaan with the following history:
Callie is here as an initial patient with left shoulder pain. This has been going on now for about a month. It's primarily the left side. It bothers her with any overhead activity, laying on that side, or with any strenuous activities.
Absent from this history is any report of a specific incident which occurred in November 1996, or at any other time in which claimant heard or felt a tear in her shoulder. In our opinion, if claimant, in fact, felt or heard a pop in her shoulder, claimant would have advised each and every physician who examined her with regard to her shoulder complaints of that incident. Claimant did testify that she told Dr. DeHaan of the specific incident and of feeling the tear in her shoulder. However, there is no evidence in his clinic report or in any follow-up report which reflects that claimant ever told him of such a specific incident. Furthermore, the office notes or reports from Dr. Patel, the first physician who examined claimant with regard to her shoulder complaints, were not introduced into evidence. If claimant, in fact, sustained a specific incident and advised all of her physicians, including Dr. Patel, of this specific incident, one would expect claimant to introduce these records into evidence in support of her claim.
The independent medical evaluation performed by Dr. David Collins on March 9, 1998, does contain a history of an onset of pain in November of 1996. In his report, Dr. Collins noted:
The patient is asked, "When did you get hurt?" Her response is November 1996. She states that she first reported an injury to her shoulder in November 1996. Apparently, she did not punch out but reported this to her supervisor. Apparently record was made, but it is unclear of its location at the present time. She was advised to rest the shoulder and subsequently see her family physician.
Although claimant related an onset of problems with her left shoulder to Dr. Collins as beginning in November of 1996, there is absent from her history to Dr. Collins a report of a specific incident occurring in November of 1996, wherein claimant felt or heard a tear in her shoulder. Again, if claimant's account of hearing or feeling a tear in her shoulder while performing employment duties in November of 1996 were true, we would expect her to have reported this incident to Dr. Collins. There is no evidence that she did so. Moreover, given the seriousness of this alleged complaint, we would expect claimant's physicians to have recorded this complaint if, in fact, it was made.
Accordingly, after reviewing the evidence of record, we find that claimant has failed to prove by a preponderance of the credible evidence that she sustained a compensable injury as a result of a specific incident in November of 1996. We do not find claimant's account of such an incident occurring to be credible.
Simply because the claimant did not sustain a specific incident identifiable by time and place of occurrence, her 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. These exceptions are set forth in Ark. Code Ann. § 11-9-102(5)(A)(ii) through § 11-9-102(5)(A)(i)(v) (Supp. 1997). One such exception is for rapid repetitive injuries generally characterized as a non-back gradual onset injury. Ark. Code Ann. § 11-9-102(5) (A)(ii). To satisfy the definitional requirements for injuries falling under Ark. Code Ann. § 11-9-102(5)(A)(ii), the employee still must satisfy all of the requirements set forth above, with the exception of the specific incident definitiveness requirement. Thus, the employee still must prove by a preponderance of the evidence that she sustained internal or external damage to the body as the result of an injury that arose out of and in the course of employment, and the employee still must establish the compensability of the claim with medical evidence, supported by objective findings. For rapid repetitive injuries, claimant must prove that the injury was caused by rapid repetitive motion. However, in addition to these requirements, if the injury falls under one of the exceptions enumerated under Ark. Code Ann. § 11-9-102(5)(A)(ii), the "resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment." Ark. Code Ann. § 11-9-102(5)(E)(ii) (Supp. 1997). (Emphasis added.)
In three recent Court of Appeals Opinions, the Court has given the Commission some guidance in analyzing rapid repetitive claims. First, in Baysinger v. Air Systems, Inc., 55 Ark. App. 174, 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, ___ S.W.2d ___ (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, ___ Ark. ___, ___ S.W.2d ___ (May 28, 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.
Claimant's original contention was that of a gradual onset injury to her left shoulder. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we find that claimant has failed to satisfy the elements of proof for a gradual onset injury. Although Dr. DeHaan and Dr. Collins both opined that claimant's work is conducive to or is sufficient to account for claimant's clinical findings, we cannot find that claimant has 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. As noted by the Supreme Court in Malone v. Texarkana Public Schools, supra, a claimant must prove that the gradual onset injury occurred as a result of a task which is repetitive and that the repetitive motion is performed in a rapid fashion. Our review of claimant's proof reveals that claimant has not satisfied this element of proof by a preponderance of the evidence. In fact, there is no evidence with regard to the rate of speed within which 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, claimant was asked how long it would take for her to lift the wire belts for bracing, to which she responded:
A. It depends on what kind of mood you are working in. If you in a hurry, it's going to take anywhere from ten minutes, maybe a little bit 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.
Q. You said ten minutes at first, is that right?
A. Yes.
Q. Is that a normal time that it would take for you to grab the wire belt, lift it up, and install the brace underneath it?
A. That's right.
Q. And there are two of those belts, right?
A. Yes, sir.
Q. So you lift them up, you have two times each night where you lift them up and two times where you lower them, is that right?
A. No, sir. One time you lift them up and one time you lower them down.
Q. But you have two belts?
A. Yes, sir.
Q. So one for each belt?
A. Yes, sir.
After reviewing this testimony and all other evidence in the record, we find that there is no evidence that claimant performed her job duties of lifting the wire belts and cleaning the breader machine in a rapid repetitive fashion. Therefore, we find that claimant has failed to meet her burden of proof that she sustained a gradual onset injury. Accordingly, we find that the decision of the Administrative Law Judge finding that claimant sustained a compensable injury for which she is entitled to benefits must be reversed.
IT IS SO ORDERED.
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Commissioner Humphrey dissents.