Opinion
CLAIM NO. E503994
OPINION FILED MAY 29, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by BEN RICE, Attorney at Law, Jacksonville, Arkansas.
Respondent represented by WILLIAM SMITH, West Memphis, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed October 6, 1997 finding that claimant sustained compensable bilateral knee injuries as a result of rapid repetitive motion. 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 should be reversed.The evidence reveals that claimant worked as a store representative for respondent beginning in late November, 1994. For the year prior to that, claimant worked for respondent as a swing store representative. Goldie Powell, claimant's supervisor, explained that a store representative has more overall responsibilities than a swing store representative. Claimant contends that after being promoted to a store representative in November of 1994 she developed bilateral knee problems as a result of her employment. Claimant did not seek medical attention for her knee condition until March of 1995. At the hearing held on June 27, 1997, claimant contended that her left knee problems resulted from rapid repetitive motion of her left knee and is therefore a compensable injury. Conversely, respondent contended that claimant's left knee problems were not compensable under Act 796. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with respondent.
Claimant does not contend that she sustained a specific incident injury to her knee; rather, claimant contends that she sustained a gradual onset injury. To satisfy the definitional requirements for gradual injuries falling under Ark. Code Ann. § 11-9-102(5)(A)(ii) (Supp. 1997), an employee must prove by a preponderance of the evidence that she sustained internal or external damage to the body as a result of an injury that arose out of and in the course of employment, and the employee must establish the compensability of a claim with medical evidence, supported by objective findings. 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." Finally, Ark. Code Ann. § 11-9-102(5)(A)(ii)(a), the specific provision governing this claim, requires claimant to prove that the injury was caused by "rapid repetitive motion."
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) (Repl. 1996) 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 andKildow and the Court did not adopt the Commission's Throckmorton 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, ___ 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 the present claim, we find that claimant failed to prove by a preponderance of the evidence that her left knee injury was caused by work-related rapid repetitive motion. Specifically, we find that claimant has failed to prove that her work duties for respondent required rapid motion of her knees. Claimant estimated at the hearing that she would rock back and forth on her knees an average of 43 times each minute when rotating and stocking the product from the bottom shelf. It is claimant's testimony that working product on the bottom shelf required claimant to be on her knees approximately 40% of her work day.
In corroboration of her testimony, claimant offered the testimony of Sandra King and Donna Corley. Ms. King testified that she used to work for respondent in the same position held by claimant. In addition, Ms. King testified that she is an employee of Mega Market and has personally observed claimant working product from the lower racks in the Mega Market store. It is Ms. King's testimony that claimant would spend approximately 25% of her time on her knees rotating and stocking the lower shelf. Likewise, Ms. Corley testified that as an employee of Harvest Foods she is familiar with claimant and observed the claimant working on her knees. Ms. Corley estimated that claimant would spend anywhere from 30 to 50% of her time in the store rotating and stocking the bottom shelf.
With regard to Ms. King and Ms. Corley's testimony it must be pointed out that neither observed claimant on a regular basis for any extended amount of time. Rather, the evidence reveals that these two employees had numerous job duties which precluded them from watching the claimant perform her work on the display shelves for any extended period. In addition, it is noted that although Ms. King used to work for respondent, at the time of the hearing she had not performed the duties of a store representative for over 8 years. Moreover, there was no evidence presented that Ms. King ever counted the knee movements herself or participated in claimant's experiment when knee movements were calculated. Rather, Ms. King merely acquiesced to the numbers presented her by claimant's attorney without any supporting basis for her conclusion. Consequently, we do not find Ms. King and Ms. Corley's testimony to be persuasive.
The evidence reveals that in addition to rotating and stocking product on the bottom shelves, claimant was required to work the product on all shelves and displays with Frito Lay products. Claimant's job required her to travel to four different stores each day, check product in the back room of the store with the store's inventory clerk, walk the stores to physically observe the product, and to retrieve any misplaced product left about the store by store customers, move product from the store's back room and to stock and rotate product on shelves and displays.
According to claimant's testimony, she would work seven to eight bags of chips on a shelf in a minute. It is claimant's testimony that in order to work the seven to eight bags on the lower shelves she would make approximately forty-three knee movements. After analyzing claimant's testimony, and reviewing the evidence, including the photographs of the racks and displays, we cannot find claimant's testimony regarding forty-three actual knee movements to be credible.
A claimant's testimony is never considered uncontroverted.Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985). Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). Even assuming, arguendo, that claimant's calculations are correct, a finding we do not make, we cannot find that these knee movements amount to rapid repetitive motion as that phrase is contemplated in Act 796. At most, the majority of the knee movements described by claimant would be similar to standing on one's feet and taking small steps from side to side. We find nothing in such action to be swift or quick.
Moreover, when this case is analyzed under the Court's holdings in Lay, Kildow and Ruddick, we find that claimant's duties much more resemble the duties of the claimant in Lay and not the assembly line duties in Kildow Ruddick. It is specifically noted that this claimant did not work on an assembly line, did not have a quota, and was not required to perform at any particular pace. Furthermore, claimant readily testified that only 40% of her time was performed while on her knees. Even assuming this figure to be accurate it must be noted that this 40% must be divided among four different stores. Consequently, approximately only 10% of claimant's time would be allotted to working on her knees in each particular store. There was no evidence presented that during this 10% of the time claimant remained continuously on her knees stocking and rotating stock. It is more likely that during this 10% of the time claimant interspersed periods of standing on her knees with periods of rotating and stocking product on the upper shelves which did not require claimant to be on her knees. Conceivably claimant only worked one or two types of a product at a time which would necessitate a combination of standing and kneeling. (i.e., rotate and stock all Ruffles, then Rold Gold Pretzels, then Tostidos, etc.) Consequently, claimant's motions on her knees would be separated by periods of several minutes or more during which she was standing, walking, driving, or performing some other activity which did not involve claimant's description of working on her knees. Under such facts, the Arkansas Court of Appeals affirmed our denial of benefits. SeeLay v. United Parcel Service, supra.
We also feel compelled to point out that when claimant complained of knee pain to her treating physicians, she attributed the pain to standing and walking on concrete floors up to 12 to 15 hours per day, not to kneeling or the knee movements she described at the hearing. Claimant first presented to Dr. Charles Himmler on March 13, 1995, with a history of "standing on concrete floors 12 to 15 hours, 5 to 6 days a week . . . painful when stands or walks." Likewise, in July of 1995 claimant provided Dr. James Mulhollan with a history of "She relates the problem to working 60 to 70 hours per week on a concrete surface for Frito Lay." In a hand written note, in the margin of Dr. Mulhollan's written office notes claimant did advise him that she worked on her knees stocking shelves but claimant did not relate her problem to this work, and it is uncertain when and by whom this notation was made. In August of 1995 claimant provided Dr. James Abraham with a history of "lots of standing on concrete floors . . . the more she stood the worse they felt." On October 24, 1995, claimant provided Dr. Ken Martin with a history of "She had to do a lot of walking, climbing and squatting. She increased her hours from 12 to 15 hours per day and began having increasing pain in the front of both knees." Despite the one notation of working on her knees, claimant's physicians did not relate her condition to the alleged rapid repetitive knee movement. Rather, all opinions addressing causation refer directly to claimant's work of standing on concrete floors 12 to 15 hours per day. Accordingly, we cannot find that claimant has proven by a preponderance of the evidence that her alleged rapid repetitive knee motion is the major cause of claimant's knee problems. Rather, all medical evidence relates claimant's knee problems to her excessive standing and walking on hard surfaces, and claimant failed to present any evidence contending that her standing or walking was rapid repetitive motion.
In addition, we note that prior to claimant's complaints of knee pain in March of 1995, claimant presented to her treating physician, in June of 1993 with a history of hands and knees aching for the past two weeks. On his examination, Dr. Himmler noted tenderness over claimant's medial knee joints. When we weigh this evidence of pre-existing knee problems, with Dr. Martin's testimony that claimant's condition is degenerative in nature, and the medical opinions relating claimant's condition to her standing, not to the alleged rapid repetitive knee motion, we find that claimant has not proven that the alleged rapid repetitive duties are the major cause of claimant's knee problems.
Therefore, for those reasons stated herein, we find that the decision of the Administrative Law Judge should be and hereby is reversed.
IT IS SO ORDERED.
DISSENTING OPINION
[29] I must respectfully dissent from the majority opinion finding that claimant has failed to prove a compensable injury.Claimant presented credible testimony concerning her job duties as a "sales rep" for respondent employer, which she performed five days a week from 4:00 a.m. until 5:00 — 7:00 p.m. In general, claimant was responsible for stocking and rotating respondent employer's product on the shelves of three or four local grocery stores, and testified that she spent some four hours out of a ten-hour day on her knees. During November or December of 1994, claimant began to experience difficulty with her knees which she reported to her supervisor, Ms. Goldie Powell. Ms. Powell, whose testimony is discussed further below, stated that claimant began working for respondent employer in 1993, and agreed that she stopped working "sometime in March of `95." Ms. Powell also acknowledged that claimant became a "store rep" in late November of 1994.
Shortly before the hearing claimant went to one of her former stores with kneepads and performed the motion involved in her old duties to determine the rate of speed at which she previously worked. This test (performed three times) yielded an average of 43 rocking motions per minute, though claimant asserted that she would have done "a lot more" when she was actually working for respondent employer (claimant was, so to speak, "out of practice," having not performed the task in nearly two years by this time). As she demonstrated these motions at the hearing, claimant offered the following narration:
Okay. What I would have to do, I would have my boxes laid out over here on the side here, and I would be emptying the boxes, but I would get down on my knees like this, and I would have to pull the chips out of here, and I would be rocking back and forth like this on my knees (demonstrating), and pulling them out, and then I would get down and rock back and forth this way and pull out the chips, and then I would go and take these chips and I would put them on the third and fourth shelf, and then I would move over to the next one and keep moving like this (demonstrating), and it would be doing the same thing back and forth on my knee rocking it back and forth.
Other witnesses corroborated claimant's testimony to some extent. For example, Ms. Powell testified that claimant's work would have involved her knees for "less than a third" of a typical work day. Also, Ms. Sandra King, a former employee of respondent employer, verified that claimant's job involved a certain amount of rocking back and forth on her knees and, when Ms. King performed it, required her to be on her knees about 25% of the time. Ms. King also stated that claimant's figure of 43 movements per minute affecting the knees "would not be over-estimating it. That would be correct." Furthermore, Ms. King testified that she too had sought medical treatment for her knees, and would sometimes lay on the floor to perform the duties in question. Finally, Ms. Donna Corley, an employee at one of the stores which claimant serviced, described claimant as "very fast paced," and estimated that she spent approximately 50% of her time on her knees (though Ms. Corley admitted that she "couldn't honestly answer that").
Claimant initially received treatment from Dr. Charles Himmler, an osteopath, in March, 1995. Dr. Himmler eventually referred her to Dr. James Abraham for a rheumatology consult. Dr. Abraham diagnosed an overuse syndrome and recommended conservative strengthening exercises. Claimant subsequently consulted Dr. James Mulhollan on October 24, 1995, who recommended a slightly more aggressive exercise program involving stationary bicycle riding and swimming. Ultimately, claimant presented to Dr. Kenneth Martin, an orthopedic surgeon, who performed an "arthroscopic resection of plica and lateral retinacular release" on claimant's right knee on March 13, 1996. Some time later, in May of 1997, Dr. Martin performed a similar arthroscopy on claimant's left knee. During his deposition of October 22, 1996, Dr. Martin indicated his belief that claimant's work was the "major cause" of her right knee condition, and would be the same with regard to her left knee (the deposition was taken prior the operation). On June 10, 1997, Dr. Martin issued a 10% permanent impairment rating to the left knee, based upon the A.M.A.'s Guides.
I would first of all find that claimant's work activities which affected her knees did consist of rapid repetitive motion. If claimant was able to perform 43 rocking motions per minute some two years after ceasing her work and in the wake of bilateral arthroscopies, I am persuaded that her pre-injury rate of speed was considerably higher. Even if that were not the case, 43 motions per minute still amounts to slightly more than one motion per second. And while the estimates vary as to how much time claimant spent per shift doing such work, it has never been required for a claimant to engage in rapid repetitive motion for an entire shift (even under the old Throckmorton analysis).
Furthermore, claimant's account of her duties does not stand alone, but is corroborated as discussed above. I am particularly persuaded by the testimony of Ms. King, who agreed with claimant's figure of 43 motions per minute and who also experienced knee difficulty associated with the "sales rep" job. In sum, I have little difficulty finding that claimant's work activities were performed in a "swift or quick" manner. Finally, it is apparent from claimant's testimony cited above that her stocking duties were repetitive. Based on these circumstances, I would find that claimant's work activities did consist of rapid repetitive motion.
Given Dr. Martin's deposition testimony, I would also find that claimant's knee problems are causally related to her employment with respondent employer and are the "major cause" of her resulting disability and need for treatment. I further submit that there is a clear logical connection between claimant's performance of a signficant amount of work on her knees and the subsequent development of knee problems in her pattelar or kneecap region. With regard to "objective findings," I note Dr. Martin's comments of June 10, 1997: "There is no instability and she has less crepitance now than she did prior to surgery." (Emphasis added.) Obviously, claimant's left knee exhibited "crepitance" both before and after her surgery, and I would thus find that both her initial injury and subsequent permanent impairment have been established by medical evidence supported by "objective findings." Finally, it is clear that claimant's injury resulted in an internal physical harm and required her to seek "medical services." Accordingly, I find that claimant has proven, by a preponderance of the evidence, that she sustained a compensable rapid repetitive motion injury to her left knee.
Based on Dr. Martin's letter of June 10, 1997, I would also find that claimant is entitled to a 10% permanent anatomical impairment rating. Finally, within the same letter, Dr. Martin stated that "[claimant] should be able to do any sedentary type activity." I would interpret this to mean that claimant could return to light duty work as of June 10, 1997, and that she is entitled to an award of temporary total disability benefits from the date of her surgery until that time.
As set out above, I respectfully dissent.
PAT WEST HUMPHREY, Commissioner