Opinion
CLAIM NO. F003228
OPINION FILED NOVEMBER 29, 2001
Upon review before the FULL COMMISSION in Little Rock,
Pulaski County, Arkansas.
Claimant appeared pro se.
Respondents represented by the HONORABLE GAIL O. MATTHEWS, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on January 29, 2001. In that opinion and order, the administrative law judge determined that claimant failed to prove the occurrence of a compensable injury under the rapid repetitive motion theory. Based on our de novo review of the record, we find that claimant sustained a gradual onset injury caused by rapid repetitive motion. Therefore, the decision of the administrative law judge must be reversed.
Claimant works for respondents as a volleyball coach and physical education teacher. When the hearing was conducted, claimant's employment had spanned twenty-eight years. She offered the following description of her duties:
. . .[I]f you want me to break it down to specific minutes and hours a day, as I said, it's 130 minutes per day on game days that I coach volleyball, using my voice that 130 minutes per day, three days a week. That's just in the coaching part of it, in the gym. And 225 or more minutes per day, two days a week, that's game days, I use my voice trying to project it, trying to get my message across to the girls what I need for them to do on the court. And again, that's done in a gym. Lots of those times, there are other games going on in adjacent courts, so there is an extreme amount of noise in the gym when I'm doing that.
And that also includes Saturday tournaments. And on those Saturday tournaments, that's junior high and senior high, that's through September and October. That's every Saturday. It usually starts anywhere between 8 o'clock and 9 o'clock in the morning and, depends on how well we do in the tournament. We have gone until 10, 11, 12 o'clock at night. And that's me, for example, we just finished the state tournament. And our match lasted two and a half hours. They will last anywhere from an hour and a half to two and a half hours. And that's with me constantly trying to tell the girls terms that I use, you know, cover, block, swing your arm, jump, reach, constant. I don't just sit on the sideline and passively clap my hands. I'm very vocal throughout the entire match on all the matches, whether it's the week days or these Saturdays.
But, typically, on those Saturdays, my voice gets no rest at all because from the time we start until, you know, late in the night, I'm going anywhere between and hour and a half to two hour matches. And like I said, I'm a very vocal coach. I'm talking to the girls all the time about, you know, you've got to serve here, you've got to serve there, follow through, reach, snap, and that sort of thing.
And that's, that's two games a week in September and October. The games are, the game days, Tuesdays and Thursdays, we start at 5 o'clock and usually finish up around 9 to 9:30. And that's after a day of teaching school all day and doing my practices two periods a day. And that's approximately 60 days during the season weekdays, Monday through Friday.
And another 130 days of post-season after my volleyball season is over with, I use my voice 130 minutes per day again with practice and drills. Because we never put the volleyballs up. I'm constantly, that part of my practice is I'm talking, teaching them the basic fundamentals. Again, I'm reviewing and encouraging them, you know, move your feet. Also, during this time, I'm spiking the volleyball at them or I'm — I'm involved in every drill for that 130 minutes. I'm tossing the ball at them and talking to them at the same time.
And along with those coaching duties, then I teach 135 minutes per day, five days a week, physical education. And that is also in a gym. Normally, there is another class going on in the gym at that time, so I have to project my voice for my 20 to 30 students to hear me.
Moreover, claimant testified that she conducts three volleyball camps during the summer months for which she is not compensated. She stated that the camps vary in length. For example, the senior high camp lasts three-four days, twelve hours per day.
Claimant testified that during the first week of practice for the 1998 volleyball season, she was particularly abusive with regard to her voice. She stated that she became hoarse, and this condition persisted throughout the winter. Consequently, claimant consulted Dr. Young in February of 1999. He diagnosed nodules and suggested complete rest or a reduction in her employment duties. Also, Dr. Young recommended the use of a microphone for voice projection. Ultimately, respondent employer purchased a microphone for claimant's use. This occurred in about December of 1999. Claimant testified that she continues to use the microphone daily. She explained that although it may be used during physical education classes, it is impossible to use the device during games and tournaments.
It is claimant's testimony that aside from her job duties, she does not engage in any other voice-intensive activities.
Claimant testified that her symptoms persist. In this regard, she stated that she continues to experience hoarseness and throat soreness. Claimant testified that Dr. Young recommends annual examinations to monitor her throat injury.
The medical evidence included a chart note prepared by Dr. William C. Young on February 4, 1999. Following the performance of a "flexible fiberoptic examination," he diagnosed "vocal nodules." Dr. Young also noted that claimant's gag reflex was hyperactive. In a letter dated June 16, 2000, Dr. Young stated that: "It is my impression that her voice disorder is a direct result of her work."
Claimant returned to Dr. Young's office on June 16, 2000. Due to the persistence of her complaints, he recommended an evaluation by Dr. Neal S. Beckford. The record reflected that Dr. Beckford's specialty is otolaryngology. He examined claimant on July 13, 2000, noting that she presented with a history of "vocal fold nodules." Dr. Beckford offered the following impression: "Voice use dysphonia with resolved vocal nodules. Agree with referring physician's recommendation that a course of speech/voice therapy would be beneficial for the patient." Dr. Beckford consulted Dr. Joel C. Kahane, Speech-Voice Pathologist, and he agreed to furnish voice therapy.
A medical report authored by Dr. Joel C. Kahane on July 13, 2000, contains a section identified as "Breath Support" which stated:
. . . There is evidence of the tendency to speak at a rapid rate and not use appropriate breath-grouping strategies. Thus, in conversation the patient often speaks until she runs out of air, experiencing increased muscle tension in the neck and abdominal regions.
Dr. Kahane referred to claimant's difficulties as "hyperfunctional dysphonia with deficient breath support and vocal tract resonance." He agreed that claimant should undertake a course of voice therapy in order to correct her vocal deficits.
On October 6, 2000, Dr. Young restated his causation opinion:
[Claimant] is a volleyball coach. In her profession as a coach, she must talk and often times yell in a noisy environment. This is habitual abuse of the larynx creating excessive tension and force on the vocal cords which result in chronic vocal nodules. A normal person speaking in a normal voice will not develop vocal nodules.
The vocal nodules are a direct result of her repetitive loud talking and yelling that is required in her profession as a coach. This is an occupational induced laryngeal problem that unfortunately has resulted in chronic hoarseness in [claimant].
Previous court opinions have considered the rapid repetitive motion requirement. For example, in Malone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W.2d 644 (1998), the Supreme Court formulated a test for analyzing whether an injury is caused by rapid repetitive motion. The court stated:
. . . [T]he standard is a two-prong test: (1) the tasks must be repetitive, and (2) the repetitive motion must be rapid. As a threshold issue, the tasks 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.
Malone, 333 Ark. at 350, 969 S.W.2d at 647.
In High Capacity Products v. Moore, 61 Ark. App. 1, 962, S.W.2d 831 (1998), claimant used an airgun to assemble blocks. This task entailed attaching two nuts to each block with an air gun. Every fifteen seconds, claimant used the gun to attach a nut. Holding that claimant met her burden of proof, the Court of Appeals characterized this evidence as ". . . the most compelling case demonstrating rapid repetitive motion presented to this court to date."
The resolution of this case turns on whether claimant proved that her voice disorder was caused by rapid repetitive motion. Clearly, no prior cases parallel the facts with which we are confronted herein. The administrative law judge noted the difficulty of quantifying vocalizations per minute, concluding that the absence of this evidence was fatal to claimant's claim. This rationale is embraced by the dissent. We disagree with the administrative law judge's interpretation of the rapid repetitive motion requirement. The fallacy of her analysis is that it failed to focus on the mechanics of speech. According to The Cambridge International Dictionary of English "the vocal cords are a pair of folds at the upper end of the throat whose edges move quickly backwards and forwards and produce sound when air from the lungs moves over them."
Claimant testified credibly with respect to the time she spent coaching games, conducting practice, running summer volleyball camps, and teaching physical education classes. She stated that she is ". . . a very aggressive, voiceful coach." Claimant indicated that she is quite animated during matches. She testified that she yells instructions from the sideline throughout games. Claimant stated that her approach to practices is identical. She offered testimony with respect to the demands placed on her voice as a coach and teacher. In this regard, she stated that she frequently raised her voice in order to be heard as well as for emphasis.
The medical evidence supports claimant's claim for benefits. Dr. Young indicated that claimant developed vocal cord nodules because of ". . . her repetitive loud talking and yelling . . ." He noted that speaking in a normal voice will not produce vocal cord nodules. Moreover, Dr. Young characterized the manner in which claimant used her voice as "habitual abuse." Also, Dr. Kahane observed that claimant tended to speak rapidly.
We specifically find that a preponderance of the credible evidence supports a finding that claimant's vocal injury was caused by rapid repetitive motion. In her capacity as a coach and a teacher, claimant used her voice as a tool. As a result, she developed nodules on her vocal cords. In reaching our decision, we have considered claimant's testimony regarding her duties, and the medical evidence. We have also considered that by definition, speech requires rapid repetitive motion. Finally, we note that speech entails a greater degree of rapidity than involved in Moore. We further find that claimant has proved all remaining statutory elements.
Claimant seeks an award of medical benefits. Ark. Code Ann. § 11-9-508 (Repl. 1996) prescribes that respondents must furnish all medical treatment which is reasonably necessary for the treatment of a compensable injury. Determining what constitutes reasonably necessary treatment is a fact question for our resolution. Gansky v, Hi-Tech Eng'g, 325 Ark. 163, 924 S.W.2d 790 (1996).
The evidence showed that claimant remained symptomatic after the 1998 volleyball season concluded. Complaining of hoarseness, she sought medical treatment on February 4, 1999. In an effort to gain approval for a microphone, claimant consulted the company physician in August of 1999. Her difficulties persisted, and Dr. Young referred claimant to Dr. Beckford for an evaluation. He prescribed voice therapy. Dr. Kahane identified several deficits requiring correction. We find that the treatment rendered was reasonably necessary for the treatment of claimant's vocal injury. Moreover, we find that respondents are liable for all reasonably necessary medical treatment, including voice therapy.
Based on our de novo review of the record, and for the foregoing reasons, we specifically find that claimant sustained a gradual onset injury for which she is entitled to receive medical benefits. The decision of the administrative law judge is reversed. 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. § 11-8-809 (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 rapid repetitive motion issue presented in this case.
As the principal opinion notes, 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, human speech requires vibration of the vocal cords at a rate per second far too great to determine through either human hearing or by touching directly on the larynx. Obviously, if the vocal cords vibrated only once every fifteen seconds, a rate which the Courts found "most compelling" in Moore, human speech as we know it would be impossible. Moreover, even rudimentary calculations indicate that during speech the human vocal cords vibrate at rates many, many times greater than the rate of the "rapid" movements at issue in Moore and Hapney, and at a tremendously greater rate than the rate of the "rapid" movements at issue in Boyd. In short, if activities performed several times per minute are "rapid," then repetitive vocal cord vibrations occurring many times per second must also be "rapid," as the Arkansas Courts have construed that term in Moore, Hapney, Boyd, and similar cases. I therefore agree that human speech requires rapid repetitive use of the vocal cords.
The dissenting opinion seems to suggest that the critical question to decide is the rate at which the claimant performed "vocalizations." The dissent seems to suggest that we should count the number of times per minute the claimant's jaw moves when she speaks. Is she a fast talker or a slow talker? For the following reasons, I disagree with this proposed line of analysis on deciding the rapid repetitive motion issue. The claimant sustained an injury to her vocal cords, not to her tongue or to the joints in her jaw. Further, it was clearly the operation of the vocal cords, and not operation of the jaw or the tongue, which caused the claimant to develop nodules on her vocal cords. Therefore, the critical legal and factual question is whether the claimant's vocal cords engaged in rapid repetitive motion, not whether her jaw or tongue engaged in rapid repetitive motion when she developed vocal cord nodules due to harmful yelling activity in her job as a coach.
The dissenting opinion also seems to predict that we are opening a floodgate of litigation of voice injury cases with a finding that human speech, by its very operation, requires rapid repetitive motion of the vocal cords. I disagree. To my recollection, this is the only "voice" injury claim we have seen at the Full Commission during my term. Further, the difficulty in proving a voice injury claim is not in proving that speech requires rapid repetitive motion of the vocal cords. Instead, the difficulty would seem to be in proving that work-related speech caused any identified vocal cord abnormalities. Using the dissent's example, obviously any employee who spoke only five sentences a day at work using a normal tone of voice would have an impossible task persuading either Dr. Young or this Commission that work-related speech caused any vocal cord injury. Moreover, as with carpal tunnel syndrome injuries, I am confident Act 796 provides adequate safeguards to protect employers from feigned claims for work-related gradual onset voice injuries. Accord Kildow v. Baldwin Piano Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).
In the present case, the claimant's work-related yelling is well documented in the record and in the principal opinion, as is Dr. Young's highly credible opinion that the claimant's vocal cord nodules were caused by her work-related yelling. The respondents have presented no credible evidence to seriously contend that the claimant's work-related yelling did not cause her vocal cord nodules, or that her work-related injury is not the major cause of her need for treatment at issue. We have opened no floodgates in this case.
For all of the foregoing reasons, I concur.
_______________________________ ELDON F. COFFMAN, Chairman
Commissioner Wilson dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion's reversal of the decision of the Administrative Law Judge. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof that she sustained a gradual onset injury caused by rapid repetitive motion.
While the claimant made a effort to quantify her use of her voice during the course of a school year, I agree with the Administrative Law Judge that her testimony was insufficient to meet the rapid repetitive requirement of Arkansas Code Annotated § 11-9-102(4)(A)(ii)(a) (Supp. 2001). The Administrative Law Judge reached this conclusion even after viewing a video tape of the claimant coaching a volleyball game, and her impressions in this regard deserve consideration. The Administrative Law Judge further noted that, "[t]he cases that survive the rapid repetitive requirement of the statute include detailed data as to the number of movements of the job performed or the of the body part used." The claimant did not meet this level of quantification in her testimony and it is my opinion that the record does not contain a preponderance of the evidence showing that the claimant's activities were repetitive and rapid.
The concurring opinion suggests that the claimant met her burden of proof with regard to the rapid repetitive requirement because of the rate at which her vocal cords vibrated. I do not disagree that during even normal speech, a person's vocal cords vibrate at a rate greater than the rate of the movements previously recognized by the courts as rapid. However, I cannot agree that vocal cord vibration should be the movement that is examined when reviewing voice injuries. If it were, all voice injuries would meet this requirement. For whether a claimant shouted or spoke in a normal tone, and whether a claimant spoke five sentences a day an hour apart or five hundred sentences in continuous stream, his or her vocal cords would vibrate at such a rate as to amount to "rapid repetitive" when compared to other functions recognized previously as being rapid.
It is my opinion that the figures which must be examined when reviewing voice injuries are the number of vocalizations made, and the rate and volume at which they were made, and not the number of vibrations of the vocal cords. Therefore, I respectfully dissent from the majority opinion.
_______________________________ MIKE WILSON, Commissioner