Opinion
CLAIM NO. E505713
OPINION FILED JULY 16, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by TOM THOMPSON, Attorney at Law, Batesville, Arkansas.
Respondent represented by RICHARD LUSBY, Attorney at Law, Jonesboro, Arkansas.
OPINION AND ORDER
[2] This matter is currently before the Commission on remand from the Arkansas Court of Appeals. In its opinion filed January 28, 1998, the Court stated:
Because the Commission should apply our decisions to test for rapid motion, this case is reversed and remanded for it's further consideration. Baysinger is sufficiently analogous to lend support for this disposition. There, we decided that the Commission's interpretation of section 11-9-102(5)(ii)(a) was `too restrictive.' Baysinger, 55 Ark. App. at 176, 934, S.W.2d at 230. We reversed and remanded to the Commission `for a new determination on the issue of appellant's meeting his burden of proof.' Id. Likewise, in this instance it would be appropriate for the Commission to apply Lay and Kildow to the record before it, and to make findings of fact and rule accordingly. See Ark. Code Ann. § 11-9-704(b).
The Court also stated:
Finally, it is appropriate to repeat an observation previously made by Judge Cooper. `We think it apparent that the Commission is making every effort to comply with the legislative mandate, a difficult task that requires that a fine balance be struck between the legislature's prohibition against broadening the scope of the workers' compensation statutes and the legislature's express statement that the controlling purpose of workers' compensation is to pay benefits to all legitimately injured workers.' Daniel v. Firestone Bldg. Products, 57 Ark. App. 123, 124, 942 S.W.2d 277, 278 (1997). Notwithstanding our disagreement in this instance, we continue to acknowledge the Commission's efforts.
The claimant has been an employee of the respondent employer at its Cave City Facility since 1990. The respondent employer manufactures uniform shirts. The claimant developed problems with her left knee in February and March of 1995. At the time, she was operating a pocket setting machine which required her to stand and use her right foot to push a pedal that operated the machine. The claimant's left knee was extended, then flexed as the claimant stepped forward with her right foot to press the pedal and then she stepped back. The claimant ultimately came under the care of Dr. J.D. Allen, an orthopaedic surgeon. Dr. Allen diagnosed the claimant with patella femoral pain, otherwise known as chondromalacia. The claimant underwent an arthroscopic procedure and it was determined that physical therapy was the best course of treatment for her. The claimant continues to be employed by the respondent employer.
The claimant's injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Ark. Code Ann. § 11-9-102 as amended by 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 Act 796. Jerry D. Reed v. ConAgra Frozen Foods, FC 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 rapid repetitive motion injury. Consequently, in order to prevail on a rapid, repetitive motion claim, a 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 their 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). A 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 a claimant must 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., FC 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 our opinion, a review of the evidence indicates that claimant failed to prove by a preponderance of the credible evidence that she sustained a compensable rapid repetitive motion injury.
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, 58 Ark. App. 194, 948 S.W.2d 100 (1997); High Capacity Products v. Moore, 61 Ark. App. 1, ___ S.W.2d ___ (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").
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 ___ (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. 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 7.
Our review of the evidence indicates that the claimant cannot prove by a preponderance of the evidence that her job duties required rapid and repetitive motion. Although the motion that the claimant was involved in was repetitive and albeit steady, it was not "swift and quick" as rapid is defined in Kildow. The claimant's testimony indicated that she rocked back and forth, at most, no more than six times per minute. This is not, in our opinion, sufficiently rapid to satisfy the statutory requirement.
In addition, the claimant has failed to show that she has met the major cause requirement as well. Dr. Allen, the claimant's treating physician, acknowledged in his deposition that it was not uncommon for people to develop chondromalacia into their late 20's or early 30's. The arthroscopic procedure that Dr. Allen performed disclosed only a moderate degree of chondromalacia in the claimant's knee. Further, Dr. Allen characterized his opinion regarding the major cause as being just a hunch and speculative. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).
Therefore, after reviewing all the evidence, we find that the claimant has failed to prove by a preponderance of the evidence that she sustained an injury as a result of rapid and repetitive motion. Accordingly, we deny the claimant's claim for benefits and affirm our previous decision.
IT IS SO ORDERED.
Commissioner Humphrey dissents.