Opinion
CLAIM NO. E904294
OPINION FILED JULY 13, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JIM KING, Attorney at Law, Pocahontas, Arkansas.
Respondent represented by the HONORABLE RICHARD LUSBY, Attorney at Law, Jonesboro, Arkansas.
Decision of administrative law judge: Affirmed.
OPINION AND ORDER
The claimant appeals to the Full Workers' Compensation Commission an administrative law judge's order and opinion filed January 14, 2000. The administrative law judge found that the claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury as the result of a specific incident identified by time and place of occurrence. The administrative law judge also found that the claimant failed to prove that she sustained a gradual-onset injury caused by rapid repetitive motion. After de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge.
I. HISTORY
Georgetta Virgin, age 38, stated that she went to work for Darling Industries on or about April 4, 1999. The parties stipulated that there was an employer-employee relationship on April 20, 1999; the claimant contended that she sustained a compensable injury on that date. Ms. Virgin said she was operating a "two person notcher machine." She testified:
Q. Now, can you describe what happened when this injury occurred?
A. I felt like I had got a crick in my neck. And it just kept hurting.
Q. About what time of night did that occur?
A. It was around 11:30, something like that.
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Q. And what sort of movement did you have to perform to feed that into that machine?
A. Well, you're standing in front of the machine, and I would turn my head and my arms to the side (demonstrating). The shelves are at the side. (Demonstrating). I would turn to pick up the shelf, put it in front of me, put it in the machine and hold my hand down on two buttons. And then it would do it. Then I would pick it up, put it back through the machine, turn around again and pick a piece up and do it again.
***
Q. And while you were performing that function and turning to your left and turning back, is that when this occurred?
A. Yes.
Q. And was it, did it take a while for it to start hurting or did it start all at once?
A. No, we were, I was on the machine for probably a couple of hours before, that it started hurting.
Q. Okay. Can you describe what sort of pain that you had?
A. It felt like a crick in my neck and just pain in my shoulder, like when you sleep wrong and you wake up and it's hard to move your neck.Joint Exhibit Two of the record purports to demonstrate use of the notcher machine on videotape. An employee, not the claimant, is shown operating a large industrial press machine. The employee uses his upper extremities to place thin metal plates into the apparatus. The employee's work pace is deliberate, placing approximately six metal plates a minute into the press. Some turning of the upper body is required. The claimant had reviewed the videotape. "The shelves that we were doing that night were longer," she testified, "and we were doing them a lot faster than it showed on the tape."
The claimant agreed on cross-examination that her alleged injury was more "gradual-onset" than "specific incident." The claimant complained to two co-workers at break that her shoulder and neck hurt, but she did not mention the alleged injury. Nor did she report it to a supervisor. The claimant testified that she felt she just had a "crick" in her neck, "And because I was a new employee and wanted to keep the job."
Ms. Virgin presented to Dr. Jamshed Agha, Northeast Arkansas Clinic, on April 21, 1999:
This 37 y/o white female comes in complaining of neck pain that has been going off and on for the last 4 days. The pain radiates to the left shoulder. There is no complaint of any numbness. She has been taking some muscle relaxant that she has had, but it does not seem to be helping. The pain is worse on movement of the neck in any direction.
Dr. Agha assessed "probably musculoskeletal strain" and treated the claimant conservatively.
The claimant returned to Northeast Arkansas Clinic on April 23, 1999 with pain in her left shoulder and neck and was seen by Dr. G. Randall Guntharp. Dr. Guntharp observed "a lot of tightness and she is having some muscle spasm. I tried to do some manipulation to her upper thoracic area but she was having severe muscle spasms." The comment from a CT of the cervical spine taken April 25, 1999 was "Degenerative disc protrusion at C5-6, predominantly left sided." An x-ray of the left shoulder on April 26, 1999 showed "No evidence of fracture, dislocation or other bony abnormality."
A neurosurgeon, Dr. Kenneth Tonymon, saw the claimant on May 26, 1999:
Her symptoms started acutely on 4/20/99 at work and she developed first stiffness into the left side of her neck into the trapezius and suprascapular region. She has continued to worsen. Last week she had onset of numbness in the left, ring and middle fingers while doing some telemarketing and holding the phone in the left hand which has probably resulted in ulnar nerve stretch across the elbow. . . . I think Ms. Virgin has an acute C5 radiculopathy and should be imaged with a cervical MRI. If this MRI is negative for disc herniation at C4-5, then she should be considered to have a brachial plexitis affecting the upper trunk. I will see her after her MRI scan to make therapeutic recommendations.
The following findings resulted from an MRI of the cervical spine taken May 27, 1999:
C4-C5: There is a large central broad-based disc protrusion/osteophyte complex that is effacing the thecal sac anteriorly and slightly to the left. There is also deformation of the cord on the left. Mild left neuroforaminal compromise is appreciated. Posterolateral osteophyte is identified within the right lateral recess causing a moderate right neuroforaminal compromise. C5-C6: There is a moderate-size central broad-based disc protrusion/osteophyte complex that is deforming the cord anteriorly. This disc is slightly prominent to the left and is causing moderate to severe left neuroforaminal compromise with only a mild right neuroforaminal compromise. Moderate spinal canal stenosis is present. C6-C7: Large central disc protrusion is present that is deforming the cord anteriorly. Mild bilateral neuroforaminal compromise as well as moderate spinal canal stenosis are appreciated. . . .
CONCLUSION:
1. Disc protrusions from C4-C5 through C6-C7 with effacement of the cord and neuroforaminal compromise on the left as described above.
2. Other spondylitic changes as described.
Ms. Virgin testified that Dr. Tonymon performed surgery on June 29, 1999, a double discectomy and fusion.
The claimant contended that she sustained a compensable injury to her neck as the result of a "specific event" while working for Darling Industries on April 20, 1999. The claimant contended that she was entitled to a period of temporary total disability compensation, medical treatment, permanent impairment, and wage-loss disability. The respondents contended that the claimant did not sustain an injury arising out of and in the course of her employment. Alternatively, if she was injured, that it was a gradual-onset injury and would not be compensable as the major cause of her disability, impairment, or need for treatment. The respondents asserted that the alleged injury "was not anything that occurred on the job but was a pre-existing condition."
The respondents deposed Dr. Tonymon on October 25, 1999. Upon performing surgery, Dr. Tonymon testified, he discovered that Ms. Virgin had "a fresh disc herniation" at C4-5. Dr. Tonymon stated that "this lady had problems in her neck before she acutely injured herself and that the acute onset of symptoms, in other words rapid onset of symptoms as opposed to slowly progressive onset of symptoms, is more consistent with the fresh herniation that was found between the 4th and 5th neck bones." Dr. Tonymon opined that surgery was made necessary by this acute herniation at C4-5. Counsel asked Dr. Tonymon to opine regarding the etiology of the claimant's disc herniation. He testified:
I really can't tell you without knowledge of the biomechanics of her job. . . . If I had a job description where the patient was required to look down and then rotate her head one way or the other, that type of repetitive activity is much more likely to produce a ruptured disc than just someone who is looking straight forward and then just moving to and fro to their assembly line type of work. I think that if it could be shown biomechanically she was required to look down and then rotate her head one way or the other that would make me give more credence to the — I don't give less to the degenerative process and more to on the job type of injury.
After a hearing before the Commission, the administrative law judge determined that the claimant's testimony "does not correspond" to her contention that she sustained a neck injury as the result of a specific incident identifiable by time and place of occurrence. "In fact, she testified that after working on the particular machine for some three hours, she began experiencing pain in her neck and shoulder. . . . I find that the claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury as the result of a specific incident identifiable by time and place."
The administrative law judge discussed the statutory elements of a "gradual onset" injury caused by "rapid repetitive motion." The administrative law judge found that the claimant failed to prove that the alleged injury was the result of rapid repetitive motion:
The standard two-prong test for determining whether work activities involve rapid repetitive motion is (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. The videotape reveals that the claimant's tasks were repetitive; however, the tape does not reveal that the work was performed rapidly. . . . Further, there were no specifics presented relating to volume of production per day. After considering all the credible evidence, I find that the claimant has failed to satisfy the requirements to establish a compensable injury caused by rapid repetitive motion.
The administrative law judge also determined that the medical evidence did not show that the injury was the major cause of the claimant's disability or need for treatment. Therefore, the administrative law judge denied and dismissed the claim for benefits; claimant appeals to the Full Commission.
II. ADJUDICATION
A. Specific Incident Injury
The claimant contends on appeal to the Full Commission that she is entitled to benefits for "a specific injury" occurring on April 20 or April 21, 1999. A claimant has the burden of proving the compensability of her claim by a preponderance of the evidence. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). An accidental injury is caused by a specific incident, identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 1999). For an accidental injury to be compensable, the claimant must show that she sustained an accidental injury; that it caused internal or external physical injury to the body; that the injury arose out of and in the course of employment; and that the injury required medical services or resulted in disability or death. Id. Additionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). "Objective findings" are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). The requirement that a compensable injury be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).
In the present matter, the Full Commission finds from a preponderance of the evidence that the claimant did not sustain a specific-incident injury on April 20 or April 21, 1999. The claimant testified that she felt "a crick in my neck" at an unspecified time while operating the "notcher machine" on April 20, 1999. The claimant testified, however, that her symptoms were "gradual" in nature, rather than as the result of sudden trauma. The claimant did not report the alleged accidental injury to her employer. When the claimant presented to Dr. Agha on April 21, 1999, she complained of neck pain "going off and on for the last 4 days." There was no reference to work-relatedness of the claimant's symptoms. Therefore, we find that the claimant failed to prove that she sustained an accidental injury which arose out of and in the course of her employment. See, Hapney v. Rheem Manufacturing Company, 67 Ark. App. 8, 992 S.W.2d 151 (1999), reversed on other grounds, Hapney v. Rheem Manufacturing Company, ___ Ark. ___, ___ S.W.3d ___ (2000). The Full Commission affirms the administrative law judge's finding that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury as the result of a specific incident identified by time and place of occurrence.
B. Gradual Onset Injury
The requirements to establish a "gradual-onset" injury pursuant to Act 796 of 1993 are codified at Ark. Code Ann. § 11-9-102(4) (Supp. 1999) et seq:
(A) "Compensable injury" means:
(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(a) Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as a compensable injury falling within this definition:
(b) A back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence. . .
(E)(ii) For injuries falling within the definition of compensable injury under subdivision (4)(A)(ii) of this section, the burden of proof shall be by a preponderance of the evidence, and the resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment.
An employee must establish the compensability of her claim with medical evidence, supported by objective findings. Patterson v. Frito Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999).
1. Rapid repetitive motion injury
The administrative law judge found that the instant claimant failed to prove that she sustained a gradual-onset injury caused by rapid repetitive motion. But even if her duties were rapid and repetitive, the administrative law judge determined, the claimant did not sustain an injury arising out of and in the course of her employment with the respondents. The first treating physician reported "neck pain going off and on for the last 4 days" before the alleged injury date, and he did not attribute the claimant's symptoms to her work. A couple of days later, another doctor detected spasm in the claimant's thoracic area, not her neck. A CT of the cervical spine showed a degenerative disc protrusion at C5-6. After she got to the operating neurosurgeon, Dr. Tonymon, an MRI basically showed multilevel cervical degeneration. Dr. Tonymon was not certain regarding the etiology of the "fresh herniation" which he observed during the cervical fusion. The administrative law judge noted:
While Dr. Tonymon found a fresh disc herniation at C4-5, he also noted that the claimant had multiple level degenerative processes going on and this could not be eliminated as one of the factors in the fresh herniation. When questioned about the percentage weight to be given the claimant's degenerative processes, Dr. Tonymon expressed difficulty responding and stated,
"I guess perhaps as much as 50 percent. . . ." While the medical evidence certainly reveals the claimant had legitimate cervical problems, the major cause element required by Ark. Code Ann. § 11-9-102(14)(A) has not been established.
The Full Commission affirms the administrative law judge's finding that the claimant failed to prove that her alleged cervical injury was caused by rapid repetitive motion. The record indicates, at most, that the claimant's work entailed repetitive movement of her upper extremities. There is no evidence of record regarding the volume of the claimant's work, nor is there any evidence regarding the position of the claimant's neck or cervical spine during her employment duties. The Full Commission therefore finds that the claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury as the result of rapid repetitive motion. See, Rodman v. ACX Techologies, Full Worker's Compensation Commission, July 8, 1999 ( E804579).
2. Gradual onset back injury
The so-called "gradual-onset exception" for back injuries under Act 796 of 1993 encompasses injuries to the cervical spine.Hapney v. Rheem Manufacturing Company, ___ Ark. ___, ___ S.W.3d ___ (2000). As detailed supra, in order to establish a compensable gradual-onset injury, an employee must prove by a preponderance of the evidence that she sustained an injury arising out of and in the course of her employment, which caused internal or external physical harm to the body. In addition, the claimant must prove that the alleged injury is the major cause of her disability or need for treatment. Ark. Code Ann. § 11-9-102(4)(E)(ii). "Major cause" means more than fifty percent (50%) of the cause. Ark. Code Ann. § 11-9-102(14)(A).
The Full Commission finds that the claimant has failed to prove that she sustained an injury arising out of and in the course of her employment under any Act 796 theory of compensation. We again note that the first treating physician the day after the alleged injury reported that the claimant had experienced pain occurring four days previously, and the claimant's symptoms were not attributed to her work for the respondents. The claimant's treating surgeon, Dr. Tonymon, was unable to opine that her alleged injury was the major cause of her disability or need for treatment. The Full Commission finds from a preponderance of evidence that the alleged compensable injury was not the major cause of the claimant's disability or need for treatment. The decision of the administrative law judge is affirmed.
Based on our de novo review of the entire record, the Full Commission finds that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury as the result of a specific incident identifiable by time and place of occurrence. The Full Commission also finds that the claimant failed to prove by a preponderance of the evidence that she sustained an injury as the result of rapid repetitive motion, and that the claimant failed to prove that she sustained a "gradual-onset" injury to her neck. We therefore affirm the order and opinion of the administrative law judge. This claim is denied and dismissed.
IT IS SO ORDERED.
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MIKE WILSON, Commissioner
Commissioner Humphrey dissents.