CLAIM NO. E515768

CONNIE AINSWORTH, EMPLOYEE, CLAIMANT v. ALUMAX, EMPLOYER, RESPONDENT and CRAWFORD COMPANY, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
AMENDED SUBSTITUTED ORDER FILED APRIL 28, 1998

Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.

Claimant represented by GREGORY R. GILES, Attorney at Law, Texarkana, Arkansas.

Respondent represented by ROBERT D. TRAMMEL, Attorney at Law, Little Rock, Arkansas.

[1] AMENDED SUBSTITUTED ORDER
[2] Upon motion of the Full Commission, we hereby issue this Amended and Substituted Order to correct respondent’s name as it appears in the case style. All other aspects of the original opinion remain unchanged.

[3] This matter is before the Commission on remand from the Court of Appeals. In its opinion filed December 17, 1997, the Court stated” . . . we are compelled to remand this case to the Commission so that it may reconsider the facts of this case in light of our decision in Baysinger.” In Baysinger v. Air Systems, Inc., 55 Ark. App. 174, 934 S.W.2d 230 (1996), the Arkansas Court of Appeals held that the Commission’s definition of repetitive, “the exact or almost exactly, the same movement again and again” was too restrictive an interpretation of the word repetitive and further held that multiple tasks should be considered together when determining whether the requirements of repetitive motion have been met. After reviewing the record impartially, without giving the benefit of the doubt to either party, we find that claimant has failed to prove by a preponderance of the evidence that her job duties consisted of rapid repetitive motion and has therefore failed to meet her burden of proof.

[4] In our original opinion filed February 21, 1997, we affirmed and adopted the findings of the Administrative Law Judge. In the Administrative Law Judge’s opinion, the Administrative Law Judge found:

In the instant case, there is insufficient proof to establish that the claimant’s job entailed activities constituted `rapid repetitive motion’ to satisfy the terms of the Workers’ Compensation Act, or the decision of the Commission in Throckmorton. Specifically, the claimant has failed to prove that even taking Mr. Curry’s assessment of 60 (sic) to 60 hammer strokes per 8 hour shift, her hammering was neither `rapid’ or `repetitive.’ Hammering was not the primary job function and her job involves significant periods of rest between each set of hammering, if hammering was even done on any particular day.

[5] In reversing our decision, the Court relied solely upon its decision in Baysinger which requires that multiple tasks be considered together when determining whether one’s job duties satisfied the repetitive aspect of the statute. The Court did not address whether claimant’s activities satisfy the definition of rapid. After reviewing the record, we find that claimant failed to prove that her duties as a buffer’s helper required “rapid repetitive motion” of her right arm. Therefore, we find that claimant failed to prove by a greater weight of the credible evidence that respondent is liable for claimant’s condition. In this regard, the evidence reveals that claimant was unable to testify how often she was required to actually hammer in any given day. Claimant presented evidence from a co-worker, Earnest Curry. Mr. Curry testified that in claimant’s job as a buffer’s helper her primary job duty was of placing metal in stops to be buffed. Mr. Curry testified that on average the stops may have to be changed two to three times per day for which would amount to a total of 50 to 60 hammer strokes per day. Mr. Curry also testified that claimant would implement twice as many hammer strokes as he required for a total of 100 to 120 hammer strokes per day. Finally, Mr. Curry testified that there may be days when the stops would not have to be changed or on rare occasions the stops may have to be changed 5 to 6 times per day.

[6] We do not perceive that claimant’s manner of hammering was rapid or repetitive as that term has been interpreted by the Arkansas Court of Appeals. The facts in this case are distinguishable from the facts in Lilly Kildow v. Baldwin Pianoand Organ, 58 Ark. App. 194, 948 S.W.2d 100 (1997) in which the Court placed significant weight on the fact that the claimant worked on an assembly line. Claimant in this case is not an assembly line worker. Rather, she is a buffer’s helper who is required to place metal in stops so that the metal may then be run through a buffer. Hammering is not the primary job function of the buffer’s helper. Hammering is merely required when a new metal size has to be run and the stops need changing. While the hammering to change the stops may require repetitive strokes occasionally throughout the work day, we cannot find that claimant has proven by a preponderance of the evidence that the rate of repetition required to perform the hammering amounts to rapid movement. In Kildow, supra, the Court applied the ordinary common sense definition to the term “rapid” to mean “swift or quick”. Claimant in the present case offered testimony that she was required to hammer sporadically throughout the day; however, claimant failed to offer any specific testimony regarding the actual rapidity required of her right upper extremity.

[7] In our opinion, this case is more akin to the facts inMichael Lay v. United Parcel Services, 58 Ark. App. 35, 944 S.W.2d 867 (1997). In Lay, supra, the Court of Appeals concluded “that motions . . . separated by periods of several minutes or more, do not constitute rapid repetitive motion under the meaning of Ark. Code Ann. § 11-9-102(5)(A)(ii)(a).” Analyzing this case under the Court’s holdings in Kildow and Lay, we find that claimant has failed to prove that her movements and motions required to hammer sporadically throughout the day meet the requirement of rapid repetitive motion. In our opinion, 100 to 120 hammer strokes throughout an 8 hour shift is not evidence of swift or quick motion, nor does it preponderate in favor of finding that claimant’s hammer strokes are marked by a notably high rate of motion. Movement, regardless of its repetitiveness, does not rise to the level of rapid repetitive motion as contemplated by the drafters of Act 796 when the movements are separated by several periods of delay or hesitation. Id.

[8] Finally, to the extent that the dissent asserts that “both the administrative law judge and the majority have erred in considering this claim to be one involving a gradual injury based on rapid, repetitive motion”, we point out the following directive to the Commission in the Court of Appeals’ December 17, 1997, decision remanding this case to the Full Commission.

Appellant appealed this decision to the Workers’ Compensation Commission, which affirmed and adopted the findings of the Administrative Law Judge. We reverse and remand so that the Commission can reconsider the case in light of our recent decisions involving claims based on injuries attributed to rapid repetitive motion.

[9] To the extent that the dissent asserts that “the facts of this case place it properly within the ambit of Ark. Code Ann. §11-9-102(5)(A)(i) (Supp. 1997)” (i.e., the “specific incident” statute), we understand the Court’s December 17, 1997, decision as having addressed and decided that issue.

[10] In addition, we do not understand that portion of the Court’s decision quoted above as giving the Commission the authority to revisit the “specific incident” issue in the manner suggested by the dissent.

[11] Accordingly, we find that claimant has failed to prove by a preponderance of the evidence that her job duties consisted of rapid repetitive motion. We find that claimant has failed to meet her burden of proof of establishing a compensable gradual onset injury.

[12] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[13] Commissioner Humphrey dissents.

[14] DISSENTING OPINION
[15] I must respectfully dissent from the majority opinion, for I am persuaded that both the Administrative Law Judge and the majority have erred in considering this claim to be one involving a gradual injury based on rapid, repetitive motion. In my opinion, the facts of this case place it properly within the ambit of Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1997).

[16] Respondents rely on certain portions of claimant’s testimony which admittedly seem to indicate that no single specific incident produced her injury on May 17, 1995. For instance, during direct examination, claimant testified that “there was no specific time that we done a setup. I mean, I don’t know what time in the morning that it was, but it was just sometime after picking up the hammer and starting to hammer that it hurt that day.” (Emphasis added.) Also, upon cross-examination, the following exchange took place:

Q. And you didn’t remember any one incident on Tuesday or Wednesday or Thursday or Friday where all of a sudden you just said, “I’ve got something wrong with my arm as a result of what just happened there,” is that right?
A. That’s right. The more I hammered, the more it hurt.

Q. And the less you hammered, the less it hurt?

A. Well, it hurt but not as severe as it did hammering.

[17] Other aspects of claimant’s testimony, however, suggest that she understood the foregoing comments as relating to th precise temporal aspect of her injury:

Q. As I understand it, on that Wednesday, May the 17th of `95, you don’t recall a specific “I hit the hammer that specific time and I felt immediate pain,” is that true?
A. Yes. That day, you know, I can’t pinpoint what time during the day it was, but when I picked up the hammer and come down with it and hit the nail, well, it was just kind of a pain that went all kind of from middle ways of my arm up past my elbow.
Q. Do you recall on that day feeling any pain in your arm or elbow until you started using the hammer in the setups?

A. No, I did not. (Emphasis added.)

[18] In other words, while claimant has clearly denied that she can recall the precise time of day her injury occurred, she has sufficiently described an onset of pain precipitated by the act of hammering a nail on May 17, 1995. Furthermore, earlier during the hearing, claimant succinctly recounted that “On May the 17th, we were hammering, and after I had started hammering, I noticed some pain in my arm, and it was just, you know, hurting like a cramp or something, and then, as I continued to hammer that day, the pain started getting worse.” I would find that claimant’s testimony, viewed in its entirety, adequately establishes that she suffered a work-related injury due to a specific incident identifiable by time and place of occurrence. Accordingly, I believe this claim is more properly analyzed as a “specific incident” type of injury, and must respectfully dissent from the majority’s analysis and findings to the contrary.

[19] Finally, while I understand and appreciate the majority’s comments regarding the proper scope of this review, I have simply reinterated herein my previous (e.g., pre-remand) belief that this claim should have been analyzed as a specific incident injury from the beginning.

[20] PAT WEST HUMPHREY, Commissioner