BAKER v. CHEYENNE INDUSTRIES, 1998 AWCC 115

CLAIM NO. E615082

PATRICIA BAKER, EMPLOYEE, CLAIMANT v. CHEYENNE INDUSTRIES, EMPLOYER, RESPONDENT, WAUSAU INSURANCE CO., CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 18, 1998

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

Claimant represented by the HONORABLE PHILLIP M. WILSON, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE MICHAEL RYBURN, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed

[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on July 23, 1997. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury on September 4, 1996. After conducting a denovo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that her right side carpal tunnel syndrome injury was caused by rapid repetitive motion. Therefore, we find that the decision of the administrative law judge must be affirmed. [3] On direct examination, the claimant testified that she became employed by the respondent on June 25, 1995, to build lamps. The claimant testified that she reported problems with her right wrist which had developed a week or two prior to her report in September of 1996 of an alleged work-related problem with her right wrist. The claimant testified that she had not experienced any problems before working with the respondent. However, on cross-examination, the claimant acknowledged that she had previously experienced right wrist problems during a period in 1992, when she was previously employed by the respondent. The claimant further testified that her condition had continued after 1992. At that point in the hearing, the claimant’s attorney asserted that the claimant had either experienced a new injury in 1996, or an aggravation of a pre-existing condition. [4] Since the claimant asserts that she sustained either a new carpal tunnel syndrome injury in 1996, or an aggravation of a pre-existing injury in 1996 of a condition which existed in 1992, the present claim is governed by the provisions of the Arkansas Workers’ Compensation Laws as amended by Act 796 of 1993. SeeAtkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897
(1996); City of Fouke v. Buttrum, 59 Ark. App. ___, ___ S.W.2d ___ (December 3, 1997). [5] In the present claim, the claimant contends that she sustained an injury as a result of repetitive motion. Consequently, the requirements of Ark. Code Ann. §11-9-102(5)(A)(ii)(a) (Repl. 1996) are controlling, and the following must be satisfied:

(1) proof by a preponderance of the evidence of an injury arising out of an in the course of his employment (see, Ark. Code Ann. § 11-9-102(5)(A)(ii) (Repl. 1996); Ark. Code Ann. § 11-9-102(5)(E)(ii) (Repl. 1996); see also, Ark. Code Ann. § 11-9-401(a)(1) (Repl. 1996));
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body (see, Ark. Code Ann. § 11-9-102(5)(A)(ii) (Repl. 1996));
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury (see, Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996));
(4) proof by a preponderance of the evidence that the injury was caused by rapid repetitive motion (see, Ark. Code Ann. § 11-9-102(5)(A) (ii)(a) (Repl. 1996));
(5) proof by a preponderance of the evidence that the injury was the major cause of the disability or need for treatment (see, Ark. Code Ann. § 11-9-102(5)(E)(ii) (Repl. 1996)).

[6] See Lay v. United Parcel Serv., 58 Ark. App. 35, 944 S.W.2d 867
(1997). [7] 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. AirSystems, 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, ___ Ark. App. ___, ___ S.W.2d ___ (February 25, 1998). [8] 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.

[9] Baysinger, 55 Ark. App. At 176, 934 S.W.2d ___. [10] 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”). See also Rudick, supra. [11] 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 as a UPS driver 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. [12] 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).

[13] Lay, 58 Ark. App. at 41, 944 S.W.2d at 870. [14] In Kildow, the Court observed that in its ordinary usage, the term “rapid” means “swift” or “quick”. Kildow, 58 Ark. App. et. 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.

[15] Kildow, 58 Ark. App. at 199-201, 948 S.W.2d ___. [16] In High Capacity Products v. Moore, ___ Ark. App. ___, ___ S.W.2d ___ (Feb. 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.

[17] 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 ___. [18] In the present case, the record indicates the claimant became re-employed by the respondent on June 25, 1995, in the repair of defective lamps. On September 4, 1996, the claimant reported problems with her right wrist to her employer, and came under the care of Dr. Archie Hearne on that date. Dr. Hearne tentatively diagnosed the claimant with right side carpal tunnel syndrome which was confirmed by EMG/nerve conduction studies performed by Dr. Janell Van Zanadt. In October of 1995, the claimant came under the care of Dr. Joseph Sheppard, a hand surgeon. Based on a history provided by the claimant, Dr. Sheppard opined as follows on October 29, 1996:

As you recall, she is a 32 year old, right-hand dominant employee at Cheyenne Industries where her work involves repetitive use of her hands, an air gun, and other hand operational tools. She has a progressive numbness and tingling in her hand, as well as a dorsal mass on her right wrist . . .

. . .

I have reviewed the electrodiagnostic studies and confirm my clinical impression that she has carpal tunnel syndrome. I believe this is a work-related condition on the basis of the use of the hand tools . . . It is my impression, with a reasonable degree of medical certainty, that this is related to her work at Cheyenne Industries (Emphasis added).

[19] In a follow-up letter dated November 7, 1996, Dr. Sheppard opined as follows regarding the claimants work duties:

With respect to her carpal tunnel syndrome, I think her occupation is responsible for her current problem, and if she could find alternative employment, surgery might be avoided. On the other hand, if she remains motivated to continue working at Cheyenne Industries, then I think every attempt to avoid the use of power tools with her right hand should be made. Limiting the amount of repetitive work would also assist her symptoms. Her ability to return to her original job would certainly be in jeopardy, however, it is conceivable that minor ergonomic modifications of work-place and her work style may allow this to occur. (Emphasis added).

[20] As we interpret Dr. Sheppards’ October 29, 1996, and November 7, 1996, letters, Dr. Sheppard was under the impression that the claimant engaged in routine use of power tools (i.e., an air gun) which played a significant causative role in the claimant’s onset of carpal tunnel syndrome, and which could be eliminated through “minor modifications”. However, as we interpret the claimant’s testimony, the claimant only engaged in the repair of 30 to 50 lamps per eight hour shift, or an average of approximately one lamp every 12 minutes. In addition, the claimant’s testimony indicates that she only used the air gun (power tool) to remove one bolt from the bottom of each lamp, at a rate of only one use every 12 minutes. Moreover, to the extent that Dr. Sheppard has suggested that the claimant’s repetitive use of power tools (an air gun) caused her most recent carpal tunnel syndrome symptoms, we find that the claimant failed to prove by a preponderance of the evidence that her repetitive use of an air gun at a rate of once every 12 minutes constitutes “rapid and repetitive motion.”See Lay, supra. [21] In addition, even considering the claimant multiple tasks of using an air gun and hand tools, we find that the claimant failed to prove by a preponderance of the evidence that her multiple tasks in re-wiring defective lamps at a rate of approximately one lamp every 12 minutes required “swift or quick” motion of her right hand. In reaching that conclusion, we note that the claimant has identified a number of different hand tools she used during the course of dis-assembling a defective lamp and re-assembling the lamp with new components. Depending on the nature of the lamp’s defect, these tools might include: a crooked wrench a phillips screwdriver, a flat head screwdriver, wire clippers, wire cutters and/or wire pliers. However, the claimant’s use of these tools was only intermittent, and dispersed at various points during the approximately 12 minute interval during which she dis-assembled and re-assembled a defective lamp. [22] Moreover, contrary to the claimant’s attempt to characterize her job as essentially “assembly line” type work, both the claimant’s testimony and the respondent’s videotape indicate that the claimant and the respondent’s other employees work at their own pace to determine the nature of the defect to be repaired for each lamp then to proceed with the necessary actions to effect those repairs. [23] After reviewing the claimant’s testimony and the respondents’s videotape as they relate to the pace of the claimant’s production (approximately one lamp every 12 minutes), the nature and extent of the claimant’s job duties in determining what repairs are necessary and in implementing these repairs, we find that the claimant failed to prove by a preponderance of the evidence that her multiple job tasks required “swift” or “quick” use of her right hand. [24] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein we find that the decision of the administrative law judge must be, and hereby is affirmed. [25] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[26] Commissioner Humphrey dissents.