CLAIM NO. F108263
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 21, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE EDDIE WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondents represented by HONORABLE WAYNE HARRIS, Attorney at Law, Fort Smith, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an Administrative Law Judge’s opinion filed July 5, 2002. The Administrative Law Judge found that the claimant failed to prove he sustained a compensable injury to his cervical spine. After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.
I. HISTORY
Thomas Elmer Bardrick, age 42, became employed with Rheem Manufacturing Company in December 1985. The record indicates that the claimant reported stiffness in his neck to a chiropractic physician in August 1989. The claimant reported a “Crick in neck” in November 1990. The claimant began a regular course of treatment for his neck and low back. An osteopathic physician diagnosed “cervical thoracic and lumbar formatic dysfunction” in November 1998.
The parties stipulated that the employee-employer relationship existed on April 17, 2001. The claimant testified that he began performing the job, “Brazing in cap tubes.”
The claimant testified:
Q. And what caused you to go to the company doctor?
A. Well, I did it the first day and at the end of the day, my arm was kind of numb, and I went home and it got better that evening. The second day I did the job, I went home — about the middle of the day, it started bothering me some. At the end of the day, when I went home, my arm was numb, my right arm, and it stayed numb all that night, and the next morning when I went to work, the lead man said I needed to do that job again and I told him okay, I would do it, but my right arm was numb and I would do the best I could, and when the nurse came in, I was going to go up to the nurse and have it checked out and see the company doctor. . . .
Q. Was there any particular thing on that Tuesday that caused this problem?
A. All I can figure is just holding my arm up in one position all that time. . . .
Q. Between when your symptoms first started on April 17th and when you went to the doctor on April 19th, did you continue to do the same kinds of activities that had caused your symptoms in the first place?
A. Yes, I did the same job.
Q. And your condition continued to worsen?
A. Correct.
The claimant testified on cross-examination:
Q. Do you know what size units and how many welds you were having to weld on the 17th, 18th and 19th of April of 2001?
A. I’m going to say in those three days we ran all of the sizes in the residential.
Q. Would the line run about the same speed, though, regardless of which size units that you were operating on?
A. It just depended. Sometimes if you couldn’t keep up, they would turn it down a little bit on the ones that took more brazes. . . .
Q. And how long would it take you to braze each coil?
A. Maybe 30 or 45 seconds, possibly up to a minute, if that long.
Q. And how often would the coils move in front of you?
A. Well, they’re supposed to have them spaced about that far apart (indicating), but it doesn’t always happen. You know, if the guy doesn’t get one up there in time, and then if he doesn’t, then the supervisor will be over there wondering why that guy didn’t put one up there in time.
Q. I notice that in the month ending April 20th, 2001, according to production records, you’re running about 240 a day.
A. That would be about right.
Q. Over an eight-hour period. You were working eight hours a day at that time, I also understand?
A. I believe so.
Q. So that would be approximately 30 an hour, so it would be about one every two minutes. Does that sound about right?
A. Probably.
The claimant reported to the company physician on April 19, 2001:
Different job Tuesday. At end of day, R arm felt “numb” and “spongy” or “something.” Difficulty raising arm past 2 days. Job required abducting elbow to reach over into E coil.
The physician assessed “Possible overuse syndrome” and assigned work restrictions.
The claimant presented to Dr. Joe D. Balkman, D.C., on April 26, 2001:
This is a forty year old man presenting with right upper extremity numbness and weakness, right leg numbness and weakness right foot. Mr. Bardrick claims these symptoms began while performing repetitive type work with the upper extremities while on the job at Rheem Mfg.
Dr. Balkman took the claimant off work and referred him to another physician for further treatment.
The claimant presented to Dr. J. Michael Standefer on June 27, 2001. On a form provided by Dr. Standefer, the claimant did not check a space beside the question, “Is This Workman’s Compensation?” The claimant gave Dr. Standefer a history of pain in his neck lower back, numbness in his right arm for two to three years.
Dr. Standefer reported on June 27, 2001:
The patient is a forty year old white male who has had problems with pain in his neck and low back and numbness in the right arm for quite some time. . . . More recently, the patient has had problems with numbness in the right arm. He developed this while welding. As time has passed, the numbness has diminished although it has not gone away completely. . . . I reviewed the patient’s available radiographic studies which includes MR scanning of the cervical and lumbar spine. The lumbar MR scan demonstrates a focal disc protrusion at the L4-5 level which has produced significant canal stenosis. This is a large disc protrusion. The cervical MR scan likewise demonstrates multilevel degenerative arthritic changes particularly at C4-5 and C5-6 with attendant disc bulging at this level. This is more notable at C4-5 than elsewhere. . . .
Dr. Standefer’s impression was “Symptomatic cervical and lumbar spondylosis/disc protrusion.” Dr. Standefer scheduled additional diagnostic testing and kept the claimant off work. Dr. Standefer reported on July 10, 2001:
The studies clearly demonstrate focal disc bulging/protrusion at multiple levels including C4-5, C5-6 and C6-7, the latter area of substantial severity. Based upon these findings, I believe that consideration for anterior cervical discectomy with fusion at C5-6 and C6-7 would provide the patient with a good chance for relief of his neck pain.
On August 8, 2001, Dr. Standefer diagnosed “1. Focal cervical disc protrusion with neck, shoulder and upper extremity pain. 2. Degenerative arthritis of the cervical spine.” Dr. Standefer performed an anterior cervical discectomy at C6-7 and at C5-6. The claimant followed up with Dr. Standefer on September 18, 2001:
In the interim since discharge from Sparks Regional Medical Center, he has done well. He is not really having any significant neck, shoulder or upper extremity pain, paresthesias or weakness. Overall, he is much improved. We will plan to proceed with lumbar fusion in the not too distant future.
Mr. Bardrick claimed entitlement to worker’s compensation. A pre-hearing order was filed with the Commission on January 31, 2002, wherein the parties agreed to litigate the following issues:
(1) Whether the claimant sustained a compensable injury to his cervical spine, either as the result of a specific incident on April 17, 2001, or cumulative trauma due to rapid repetitive motion;
(2) Reasonably necessary medical treatment;
(3) Temporary total disability from April 19, 2001 through a date yet to be determined.
The parties deposed Dr. Standefer on April 2, 2002. Dr. Standefer testified that he and the claimant did not discuss the claimant’s job duties; nor did Dr. Standefer have knowledge of the claimant’s welding activities with the respondent-employer. Dr. Standefer agreed that the claimant’s upper extremity problems were “more chronic than acute.”
Dr. Standefer agreed that all of the diagnostic findings involving the claimant’s cervical spine were “degenerative in origin.”
After a hearing before the Commission, the Administrative Law Judge found that the claimant failed to prove a compensable injury caused by a specific incident or cumulative trauma. The Administrative Law Judge therefore denied and dismissed the claim; claimant appeals to the Full Commission.
II. ADJUDICATION A. Specific incident
All alleged workplace injuries beginning July 1, 1993 and following are governed by Act 796 of 1993. Act 796, as codified at Ark. Code Ann. § 11-9-102(4)(A), defines “compensable injury”:
(i) An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence[.]
The Administrative Law Judge determined in the present matter that the evidence did not show a “specific incident” injury. The claimant contended that he began experiencing right-arm numbness some time during the day on April 17, 2001, and that there was not a particular “act or event.” Therefore, the claimant failed to prove an incident “identifiable by time and place of occurrence,” as required by Ark. Code Ann. §11-9-102(4)(A)(i). The Full Commission affirms the opinion of the Administrative Law Judge.
The claimant testified that he gradually began experiencing right arm numbness over the course of the workday on April 17, 2001. The claimant’s testimony did not indicate a specific incident identifiable by time and place of occurrence, nor does the record support a finding of such a specific incident. An employee does not have to identify an exact date, but there must be an “identifiable” incident under § 11-9-102(4)(A)(i).Edens v. Superior Marble Glass, 346 Ark. 487, 58 S.W.3d 369
(2001). A generic description of work does not suffice — there must be a particular, specific incident. Hapney v. Rheem Manufacturing, 342 Ark. 11, 26 S.W.3d 777 (2000). In the present matter, the Full Commission affirms the Administrative Law Judge’s finding that the claimant failed to prove he sustained a specific incident identifiable by time and place of occurrence.
B. Rapid repetitive motion Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(4)(A), also defines “Compensable injury” as:
(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.
The test for analyzing whether an injury is caused by rapid repetitive motion is two pronged: (1) the tasks must be repetitive, and (2) the repetitive motion must be rapid. Malone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W.2d 644 (1998). The tasks must be repetitive, or the rapidity element is not reached; the repetitive tasks must be completed rapidly. Malone, supra.
The Administrative Law Judge found in the present matter that the claimant failed to prove an injury which was “the result of cumulative trauma produced by employment related `rapid repetitive motion.'” The Administrative Law Judge determined:
The testimony of the respondent’s witness, Charles Anderson, reflects that time required for the claimant could (sic) carry out his assigned task on each unit would be somewhere between 40 seconds and one minute and 10 seconds. The testimony of Mr. Anderson and the production records also show that the claimant was required to repeat these tasks on approximately 240 units a day or one unit every two minutes. However, the videotape demonstration of these activities does not reveal that the actual movements necessary to perform these tasks would generally be considered rapid. However, it is immaterial whether this repetitive motion would also be considered “rapid”. The greater weight of the credible evidence simply fails to prove that any such motion played any causal role in producing the claimant’s cervical condition or the onset of his complaints in April of 2001. Neither the videotape, nor the testimony of any of the witnesses (including the claimant) show that the claimant’s assigned employment tasks involved any “rapid repetitive motion” of his neck or cervical spine.
The claimant on appeal focuses on “specific incident” and essentially does not argue that his work duties were rapid and repetitive. Based on a preponderance of the evidence, the Full Commission affirms the Administrative Law Judge’s finding that the claimant failed to prove he sustained a compensable cervical injury as the result of rapid repetitive motion.
Based on our de novo review of the entire record, the Full Commission finds that the claimant failed to prove he sustained a compensable injury to his cervical spine. We therefore affirm the Administrative Law Judge’s opinion. This claim is denied and dismissed.
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
______________________________ JOE E. YATES, Commissioner
Commissioner Turner dissents.