BAYSINGER v. AIR SYSTEMS, INC., 1995 AWCC 235

CLAIM NO. E316706

LARRY R. BAYSINGER, EMPLOYEE, CLAIMANT v. AIR SYSTEMS, INC., SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 19, 1995

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

Claimant represented by the HONORABLE STEPHEN SHARUM, Attorney at Law, Fort Smith, Arkansas.

Respondent represented by the HONORABLE ELDON F. COFFMAN, Attorney at Law, Fort Smith, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on July 28, 1994. In that opinion and order, the administrative law judge found that the claimant sustained a compensable injury. After conducting ade novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury. Therefore, we find that the administrative law judge’s decision must be reversed.

[3] The claimant worked for the respondent employer for approximately two years and three months. The respondent employer manufactured custom-made stainless steel equipment, primarily sinks for commercial restaurants and cafeterias, and the claimant’s duties primarily involved welding. According to the testimony of three of his co-workers, the claimant and other employees did all of the work necessary to customize the equipment to the specifications of the customer, including shaping, molding, finishing, polishing the item. The testimony of these witnesses also indicates that the claimant was required to finish off the edges with tools that curved the finished edge, to remove the burrs from the metal, to grind certain parts of the metal, and to polish the metal. These duties required him to grip tools that were vibrating and to use a ball peen hammer. The testimony of these witnesses also indicates that the claimant’s duties varied during the day according to the requirements necessary for manufacturing the particular item varied. However, their testimony indicates that each of the duties involved fairly constant stress and shock to the hands, wrists, and arms.

[4] According to the claimant’s testimony, he began to experience pain in his wrist while working sometime in late 1992. While he experienced this pain while he was working, he testified that the pain subsided during the weekends when he was not working. He reported these problems to the respondent employer. However, he continued to work until September of 1993, when he testified that the pain and numbness became so great that he sought medical treatment. Electrodiagnostic tests were performed which confirmed mild bilateral carpal tunnel syndrome.

[5] Since the claimant contends that he sustained an injury after July 1, 1993, this claim is controlled by the Arkansas Workers’ Compensation Law as amended by Act 796 of 1993. Consequently, to establish the compensability of the claim, the claimant must satisfy the requirements for establishing one of the five categories of compensable injuries recognized by the amended law, including the requirements common to all categories of injuries. See, Jerry D. Reed v.Con Agra Frozen Foods, Full Workers’ Compensation Commission, opinion filed Feb. 2, 1995 (Claim No. E317744). In the present claim, the claimant does not contend that his injury was caused by a specific incident and identifiable by time and place of occurrence. Instead, he contends that he sustained an injury as a result of repetitive motion. Consequently, the requirements of Ark. Code Ann. § 11-9-102
(5)(A)(ii)(a) (Cumm. Supp. 1993) are controlling, and the following must be satisfied:

(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment (see, Ark. Code Ann. § 11-9-102
(5)(A)(ii) (Cumm. Supp. 1993); Ark. Code Ann. § 11-9-102 (5)(E)(ii) (Cumm. Supp. 1993); see also, Ark. Code Ann. § 11-9-401 (a)(1) (Cumm. Supp. 1993));
(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) (Cumm. Supp. 1993));
(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) (Cumm. Supp. 1993));
(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) (Cumm. Supp. 1993));
(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) (Cumm. Supp. 1993)).

[6] If the employee fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, he fails to establish the compensability of the claim, and compensation must be denied. Reed, supra.

[7] In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that the injury was caused by rapid repetitive motion. This Commission addressed this requirement in Richard Throckmorton v. J JMetals, Full Workers’ Compensation Commission, Aug. 14, 1995 (Claim No. E405318) In Throckmorton, we noted that the Act does not establish any guidelines with regard to the extent of motion necessary to satisfy the requirement of “rapid motion” or with regard to the nature of the motion necessary to satisfy the requirement of “repetitive motion.” However, we noted that the term “rapid” is commonly used 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. See,Webster’s Third New Unabridged International Dictionary,
(1986). We also noted that the term “repetitive” is commonly used to describe the act of doing the exact same thing again and again. Id. Thus, we found that the requirement that the condition be caused by rapid repetitive motion requires proof that the claimant’s employment duties involved, at least in part, a notably high rate of activity involving the exact, or almost exactly, the same movement again and again over extended periods of time. We also noted in Throckmorton that the determination of whether a certain employment duty satisfies the statutory requirement for rapid repetitive motion is a fact question which must be decided based on the evidence presented in each case. Furthermore, we pointed out that the statute does not require proof that the employee’s duties involved rapid repetitive motion for the entire duration of the employee’s shift or that he engaged in such activities every day. However, we noted that the evidence must show a causal relationship between the disabling condition and the employment related activity.

[8] In the present claim, while claimant’s duties involved hand intensive labor, the evidence shows that the job did not involve the exact, or almost exactly, the same movement again and again. Instead, the description indicates that several steps were involved in performing the job, and there is no indication that the different steps involve the same movement again and again for prolonged periods of time. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that his carpal tunnel syndrome was caused by rapid repetitive motion. Consequently, we find that the claimant failed to establish the requirements necessary to establish a compensable injury.

[9] In reaching our decision, we recognize that the respondents objected to the introduction of the claimant’s deposition testimony. However, in light of our decision in this claim, it is not necessary for us to consider whether that deposition should have been admitted. In addition, we note that we have not relied on his deposition testimony in reaching this decision.

[10] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to establish the requirements necessary to establish a compensable injury. Therefore, we find that the administrative law judge’s decision must be, and hereby is, reversed. This claim is hereby denied and dismissed.

[11] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[12] Commissioner Humphrey dissents.

[13] DISSENTING OPINION
[14] I must respectfully dissent from the opinion of the majority finding that claimant has failed to prove that he sustained a compensable injury.

[15] Claimant presented credible testimony that his job duties were hand-intensive. This testimony was corroborated by the testimony of Lloyd Quinalty and Eric Lyle Handlang, co-workers who performed the same job duties. Further, each of these employees recalled claimant complaining of difficulties with his hands and wrists while performing the job. Additionally, claimant presented credible testimony that the job duties caused his symptoms to worsen and that these symptoms would resolve somewhat over the weekend when he was off work. Electrodiagnostic studies confirmed that claimant’s condition is bilateral carpal tunnel syndrome. Based on the above evidence, I find that claimant has proven by a preponderance of the evidence that he sustained an injury arising out of and in the course of his employment.

[16] In my opinion, the facts of this case clearly indicate the presence of carpal tunnel syndrome, which resulted from repetitive work-related duties. Even the majority notes that claimant’s “duties required him to grip tools that were vibrating and to use a ball peen hammer.” More importantly, the majority acknowledges that claimant and his co-workers testified that “each of the duties involved fairly constant stress and shock to the hands, wrist, and arms.”

[17] For the foregoing reasons, I dissent. Claimant is clearly entitled to compensation benefits.

[18] PAT WEST HUMPHREY, Commissioner