CLAIM NO. E511292
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 13, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by THE HONORABLE FRED O’NEILL, Attorney at Law, Thayer, Missouri.
Respondent represented by the HONORABLE TOM HARPER, JR., Attorney at Law, Fort Smith, 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 November 7, 1996. In that opinion and order, the administrative law judge found the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury while employed by the respondent. After conducting a de novo review of the entire record, we find that the decision of the administrative law judge must be affirmed.
Only by very intense questioning did the patient admit that she had been seeing Dr. Wilbur for pain in her wrists for up to three years, and had various types of tests and workup for such things as carpal tunnel syndrome, etc. That, in fact, this is just a new development in ongoing problem. Of interest is the fact that the pain never goes away, it’s there night and day.
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[5] The claimant additionally sought treatment from Dr. Stanley Hayes and in a report dated October 19, 1994, he stated:I was very upset with what appeared to me to be an overt pattern of deception relative to an ongoing medical problem.
Your nerve conduction studies that were performed on 10-14-94 were entirely normal. There was no sign of carpal tunnel syndrome. There was no sign of any other nerve damage.
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[6] The claimant sought treatment from Dr. Aly Mohsen, a physical medicine specialist. Dr. Mohsen ordered another EMG and nerve conduction study and on February 6, 1995, opined that these were consistent with medium nerve entrapment at the wrist bilaterally. On March 20, 1996, Dr. Thomas Knox performed an independent medical evaluation of the claimant. Dr. Knox performed some diagnostic tests upon the claimant and stated:On this basis, there is no clue for carpal tunnel or any `nerve’ injury that would explain your discomfort.
[7] In addition, Dr. Knox opined:She had been working at Baxter for about two years. However, her complaints with hand pain went back three years prior to this, and apparently even predated her employment at Baxter Healthcare.
[8] Since the claimant contends that she 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 her injury was caused by a specific incident and identifiable by time and place of occurrence. Instead, she 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:As to the cause of her carpal tunnel syndrome, I cannot state that her employment at Baxter Healthcare was the sole cause.
[9] 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. [10] After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that any injury that the claimant may have sustained as a result of her work for the respondent was the major cause of her disability or need for medical treatment. In this regard, the claimant asserts that she never experienced any symptoms prior to September 1993. However, the medical record establishes that the claimant was in fact experiencing problems with her wrists and hands three years prior to 1993 (i.e., prior to going to work for the respondent), and that her symptoms while working for the respondent were merely recurring symptoms of a prior abnormality. In reaching our decision, we also note that the medical evidence shows that the claimant’s nerve conduction studies while employed by the respondent were negative. The claimant did not have a positive nerve conduction test until four months after she last worked for the respondent. [11] Accordingly, based upon our de novo review of the record, and for the reasons discussed herein, we find that the decision of the administrative law judge must be, and hereby is, affirmed. [12] IT IS SO ORDERED.(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) (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)).
ELDON F. COFFMAN, Chairman
[13] Commissioner Humphrey dissents. [14] Commissioner Wilson concurs.[15] CONCURRING OPINION
[16] The claimant began working for the respondent in March 1992 in production. The claimant testified that she began having problems with numbness in her fingers in September of 1993. The claimant stated that she and other employees in production would work on one task for approximately two hours, take a ten minute break, and then move on to a different task. The claimant additionally testified that although she would change jobs, she continued to use the same wrist and hand motions in the different tasks. The claimant stated every job she had while employed with the respondent involved solvent sealing where you use an anchor hand and a push hand. She asserted that the work was rapid and repetitive since there were production quotas to meet. [17] In September of 1993, the claimant took off some time from work after she began having problems. The problems resolved and the claimant returned to work. However, she again began having difficulties in June of 1994. The claimant testified that she last worked for the respondent on September 9, 1994 when she was dismissed for missing too many days. The claimant drew unemployment benefits until she began working in 1995 for the Department of Human Services as a Social Service Aide II. The claimant testified that she has not performed any work that required rapid repetitive use of her hands since leaving the respondent. [18] The claimant first sought treatment from Dr. Robert Kerr who performed an EMG and nerve conduction velocity study. These tests revealed normal limits. The claimant also sought treatment from Dr. James R. Friend and in a report dated June 21, 1994 Dr. Friend stated:I respectfully concur in the principal opinion finding that the claimant failed to prove by a preponderance of the evidence that she sustained a rapid repetitive motion injury in the course and scope of her employment. I agree with the majority’s finding that the claimant failed to prove by a preponderance of the evidence that any injury the claimant may have sustained as a result of her working for the respondent was the major cause of her disability or need for medical treatment. I am writing separately to express my views with respect to the rapid and repetitive issue presented in the claim.
Only by very intense questioning did the patient admit that she had been seeing Dr. Wilbur for pain in her wrists for up to three years, and had various types of tests and workup for such things as carpal tunnel syndrome, etc. That, in fact, this is just a new development in ongoing problem. Of interest is the fact that the pain never goes away, it’s there night and day.
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[19] The claimant additionally sought treatment from Dr. Stanley Hayes and in a report dated October 19, 1994 he stated:I was very upset with what appeared to me to be an overt pattern of deception relative to an ongoing medical problem.
Your nerve conduction studies that were performed on 10-14-94 were entirely normal. There was no sign of carpal tunnel syndrome. There was no sign of any other nerve damage.
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[20] The claimant sought treatment from Dr. Aly Mohsen, a physical medicine specialist. Dr. Mohsen ordered another EMG and nerve conduction study and on February 6, 1995 opined that these were consistent with median nerve entrapment at the wrist bilaterally. On March 20, 1996, Dr. Thomas Knox performed an independent medical evaluation of the claimant. Dr. Knox performed some diagnostic tests upon the claimant and stated:On this basis, there is no clue for carpal tunnel or any `nerve’ injury that would explain your discomfort.
[21] In addition, Dr. Knox opined:She had been working at Baxter for about two years. However, her complaints with hand pain went back three years prior to this, and apparently even predated her employment at Baxter Healthcare.
[22] The claimant’s injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Ark. Code Ann. § 11-9-102As to the cause of her carpal tunnel syndrome, I cannot state that her employment at Baxter Healthcare was the sole cause.
as amended by Act 796 of 1993. We have held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Act 796. Jerry D. Reed v. ConAgraFrozen Foods, FC Opinion filed Feb. 2, 1995 (E317744). The claimant does not contend that the injury is identifiable by time and place of occurrence. Instead, the claimant contends that the injury is a rapid repetitive motion injury. Consequently, in order to prevail on a rapid, repetitive motion claim, a claimant must prove by a preponderance of the evidence that she sustained an injury causing internal or external harm to the body which arose out of and in the course of her employment and which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(5)(A)(ii) and § 11-9-102(5)(E)(ii) (Repl. 1996). A claimant must also prove by a preponderance of the evidence that the injury was caused by rapid repetitive motion, and that the injury was the major cause of the disability or need for treatment. See Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) and § 11-9-102(5)(E)(ii) (Repl. 1996). Finally, Ark. Code Ann. § 11-9-102(5)(D) requires that a claimant must establish a compensable injury “by medical evidence supported by `objective findings’ as defined in § 11-9-102(16).” Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996). See also Jean Carter v. AidTemporary Services, Inc., FC Opinion filed May 12, 1995 (E404813). [23] If an employee fails to establish by a preponderance of the credible evidence any of these requirements for establishing the compensability of the alleged injury, she fails to establish the compensability of the claim and the claim must be denied. Reed v.ConAgra, supra. [24] In my opinion, a review of the evidence indicates that claimant failed to prove by a preponderance of the credible evidence that she sustained a compensable rapid repetitive motion injury. [25] The claimant failed to prove by a preponderance of the evidence that her carpal tunnel syndrome was caused by rapid repetitive motion. Although 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, we held in Throckmorton v. J J Metals, FC Opinion filed August 14, 1995 (E405318) 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, same movement again and again over extended periods of time.” We further held that whether the employment duties satisfied this statutory requirement is a fact question to be decided based upon the evidence presented in each case. [26] In a recent Court of Appeals decision, the Court addressed our definition of rapid repetitive motion. See Baysinger v. AirSystems Inc., 55 Ark. App. 174, ___ S.W.2d ___, (1996). The Court disagreed with our factual assessment in Baysinger wherein we found claimant’s multiple job tasks did not meet the definition of “repetitive.” In light of the Court’s decision in Baysinger, we are now required to re-evaluate how we view multiple job tasks within the “repetitive” definition. See also, Donnie Mullins v.Hytrol Conveyor, FC Opinion March 13, 1997, (E600667). [27] The Court of Appeals has also recently addressed the question of rapid and repetitive motion in the case of Lilly Kildow v.Baldwin Piano and Organ, 58 Ark. App. 194, ___ S.W.2d ___ (1997). The Court found that the claimant was not required to prove that she was performing the exact or almost exact same movement over and over again. The Court further went on to define rapid as “swift or quick.” [28] In his dissenting opinion in Lilly Kildow, Justice Wendell Griffen articulated “some meaningful standard that can be used to assess the proof” in a rapid repetitive motion case. Justice Griffen stated:
[29] Although the Court of Appeals in Lilly Kildow found the claimant to have proven by a preponderance of the evidence that her carpal tunnel syndrome was caused by rapid repetitive motion with the only evidence of speed being the fact that she worked on an assembly line, we are still compelled to find that a claimant must present evidence with regard to both the rapid and repetitive requirements of the Act. In our opinion, the claimant has not presented any evidence that her job is both rapid and repetitive either under the majority’s definition or the definition as set forth in Judge Griffen’s dissent in Lilly Kildow. [30] After reviewing the record as a whole, and without giving the benefit of the doubt to either party, I cannot quantify the claimant’s job duties as rapid and repetitive. To do so based upon the evidence presented would require speculation and conjecture on our part. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v.Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas MethodistHospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). [31] There is simply no evidence in the record, except for the claimant’s uncorroborated testimony that her job was rapid. A claimant’s testimony is never considered uncontroverted. Lambertv. Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985).Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457If one accepts the traditional rule of statutory construction that words must be given their ordinary meaning to affect intent of the legislature, and that we should follow common sense in that process, we may properly arrive at a workable definition for rapid repetitive motion. Webster’s Third New International Dictionary contains the following definitions:
`rapid’ — Marked by a notably high rate of motion, activity, succession, or occurrence.
`repetitive’ (from repetition) — The fact of occurring, appearing, or being repeated again.
`motion’ — An act or instance of moving the body or any of its members.
Thus, rapid repetitive motion should be defined for purposes of the statute before us as referring to injuries caused by fast or notably high rate of recurring motion, process or action.
(1994). It is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993). We find that the claimant’s testimony is lacking credibility. [32] The claimant testified that her job was rapid. She testified that a videotape depicting the claimant’s job duties did not accurately reflect her job activity. She testified that the job activity reflected on the videotape was slower than what was required of her when she performed her job. Kathy Wedgeworth, production superintendent at the respondent’s plant, testified that the claimant’s physical requirements and movements were virtually identical to that shown on the video and that the video reflects a job which ran with a similar operation. She stated that the taped operation was in fact faster than the job the claimant worked on. This is in direct contradiction to the claimant’s testimony which stated that operation was slower than the activity the claimant engaged in. Additionally, Ms. Wedgeworth testified that there were no production incentives and that employees were not allowed to change the belt speed. [33] The claimant’s asserts that her situation is more appropriately compared to Baysinger; however, there are distinctive differences between the two. The video reflects that the claimant’s job activities were not rapid. Moreover, the claimant’s job activities as reflected in the videotape and in the testimony of Kathy Wedgeworth and even by the claimant, does not begin to approach the job activity performed in Baysinger. The tests of rapidity enunciated in Baysinger is that each phase or step in a claimant’s job activities must be considered in the aggregate to determine if her job as a whole is rapid and repetitive. The claimant’s proof in this case falls far short of passing that test. The claimant’s testimony does not establish that the multiple tasks she performed were rapid. The video reflects otherwise and is corroborated by the testimony of Kathy Wedgeworth who stated that the job activity required seven steps, none of which were rapid. [34] The claimant has also failed to prove that her job duties fit within the definition of rapid as defined by the Court in theLilly Kildow case. In Lilly Kildow, the Court of Appeals found that the claimant is not required to prove that she was performing the exact or almost exact same movement over and over again. However, the majority defined rapid as “swift or quick.” Our review of the record fails to reveal any evidence that the claimant’s job activities were swift or quick. [35] Although the claimant may have proved that her job was repetitive in nature, she has failed to prove that her job was rapid. In order for the claimant to satisfy the requirements of Ark. Code Ann. § 11-9-102(5)(A)(ii)(a), she must prove that her job is both rapid and repetitive. Based upon my de novo review of the record, we find that the claimant has failed to prove by a preponderance of the evidence that her job is rapid and repetitive. [36] Accordingly, based upon my de novo review of the record, and for the reasons discussed herein, I find that the claimant has failed to prove by a preponderance of the evidence that her work activity falls within the definition of rapid repetitive motion [37] Therefore, I respectfully concur in the majority’s opinion. [38] MIKE WILSON, Commissioner