BUNN v. GEORGIA-PACIFIC CORPORATION, 1997 AWCC 170

CLAIM NO. E415001

DONNA G. BUNN, EMPLOYEE, CLAIMANT v. GEORGIA-PACIFIC CORPORATION, SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 8, 1997

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

Claimant represented by the MICHAEL D. RAY, Attorney at Law, Crossett, Arkansas.

Respondents represented by the JAMES M. GARY, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the Administrative Law Judge on January 30, 1996. In that opinion and order, the Administrative Law Judge found that the claimant sustained a compensable rapid repetitive injury. After carefully conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the Administrative Law Judge’s decision is supported by a preponderance of the credible evidence and that the findings of fact made by the Administrative Law Judge are correct and they are, therefore, affirmed by the Full Commission.

[3] The claimant began working for the respondent employer in February, 1992. The claimant was classified as utility, which entailed assignments as a laborer. The claimant performed the following tasks: “material handler”, “core cutting”, “car bracing”, and “working in the utility behind the winder.” She also performed labor jobs such as cleaning up, sweeping, slabbing down the rolls, and general clean up in the mill.

[4] “Slabbing down a roll” required gripping a paper cutting knife with a one or one-and-a-half inch blade and pushing with the wrist across the rolls, cutting slabs from rolls of paper that were forty to seventy inches in diameter and weighed from one thousand to thirty-five hundred pounds. This required holding the knife in the palm of the hand and wrapping the fingers around the thumb, which required an extraordinary amount of hand and wrist pressure. The number of passes necessary to remove the paper from the roll depended upon the size of the roll. The amount of hand and wrist pressure applied increased with the number of passes because the knife would become dull, requiring increased hand and wrist pressure. After cutting off all the paper, the core was discarded and the employee then fed the paper into a shredder, which baled and slabbed.

[5] “Car bracing” required assisting the truck drivers in setting up railcars or truck trailers so that finished rolls could be placed into containers. The claimant would cut 2×4 boards and nail them together with an air-powered nail gun to make squares on which to set the rolls for the trailers. Setting up railcars required the claimant to also cut 2×4 boards and nail them together with an air-powered nail gun to make squares on which to set the rolls. The claimant testified that the air-powered nail gun weighed approximately ten pounds. (Tr. 73). This required the claimant to pull bands twelve or fifteen feet in length and feed them through the doorway of the railcar. Then the claimant used an air bander and pulled the bands through it to tighten the bands. Then a crimper was used to mash the seals on the bands together. The crimper had a trigger which was squeezed to force the jaws together to compress the clamp. The bander had a lever that was pressed down with the thumb to insert the bands through and the back part of the handle was twisted to turn it on and off. The claimant testified that the bander weighed twenty-six pounds. (Tr. 76). The bands were staggered at different heights starting approximately two feet from the floor and ending at approximately six feet from the floor. This staggering required the claimant to lift the twenty-six pound bander above her head. Railroad cars normally required six bands. Placing these bands required the claimant to climb up and down a six-foot ladder carrying the twenty-six pound bander. The claimant estimated that, at a minimum, she would set up one car and two or three trucks per day and, at a maximum, she would load fifteen trucks and set up five cars per day.

[6] “Core cutting” required removing cores twelve to fourteen feet long from a core buggy and cutting them to designated lengths. The claimant used a hammer, weighing approximately three to four pounds, to drive plugs into the ends of the cores. She estimated that she would swing the hammer from two to six times per plug. The number of swings depended upon the size of the plug. The most popular cores used were five and twelve inches in diameter. The five-inch required two or three swings and the twelve-inch three to six swings of the hammer. The cores were then loaded into a buggy and moved to the winder. Then the claimant was required to empty the plug and core buggies and move them to the core cutter area for re-use.

[7] “Material handling” required driving plugs into the ends of the cores of the paper rolls. The plugs ranged from three to twelve inches in diameter, depending on the size of the core. The roll was pushed from the back of the winder across a set of scales to a set of rollers which dropped the paper down and then the employee wrapped brown paper around the roll and taped it off. After the paper was wrapped around the roll, the edges were turned down around the rolls to make it flush with the roll. Then a header press was used to fit the headers on each end of the roll and two bands were placed around each roll.

[8] “Working in the utility behind the machines” required placing the parent rolls, which weighed two to four-thousand pounds, on a conveyor belt; taking them off behind the machine; and cutting and taping forty-five degree angles down the paper. This prepared the roll for the webbing. “Working in the utility behind the winder” required the claimant to take the finished roll when it came out of the winder and use a paper knife to cut off the excess wrinkled or bad paper. The excess paper was then fed into a shredder. The roll was then dressed by taping and labeling it. Next, it was dropped down to the conveyor belt where it was removed or plugged. Finally, the excess paper was dragged to the shredder and fed into it.

[9] She testified that she might be required to plug cores, knock cars, and slab, on one eight hour shift. However, she also testified that this was rare, and that she usually performed one job for the entire shift. The claimant is right-handed and she used this hand to perform her job duties. She testified that she began to experience symptoms with her wrist after she arrived home from a day at work that involved substantial physical hand activity. She also testified that she experienced pain mostly at night in her right hand, especially after core cutting, car bracing, or slabbing. The symptoms progressed from a tingling sensation to pain, which required her to seek medical treatment. She was treated conservatively by her family physician, Dr. Barry Thompson, in August, 1994. He referred her to Dr. Walter J. Giller for treatment. Dr. Giller referred the claimant to Dr. Shailash C. Vora for nerve conduction/EMG studies. Subsequently, Dr. Giller performed carpal tunnel release surgery on her right hand.

[10] The claim occurred after July 1, 1993, and is controlled by the Arkansas Workers’ Compensation Law as amended by Act 796 of 1993. In order 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 February 2, 1995 (Claim No. E317744). In the present claim, the claimant contends that her bilateral carpal tunnel syndrome arose out of and in the course and scope of her employment. The claimant does not contend that her injury was caused by a specific incident identifiable by time and place of occurrence. Instead, she contends that she sustained an injury as a result of rapid repetitive motion. We noted inJean Cater v. Aid Temporary Services, Inc., Full Commission Opinion filed May 12, 1995 (Claim No. E404813), that when a claim is made for an injury resulting from rapid repetitive motion, the following requirements must be satisfied:

(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment (Ark. Code Ann. §§ 11-9-102 (5) (A) (ii) and (5) (E) (ii), -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 (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) (Repl. 1996);
(4) proof by a preponderance of the evidence that the injury was caused by rapid repetitive motion (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 (Ark. Code Ann. § 11-9-102 (5) (E) (ii) (Repl. 1996).

[11] In Throckmorton v. J. J. Metals, Full Commission Opinion filed August 14, 1995 (Claim No. E405318) we held:

. . . 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. Obviously, 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 present in each case. Furthermore, we point 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, the evidence must show a causal relationship between the disabling condition and employment related activity satisfying the statutory requirement of rapid repetitive motion.

[12] Furthermore, in Baysinger v. Air Systems, Inc.,55 Ark. App. 168 (1996), the Court of Appeals held that various hand intensive movements should be considered together to satisfy the requirements of the statute. The description of the claimant’s work proves that the claimant’s cumulative job duties when considered together involved various hand intensive, continuous, exact, or almost exactly, similar hand movements for extended periods during her work day.

[13] Also, the claimant established by a preponderance of the evidence that her work activities were the major cause of her carpal tunnel syndrome. Under the amended law, “major cause means more than fifty percent of the cause.” Also, a finding of “major cause shall be established according to the preponderance of the evidence.” Ark. Code Ann. § 11-9-102 (14) (Repl. 1996). The claimant’s medical provider, Dr. Thompson, noted not once, but twice in her medical records that her injury was job related. Also, the claimant did not experience any carpal tunnel symptoms until after she began working for the respondent employer. The claimant testified that her carpal tunnel symptoms were more prevalent after a day at work that involved substantial physical hand activity. Furthermore, there were no activities, such as hobbies, additional jobs, etc., other than her work activities, to which the cause of the carpal tunnel syndrome could be attributed.

[14] Further, Arkansas Code Annotated § 11-9-102 (5) (D) (Repl. 1996) provides that a compensable injury must be established by medical evidence, supported by “objective findings” as defined in A.C.A. § 11-9-102 (16). An EMG/nerve condition test performed by Dr. Shailash C. Vora supported the diagnosis of right side carpal tunnel syndrome. In Edwards v. Cooper Tire Rubber Company, Full Commission Opinion filed December 5, 1996 (E416571), nerve conduction studies were considered “objective medical findings”.

[15] In the present claim, we find that the claimant established each of the requirements necessary to establish a compensable rapid repetitive injury.

[16] The Administrative Law Judge made the following findings of fact:

1. The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.
2. From February, 1994, to September, 1994, the relationship of employee-employer existed between the parties.
3. During the pertinent time period, the claimant earned wages sufficient to entitle her to weekly compensation benefits of $267.00, for temporary total disability benefits.
4. On or about August 17, 1994, the claimant sustained an injury arising out of and in the course of her employment.
5. The claimant was temporarily totally disabled for the period beginning September 3, 1994, and continuing through October 30, 1994.
6. The respondent shall pay all reasonable hospital and medical expenses arising out of the injury of August 17, 1994.
7. The respondent has controverted the payment of workers’ compensation benefits in this claim in its entirety.

[17] Therefore, after a de novo review of the entire record, and for the reasons discussed herein, it is our opinion that the Administrative Law Judge’s decision is supported by a preponderance of the credible evidence, that the findings of fact made by the Administrative Law Judge are correct, and the decision of the Administrative Law Judge must be, and hereby is, affirmed.

[18] All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).

[19] For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 to be paid one-half by claimant and one-half by respondent. Ark. Code Ann. § 11-9-715 (a)(2)(B) and (b)(2) (Repl. 1996).

[20] IT IS SO ORDERED.

ELDON COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[21] Commissioner Wilson dissents.

[22] DISSENTING OPINION
[23] I respectfully dissent from the majority’s opinion finding that the claimant has proven by a preponderance of the evidence that she sustained a rapid repetitive injury. Based upon my de novo review of the entire record, I specifically find that the claimant has failed to meet her burden of proof.

[24] The claimant contends that her bilateral carpal tunnel syndrome arose out of and in the course and scope of her employment. The claimant began working for respondent employer in 1992. The claimant is classified as a laborer and performs several different job tasks. According to the claimant, in the spring of 1994 she began to experience tingling in her right arm. The claimant was treated and examined by Dr. Barry Thompson in August of 1994. Dr. Thompson’s August 17, 1994 medical report states:

C/o of her right hand going numb and spreading up the elbow at times, worse over the past 3 wks. has been bothering her off and on over the past yr. Her job involves putting bands around box cars, they call it car bracing which involves a lot of wrist action and repetitive motion to the right writs. Also core cutting. . . . When I just touch the Median Nerve in the right wrist it sends shocks down, when I put pressure on it it brings on her symptoms. IMP: carpal tunnel syndrome likely due to her repetitive motion in her job. . . .

[25] The claimant was referred to Dr. Giller who performed carpal tunnel release surgery on her right hand and eventually on her left hand.

[26] After reviewing the evidence in this case impartially, and without giving the benefit of the doubt to either party, I find that claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury while employment be respondent. Even if one were to assume that the other four requirements for establishing a compensable injury have been met, the claimant has failed to prove by a preponderance of the evidence that her injury was caused by rapid repetitive motion. The claimant has failed to offer sufficient credible evidence indicating that her job required both rapid and repetitive motion. Although the claimant described her activities as repetitious, there is nothing in the record to prove that the activities were, in fact, repetitious and rapid. I also note that the majority has assumed a finding of rapid motion, since no specific finding of such was made.

[27] With regards to the core cutting job, the claimant described the job as positioning cores on the machine, hitting a button, with the machine doing all the cutting. Once the cores were cut, the claimant removed the cores from the machine and stacked them on the floor. The claimant would then put a plug inside each of them, loaded them onto a buggy and carried them to the winder. After completing this process, the claimant began all over again with a new core. The very nature of this job description of performing several different tasks prohibits it from falling with the definition of rapid movement. Claimant failed to prove by a preponderance of the evidence that the core cutting involved a notably high rate of activity.

[28] The claimant also contends that the car bracing duties which consists of about thirty percent of her time contributed to her carpal tunnel syndrome. The car bracing involves the use of a power saw, a pneumatic nail gun, an automatic bander and a crimping machine.

[29] The only hand or wrist motion involved with this task was to be pushing a level with the thumb. This process is repeated for each band placed upon the railcar. When asked how long it would take to band a railcar the claimant stated, “And like I say, if you’ve got six bands in there, it may not take you but a few minutes to tighten them up. If you got thirty-two bands in there, you’re there awhile, especially when you’re climbing up and down a six foot ladder to get to the top of that car.” Again, the very description of this job may sound tedious but it fails to fall within the definition of rapid movement. By the claimant’s own admission, intertwined with the tasks of banding and crimping is the climbing up and down of a ladder to retrieve tools. The banding could not be performed at a notably high rate of speed since she had to stop her banding activities to climb up and down ladders.

[30] Finally, the claimant contends that the utility work behind the machine contributed to her carpal tunnel syndrome. This job is described as cutting the paper with a knife until all the damaged paper was removed from the roll. The claimant stated, “Not all the time you just don’t peel it off and let it fall. Sometimes you have to pull and tug and push until you get it off.” Thus, the claimant’s own description of the job involves activities which remove the job from being rapid and repetitive.

[31] The claimant’s description of her work, coupled with the description of the work by Dr. Mamdouh M. Bakr, a certified mechanical and industrial engineer, clearly shows that the claimant’s job is not rapid and repetitive work. Even if we assume that the job is repetitive under theBaysinger standard, it is not rapid. The utility job cumulatively does not involve rapid repetitive motion since each worker is allowed to perform the job at their own pace. Dr. Bakr testified, “They move around and they pretty much literally actually do the, kind of job as they go along, so it’s not a definite step by step that a person has to regimentally go through to perform the particular job.” Finally, when specifically asked if each of the individual jobs performed by the claimant required rapid and repetitive motion, Dr. Bakr unequivocally respondent no.

[32] Consequently, after my de novo review of the entire record, I find that the claimant has failed to prove by a preponderance of the credible evidence that her injury is the result of rapid and repetitive motion.

[33] Even if I were to concede that the claimant has proven by a preponderance of the evidence that her job duties consisted of rapid repetitive movement, I specifically find that the claimant has failed to prove that her work activities were the major cause of her carpal tunnel syndrome. Under the amended law, “major cause means more than fifty percent of the cause.” In addition, a finding of “major cause shall be established according to the preponderance of the evidence.” The only evidence submitted by the claimant which addresses causation is a note in Dr. Thompson’s records that carpal tunnel syndrome was likely due to her repetitive motion in her job. This statement fails to rise to the level of required proof. Moreover, since this statement addresses compensability, it must be stated within a reasonable degree of medical certainty. Ark. Code Ann. § 11-9-102 (16). The words “impression” and “likely” simply do not meet this standard Moreover, there is no evidence in the record that Dr. Thompson was ever made aware of the actual job duties performed by the claimant. Dr. Thompson’s comment regarding causation is merely based upon a report of the claimant’s activities as provided to him by the claimant. The Commission is not bound by a doctor’s opinion which is based largely on facts related to him by a claimant where there is no sufficient independent knowledge upon which to corroborate claimant’s claim. Roberts v. Leo-Levi Hospital,8 Ark. App. 184, 649 S.W.2d 402 (1983). In my opinion, a preponderance of the evidence does not satisfy the major cause requirement. Therefore, for those reasons stated herein, I respectfully dissent from the majority opinion.

[34] MIKE WILSON, Commissioner