CLAIM NO. E603757
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 1, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas
Claimant appeared Pro Se.
Respondents represented by the HONORABLE PHILLIP CUFFMAN, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
[1] OPINION AND ORDER[2] The respondents appeal an opinion and order filed by the administrative law judge on September 15, 1997. In that opinion and order, the administrative law judge found that the claimant proved by a preponderance of the evidence that she sustained a compensable injury on March 6, 1996. After conducting a de novo
review of the entire record in this case, we find that the administrative law judge’s decision must be reversed. [3] The claimant has alleged that she suffered two injuries while working for the respondents. The claimant has contended that the first injury occurred on March 27, 1995, and the second injury was on March 6, 1996. [4] At the time these injuries occurred, the claimant’s job duties involved the transportation of coins between banks and the Federal Reserve Board. The claimant alleged that the activities involved in carrying the bags of coins, and otherwise working with them, injured her right arm. The respondents contend that there is no objective medical findings to support the existence of an injury. [5] The administrative law judge found that the claimant had established the occurrence of a compensable injury and ordered the respondents to provide the claimant appropriate benefits, including medical care and a period of temporary disability. From the administrative law judge’s decision, the respondents have filed this appeal. [6] The first issue to be addressed is whether there is any objective findings to support the occurrence of an injury. A.C.A. § 11-9-102(5)(D), requires that a compensable injury be established by medical evidence supported by objective findings. Objective findings are those findings that cannot come under the voluntary control of the patient. See A.C.A. § 11-9-102 (16). [7] After her injury in March 1995, the claimant was seen by Dr. C. E. Ballard, a general practitioner in Little Rock, Arkansas. The record contains two progress notes from Dr. Ballard on his treatment of the claimant. These progress notes are dated April 6, 1995 and April 13, 1995. In those notes, Dr. Ballard diagnosed the claimant as suffering from a strained right bicep and overuse of the right upper extremity. Based upon our review of those progress notes, it appears that Dr. Ballard was basing that diagnosis on the claimant’s complaints of pain as well as tenderness and tightness in her right arm. We do not note any objective findings set out in Dr. Ballard’s notes. Therefore, it does not appear that there was any objective medical finding sufficient to support the occurrence of a compensable injury in March 1995. However, this finding may well be moot since the claimant indicated during her testimony that Dr. Ballard’s bills had been paid by the respondents and that she did not miss any work because of this injury. [8] The claimant has an alleged injury date for the second injury of March 6, 1996. The claimant was treated for this alleged injury by Dr. Scott Carle, a general practitioner in Little Rock, Arkansas. Dr. Carle’s progress note dated March 25, 1996, stated that the claimant was complaining of pain in both arms. After physically examining the claimant, Dr. Carle made the following notation, “Examination of the musculature reveals hypertrophy and well demarcated triceps brachii lateral heads.” Dr. Carle goes on to diagnose the claimant as suffering from activity intolerance and myositis of the bilateral triceps brachii. [9] Hypertrophy is defined as the morbid enlargement or overgrowth of an organ in part due to an increase in growth of its constituent cells. See Dorland’s Illustrated Medical Dictionary, 24th Edition. Dorland’s defines myositis as an inflammation of a voluntary muscle. Therefore, Dr. Carle’s progress note of March 25, 1996, does contain an objective finding that could support the existence of a compensable injury asserted by the claimant. [10] However, even if an objective basis for an injury does exist, that does not mean that the claim is automatically compensable. The claimant still must meet her burden of proof in establishing the existence of the other essential components of a compensable injury in order to receive benefits. [11] Therefore, the next issue is whether or not the claimant is alleging a specific incident injury or a nonspecific incident injury. In her testimony, the claimant stated that her job required her to frequently lift bags of coins weighing 50 to 55 pounds. However, the testimony at the hearing did not make it clear as to whether the claimant was asserting that her injury was attributable to a specific incident on March 6, 1996, or whether her condition was one which had gradually developed until it required her to stop working on that date. However, both Dr. Carle and Dr. Ballard had found that the claimant was suffering from overuse syndrome. Significantly, in a progress note that is undated and unsigned but appears to be from Dr. Carle relating to the claimant’s injury of March 1996, it is stated, “Patient who has had some arm discomfort and muscular hypertrophy secondary to overuse the last several years.” [12] We find that the claimant’s alleged injury is governed by the section of the Workers’ Compensation Act that deals with nonspecific injuries. That finding is based upon the fact that the history relied upon by the claimant’s physicians generally relates to a gradual onset type of injury that would develop over a significant length of time. Also, during her testimony, the claimant did not relate her injury to any specific event or lifting incident that caused her problems. Rather, the claimant’s testimony focused upon her job requirements of frequently lifting and carrying bags of coins weighing 50 to 55 pounds and other incidents of heavy lifting. For those reasons, we find that the claimant is alleging a nonspecific injury governed by A.C.A. §11-9-102(5)(A)(ii). [13] Since the claimant is alleging a nonspecific injury, it must be determined whether the claimant has met the requirements of a nonspecific incident injury as set out in A.C.A. §11-9-102(5)(A)(ii). Pursuant to that section, in order to receive benefits the claimant must establish that the injury sustained caused internal or external harm to her body and arose out of and in the course of her employment. The claimant must also prove that the injury was caused by rapid, repetitive motion and that the compensable injury is the major cause for the disability or need for treatment. [14] According to the claimant’s testimony, her work week consisted of Mondays, Tuesdays, and Wednesdays. On those days, the claimant stated that her hours varied considerably. She stated that her work day frequently lasted 12 hours or more, and on one occasion, required her to work for 21 straight hours. The claimant’s description of her job duties indicated that she would travel with a co-employee to the Federal Reserve Bank in Little Rock, Arkansas, pick up coins, and return with them to her employer’s place of business. After returning, the claimant was involved in the sorting and packaging of the coins, and she would then assist with their delivery to local banks. [15] Under the above facts, it may be arguable as to whether the claimant established by a preponderance of the evidence that she experienced an injury or medical condition arising out of the course of her employment. However, even if such was the case, the claimant must still establish that her job involved rapid repetitive motion. [16] When determining whether or not a job requires an individual to engage in rapid and repetitive motion, the totality of the job must be considered and it must be determined whether the worker is required to perform the job swiftly or quickly. See Kildow v.Baldwin Piano and Organ, 58 Ark. App. 194, 948 S.W.2d 100 (1997),Baysinger v. Air Systems, Inc., 55 Ark. App. 174, 934 S.W.2d 234
(1996). After considering all aspects of the claimant’s job duties as described by her, we do not see any indication that her job involved rapid repetitive motion to any extent whatsoever. While her job was undoubtedly strenuous at times, it simply did not require her to engage in any activity which was repetitious or which was required to be performed swiftly or quickly. Rather, the claimant’s job seemed to require her to act in a slow and steady manner, apparently at her own pace. Compare, Lay v. UnitedParcel Service, 58 Ark. App. 35, 944 S.W.2d 867 (1997). [17] We therefore hold that the claimant did not establish, by a preponderance of the evidence that her job involved rapid repetitive motion. On that basis, her claim for benefits is respectfully denied and dismissed and the decision of the administrative law judge is reversed. [18] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[19] Commissioner Humphrey dissents.