CARTER v. WHIRLPOOL CORPORATION, 1995 AWCC 166

CLAIM NO. E410827

MICHAEL CARTER, EMPLOYEE, CLAIMANT v. WHIRLPOOL CORPORATION, SELF INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 14, 1995

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

Claimant represented by the HONORABLE ASA HUTCHISON, Attorney at Law, Fort Smith, Arkansas.

Respondents represented by the HONORABLE ROBERT L. JONES, Attorney at Law, Fort Smith, 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 November 14, 1994. In that opinion and order, the administrative law judge found that the claimant sustained a compensable injury. After conducting a de novo review of the entire record, we find that the administrative law judge’s decision must be affirmed.

[3] The claimant began working for the respondent employer in 1973, and he worked in the respondent employer’s tool room. The claimant suffers from an arthritic condition known as Marie-Strumpell disease, and in 1977, when he was approximately 28 years old, a left hip replacement was performed on the claimant. According to the claimant’s testimony, he was advised at the time of this surgical procedure that the prosthesis should last 20 to 25 years. [4] On June 6, 1993, the claimant suffered a dislocation of the femoral component of the prosthesis. According to his testimony, the respondent employer had asked for volunteers throughout the plant to take classes in CPR, and they encouraged employees in each department to take the classes. The classes were offered at the plant during the employees’ shift, and the employees were fully compensated during the time they were involved in the CPR training. The claimant testified that he volunteered for the classes because no one else in the tool room knew CPR or was volunteering for the class. He also testified that he was bending over the CPR dummy, on both knees, with his face approximately six inches off the ground, when he experienced a peculiar sensation, and he could not get up. He had to have assistance getting up, and he was taken to the emergency room. At the emergency room, he was advised that surgery for a left hip joint repair would be necessary. On July 8, 1994, the left hip prosthesis was surgically replaced by Dr. Marvin Mumme. [5] Dr. Mumme testified that the surgery revealed that the polyethylene bearing insert in the original prosthesis had fractured, and he testified that such fractures were a common complication with such prothesis, especially with patients living active lives such as the claimant. Dr. Mumme also testified that the average life expectancy of the claimant’s original prothesis for a person with the claimant’s activity level was 10 years. Dr. Mumme also acknowledged that the original was inevitably going to fail at some point, and he testified that the reports of Dr. James Buie indicated that the prosthesis was in the process of failing prior to the July 6, 1994, incident. In this regard, Dr. Buie first saw the claimant at the hospital, and his report states that the claimant had noticed increased looseness and other problems with the prothesis during the previous six months. Dr. Mumme testified that the major cause of the failure of the prothesis was the fact that it had simply worn out. However, Dr. Mumme also testified that hyperflexed position that the claimant was in at the time results in tremendous pressure on the hip joint in a manner which is consistent with the dislocation suffered by the claimant. [6] 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 present 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). Since the claimant in the present claim alleges that he sustained an injury as a result of a specific incident which is identifiable by time and place of occurrence, the requirements of Ark. Code Ann. § 11-9-102
(5)(A)(i) (Cumm. Supp. 1993) are controlling, and 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 (see, Ark. Code Ann. § 11-9-102
(5)(A)(i) (Cumm. Supp. 1993); Ark. Code Ann. § 11-9-102 (5)(E)(i) (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 or accidental injury to prosthetic appliances which required medical services or resulted in disability or death (see, Ark. Code Ann. § 11-9-102 (5) (A)(i) (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 a specific incident and is identifiable by time and place of occurrence (see, Ark. Code Ann. § 11-9-102 (5)(A)(i) (Cumm. Supp. 1993)).

[7] If the claimant 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. [8] In the present claim, the preponderance of the evidence establishes that the claimant’s hip prosthesis broke as the result of a specific incident which occurred on July 6, 1994, while he was kneeling during a CPR class offered by the respondent employer on its premises during the shift of the claimant. In addition, this injury required medical services and resulted in disability, and the injury is supported by objective medical findings. While the evidence indicates that routine wear was the major cause of the prosthesis failure, proof of compensability under the amended law does not require a showing that the employment was the major cause of injuries resulting from specific incidents identifiable time and place of occurrence. [9] In addition to satisfying the requirements necessary to establish one of the five categories of injury recognized by the new law, the claimant must show that he was not engaged in an activity which the amended law excludes from the definition of compensable injury. See, Ark. Code Ann. §11-9-102 (5)(B) (Cumm. Supp. 1993). In this regard, the amended law provides the following exceptions from the definition of “compensable injury:

(1) injuries received by active participants in an assault or combat are excluded from the definition of “compensable injury” if the assault or combat is the result of nonemployment-related hostility or animus of one, both, or all of the combatants and if the assault or combat was a deviation from customary duties [Ark. Code Ann. § 11-9-102 (5)(B)(i)];
(2) injuries received during horseplay, except as to innocent victims [Ark. Code Ann. § 11-9-102
(5)(B)(i)];
(3) injuries occurring while engaging in recreational or social activities for the employee’s own pleasure [Ark. Code Ann. § 11-9-102
(5)(B)(ii)];
(4) injuries occurring at a time when employment services are not being performed [Ark. Code Ann. § 11-9-102 (5)(B)(iii);
(5) injuries occurring before the employee was hired or after the employment relationship was terminated [Ark. Code Ann. § 11-9-102 (5)(B)(iii).

[10] In the present claim, the respondents contend that the claimant was not performing an employment service when he was injured. However, we find that a preponderance of the evidence establishes that he was performing an employment service. Although he was not performing duties regularly associated with his usual job as a tool and dye maker, an employee obviously can serve his employer by performing duties of an extraordinary nature which are performed on a one time basis or a periodic basis. Moreover, the fact that employees volunteer to perform such extraordinary duties does not diminish the fact that they are providing a service to the employer. In the present claim, although the respondent employer solicited employees to volunteer for participation in the CPR classes, the claimant’s testimony indicates that the respondent employer wanted to have employees in all areas of the plant that were familiar with CPR, and his decision to volunteer was based, at least in part on the fact that no other employee in his department knew CPR or was volunteering to take the classes. Certainly, the respondent employer has an interest in the welfare of its employees when they are at work, and the respondent employer sought to promote this interest by taking steps to assure that employees trained in CPR were located in all areas of the plant. The respondent employer’s interest in achieving this goal is demonstrated by the fact that the training was provided at the respondent employer’s plant during the claimant’s regular working hours and by the fact that he was fully compensated for the time he spent participating in these training sessions. Therefore, we find that the claimant was providing a service to the respondent employer at the time this injury occurred by taking training necessary to gain the skills needed for the respondent employer to achieve its goal. [11] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant has proven by a preponderance of the evidence that he sustained a compensable injury. Therefore, we find that the administrative law judge’s decision must be, and hereby is affirmed, and the respondent is directed to comply with the award contained in the administrative law judge’s opinion. In reaching this decision, we also note that the respondents are entitled to a credit for any benefits paid out of a group insurance policy. [12] 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
(1987). 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 in accordance with Ark. Code Ann. § 11-9-715 (b) (1987). [13] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner

[14] Commissioner Tatum dissents.