EDWARDS v. COOPER TIRE RUBBER COMPANY, 1996 AWCC 307

CLAIM NO. E416571

JEWELL EDWARDS, EMPLOYEE, CLAIMANT v. COOPER TIRE RUBBER COMPANY, SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 5, 1996

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

Claimant represented by the HONORABLE PAUL MILLER, Attorney at Law, Texarkana, Arkansas.

Respondents represented by the HONORABLE WILLIAM BULLOCK, Attorney at Law, Texarkana, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The respondent appeals an opinion and order filed by the administrative law judge on December 29, 1995. In that opinion and order, the administrative law judge found that the claimant is entitled to compensation for his carpal tunnel syndrome. After a de novo review of the entire record, we find that the claimant proved by a preponderance of the evidence that he sustained a compensable injury. Therefore, we find that the administrative law judge’s decision must be affirmed.

[3] The claimant began working in the respondent’s tire manufacturing plant in 1976. Since that time, his duties have consisted primarily of loading and unloading tires onto and off of conveyor belts. The claimant began having pain and difficulties with his right hand in September of 1994, and the respondent referred the claimant to Dr. Craig Ditsch, a general practitioner. A subsequent nerve conduction study performed by Dr. Nancy Griffin indicated moderate carpal tunnel syndrome in the claimant’s right upper extremity, and Dr. Mark Young performed a carpal tunnel release in October of 1994. [4] Since the claimant contends that he sustained a compensable 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, 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 rapid and 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:

(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)).

[5] In the present claim, objective medical findings, including Dr. Griffin’s nerve conduction study and Dr. Young’s surgical observation of an inflamed median nerve, both indicate that the claimant has sustained internal physical harm caused by carpal tunnel syndrome. [6] Furthermore, we find that the preponderance of the evidence establishes that the claimant’s injury was caused by rapid and repetitive motion which arose out of and in the course of his employment. As we explained in Richard E.Throckmorton v. J J Metals, Full Workers’ Compensation Commission, Aug. 14, 1995:

Act 796 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, 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). The term “repetitive” is commonly used for the act of doing the exact same thing again and again. Id. Thus, we find 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. 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 presented 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.

[7] In the present claim, the claimant worked for the respondent employer as a buffer serviceman for approximately 18 years prior to sustaining carpal tunnel syndrome in the right upper extremity in 1994. The primary duty of a buffer serviceman is to either load unbuffed tires from a rack onto a conveyor leading to the buffer equipment, or to load buffed tires onto a rack as they come down a conveyor after buffing. The claimant testified that during the period preceding his right wrist problems, he handled approximately 4000 tires per shift, or roughly 500 to 600 tires per hour. [8] A videotape prepared by the respondent on November 10, 1995, shows that the tires are placed flat on their side on the conveyor belt and the tires are also stacked flat on their side on the racks used to transport the tires to and from the buffer conveyor belt. The claimant testified that, in order to lift and move a tire before his injury, he would reach down from above and grasp the tire around the inside edge with his right hand, and then pick the tire up bearing the weight of the tire with his right hand using his left hand to guide the tire from the rack to the conveyor (or from the conveyor to the rack). The same right wrist, hand, and arm motion was required to lift a tire off of the conveyor and place it on a rack as was required to lift a tire off of the rack and place it on a conveyor. Moreover, after reviewing the claimant’s testimony, a videotape prepared by the respondent, and all other evidence properly in the record, we find that the claimant’s primary responsibility, lifting and loading 500 — 600 tires per hour involved the exact same or almost exactly same motion of the upper right extremity again and again over extended periods of time. [9] In reaching our decision, we note that the respondent’s assert that a videotape prepared on November 10, 1995, indicates that the claimant did not engage in rapid and repetitive work prior to his injury in September of 1994. In this regard, the videotape introduced by the respondent contains approximately 36 seconds of footage of the claimant engaged in loading two conveyors, and 76 seconds of footage of another individual engaged in unloading four conveyors. However, we find that 36 seconds of video of the claimant’s activities on November 10, 1995, (long after his right carpal tunnel release), is entitled to very little weight in determining whether the claimant engaged in rapid motion or repetitive motion with the right upper extremity as a buffer serviceman before his 1994 carpal tunnel release surgery. [10] In assessing the weight to be accorded the 76 seconds of activities performed by the claimant’s co-worker in the respondent’s videotape, we note that this individual filmed is relatively large built. In addition, we note that he unloads tires using only one hand (using both the right hand and the left hand) and using a number of variations suggesting that he does not handle tires in a repetitive manner. However, even if this 76 seconds of video accurately portrays the multiple techniques that thisindividual uses to handle tires, we note from the video that the claimant is older and of a smaller build than his co-worker, and we find that the various techniques used by this larger co-worker in handling tires have extremely little relevance to the type of motion that the claimant used prior to his 1994 injury. Therefore, for the reasons discussed herein, we find that the respondent’s video is largely irrelevant and is entitled to little weight, and we find that the claimant proved by a preponderance of the evidence that his injury was caused by rapid and repetitive motion of the right upper extremity. [11] We also find that the evidence establishes that the claimant’s work-related activities were the major cause of his injury. In that regard, the record indicates that Dr. Ditsch followed the claimant for a swollen left wrist and hand in 1993, and Dr. Ditsch opined as early as May 26, 1993, before the right side problems developed, that the claimant should find other work where he would not be required to perform the wrist flexion and extension required of a buffer serviceman. The medical record indicates that the claimant’s 1993 problems in the left upper extremity apparently resolved through conservative care, although the subsequent right side problems ultimately developed into carpal tunnel syndrome. Dr. Young, the surgeon who performed the claimant’s right carpal tunnel release, also opined in a letter dated April 14, 1995, that the hypertrophy he observed in the claimant’s palmaris brevis muscle and in the claimant’s transverse carpal ligament were related to and secondary to the repetitive work-related tasks required of his upper extremities. In a prior office note dated February 23, 1995, Dr. Young opined that the work-related disturbance was responsible for greater than 51% of the claimant’s carpal tunnel syndrome. [12] Therefore, after a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant proved by a preponderance of the evidence each of the elements necessary to establish a compensable injury. Therefore, we find that the administrative law judge’s decision must be, and hereby is, affirmed. [13] 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). [14] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner

[15] Commissioner Holcomb dissents.

[16] DISSENTING OPINION
[17] I respectfully dissent from the majority’s opinion finding that the claimant sustained a rapid repetitive motion injury and finding that claimant’s job duties were the major cause of his disability or need for treatment. Based upon my de novo review of the entire record, I find that claimant has failed to meet his burden of proof. Thus, I cannot agree with the majority’s findings.

[18] In my opinion, the claimant’s job duties were not rapid and repetitive as we have defined that term inThrockmorton v. J J Metals, FC Opinion, August 14, 1995 (E405318). The majority relies upon the sheer number of tires handled by the claimant in reaching their decision. However, this overlooks the actual motions involved in handling the tires. All claimant had to do all day long was move tires from a rack onto a conveyor belt or vice-versa. The evidence reveals that claimant was able to perform these duties and meet his production numbers without resorting to rapid repetitive movements. Even if we disregard the videotaped evidence of claimant’s co-worker performing the same duty as claimant, the videotape does depict the claimant moving tires from the conveyor belt onto the rack. Claimant’s movement of tires is sporadic and is interrupted with pushing and pulling the pallet to and from the conveyor belt. Moreover, the videotape shows the claimant standing around and waiting. Such delay and hesitation in claimant’s job duties, in my opinion, removes claimant’s duties from the definition of rapid repetitive movement. [19] Moreover, I cannot find that the claimant has failed to prove that his job duties were the major cause of his need for treatment. The claimant and the Administrative Law Judge rely upon Dr. Young’s February 23, 1995 report which states: “The patient is one that had a pularis brevis so I am sure he had a larger component of work related disturbance responsible for his carpal tunnel syndrome greater than 51%.” However, this report conflicts with Dr. Young’s February 23, 1995 correspondence to Cooper’s claim representative which states: “The patient was noted on operation to have an anatomic variant, including a pularis brevis muscle, which was probably the reason he had carpal tunnel syndrome secondary to hypertrophy of the muscular fascicles and subsequent ongoing compression.” In light of these conflicting reports, I cannot find that the major cause requirement has been met. Therefore, I respectfully dissent from the majority opinion. [20] ALICE L. HOLCOMB, Commissioner