GOODWIN v. FAYETTEVILLE HILTON, 1998 AWCC 91

CLAIM NO. E600633

STACEY GOODWIN, EMPLOYEE, CLAIMANT v. FAYETTEVILLE HILTON, EMPLOYER, RESPONDENT, FIREMAN’S FUND, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 9, 1998

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

Claimant represented by the HONORABLE RONALD McCANN, Attorney at Law, Fayetteville, Arkansas.

Respondent represented by the HONORABLE CONSTANCE CLARK, Attorney at Law, Fayetteville, Arkansas.

[1] ORDER
[2] This case comes before the Full Commission on remand from the Arkansas Court of Appeals.

[3] In an opinion filed July 12, 1996, an administrative law judge found that claimant failed to prove her carpal tunnel syndrome was caused by rapid and repetitive motion. Claimant appealed to the Full Commission. The Full Commission affirmed the administrative law judge’s decision and adopted her findings in an opinion filed November 18, 1996. Claimant appealed to the Court of Appeals. The Court reversed the Full Commission and remanded the claim in an opinion delivered October 8, 1997. The Court did so because the Commission applied a test for rapid repetitive motion that the Court “expressly disavowed” in Baysinger v. AirSys., Inc., 55 Ark. App. 174 (1997) subsequent to our prior decision in this case. Prior to the Court’s decision inBaysinger, this Commission applied an overly restrictive definition of the term “repetitive”, in finding that the claimant’s multiple job tasks could not be considered together to satisfy the statutory definition of “rapid repetitive motion.”

[4] After reviewing the entire record de novo, and in light of the statutory interpretation indicated by the Court of Appeals inBaysinger, supra, we find that the claimant proved, by a preponderance of the evidence, that she sustained a compensable injury caused by rapid repetitive motion.

[5] The claimant contends that she sustained an injury after July 1, 1993. Arkansas Workers’ Compensation Law, as amended by Act 796 of 1993, thus controls this claim. To establish compensability, 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 AgraFrozen 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. Rather, she contends that she sustained an injury as a result of repetitive motion. Consequently, she must satisfy the following requirements of Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) (Repl. 1996):

(1) proof by a preponderance of the evidence of an injury arising out of and in the course of her 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)).

[6] In assessing whether the claimant’s multiple job tasks in the respondents’ laundry facility, considered together, required “repetitive” motion, we note that the evidence indicates that the claimant began working for respondent-employer in September, 1992. In September or October, 1993, she assumed various duties involving the hotel’s laundry. The claimant was responsible for loading and unloading two industrial washers (each approximately twice the capacity of a home washer) and three industrial dryers that operated on 15-30 minute cycles. In addition to the loading and unloading duty, the claimant was required to sort incoming dirty linens, operate a press machine, fold clean and pressed linen, and clean up (sweep up). The claimant testified that she was constantly extending her arms and fingers, closing her hands, grasping items, and pulling and placing laundry into the washers, dryers, or an ironer. The claimant began having problems with her hands and arms, and her condition worsened around October, 1995. She was ultimately diagnosed as having bilateral carpal tunnel syndrome. Said diagnosis was entered with the assistance of electrodiagnostic testing, and the claimant’s physician attributed the claimant’s condition to claimant’s work duties.

[7] The claimant and two co-workers testified regarding respondent-employer’s job requirements. Claimant worked in the laundry from September, 1993 until February, 1996. Her day started at 8:00 a.m. Upon arrival, she would grab 30 gallon plastic bags and pull them into the laundry. She would take the linens out of the bags and fill two industrial washers. She would then load wet linens into three dryers. After starting the washers and dryers, she would sort towels and sheets. Throughout the workday, a continuous cycle occurred of sorting linens, putting them in the washers, removing them, placing the linens in the dryers and removing them for folding or pressing. The usual workday ended at 4:30 p.m.

[8] The claimant said she began noticing problems with her hands after starting work in the laundry, but her condition did not worsen until October, 1995. At that time, she experienced numbness, swelling, aching, and weakness in her hands. Sheets, towels, pillow cases, wash cloths, and table cloths had to be washed every day, and all these items had to be sorted, washed, dried, folded, and some pressed. The claimant credibly testified that this activity continued throughout the workday. At the hearing, a co-worker, Cindy Davis, corroborated the claimant’s description of the pace of the work required:

[9] Q. And how would you describe the pace or the speed of having to do all this work?

[10] A. Very rapid.

[11] Q. How does it compare with, let’s say, doing your laundry at home?

[12] A. It doesn’t compare. It’s just very fast. I mean, you have all the time in the world at home and you can take your time. Here in the laundry room for the Hilton, I mean, you were pressed to get things out. The room had to be ready to go and the meeting rooms had to be right on time. You had — all of these things were scheduled and all that you knew was that you had to get them out as quick as you could.

* * *
[13] Q. And at what pace would you estimate you do it?

[14] A. Fast. I mean, really a lot of — almost all of the time rapidly fast, I mean.

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[15] Q. As far as speed goes, how would it compare?

[16] A. A lot more — I mean, it’s a lot more faster and rapid. I mean, it’s just all the time stuff. Like at home you can sit down and rest, do what you want to. I mean, you don’t have to be right there constantly doing something.

[17] After considering the testimony of the claimant and the corroborating testimony of co-worker Cindy Davis and Candy Reed, we find that the claimant’s varied work duties, which all required extending the arms and fingers, grasping and pulling, involved rapid and repetitive motion. In addition, we note that Dr. Heinzelman opined on February 14, 1996 that, in his opinion, there was no question that the claimant’s carpal tunnel syndrome was causally related to her work activities involving repetitive gripping and heavy lifting with both hands. We also note that the claimant’s injury was confirmed by “objective” diagnostic nerve conduction testing. Consequently, we find that the claimant proved by a preponderance of the evidence that she sustained a compensable injury.

[18] In reaching out decision on the rapid and repetitive nature of the claimant’s work duties in the laundry room, we note that a third co-worker (the claimant’s supervisor), testified that he generally permitted the laundry room employees (the claimant had helpers from time to time) to work at their own pace and that he permitted the laundry room employees to take unscheduled cigarette breaks on occasion. However, in assessing the possible inference from this testimony that the claimant did not pursue her duties at a “rapid” pace, we note that nothing in the record suggests thatthe claimant was one of the smokers indicated by the supervisor or that the claimant took unscheduled breaks. Likewise, after considering the nature and extent of the claimant’s job duties as corroborated by co-workers, we are not persuaded that “permitting” the claimant to “work at her own pace” did not require the claimant to engage in essentially constant hand-intensive (rapid) motions. The testimony of Ms. Davis indicates that the claimant was a highly dedicated employee, and the fact that the claimant received help from time to time also indicates that the claimant’s job duties required a “rapid” pace. Moreover, based on the evidence in the record, we find that the preponderance of the record establishes that the claimant’s work duties were “rapid” as well as repetitive. Compare, Lay v. United Parcel Service, 58 Ark. App. 35, 944 S.W.2d 867 (1997) to Kildow v. Baldwin PianoOrgan, 58 Ark. App. 194, 948 S.W.2d 100 (1997), review granted, No. 97-828 (Ark. Sept. 11, 1997)

[19] We also find that the claimant is entitled to temporary total disability benefits from March 20, 1996, through a date yet to be determined. This Commission determines temporary disability by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that she is within her healing period and totally incapacitated to earn wages. Arkansas State Highway andTransportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Ark. Code Ann. § 11-9-102(13) (Repl. 1996) defines “healing period” as that period for healing of an injury resulting from an accident. The healing period continues until the employee is as far restored as the permanent character of her injury will permit. When the underlying condition causing the disability becomes stable, and when nothing further will improve that condition, the healing period has ended. The claimant is no longer entitled to receive temporary total disability compensation, regardless of her physical capabilities. Moreover, persistent pain does not suffice, in itself, to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).

[20] In the present case, on March 20, 1996, the claimant’s physician took her off work until further notice with a recommendation for bilateral carpal tunnel releases. Those procedures were never performed prior to the hearing. We therefore find that the claimant is entitled to temporary total disability benefits from March 20, 1996 until a date yet to be determined.

[21] Accordingly, based on our 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, that she sustained a compensable injury caused by rapid repetitive motion. We also find that the claimant is entitled to medical benefits and temporary total disability benefits from March 20, 1996 to a date yet to be determined.

[22] 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).

[23] In addition, we find that the claimant’s attorney is entitled to an attorney’s fee at the maximum statutory rate on the benefits awarded herein.

[24] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[25] Commissioner Wilson dissents.

[26] DISSENTING OPINION
[27] I respectfully dissent from the majority opinion finding that claimant sustained compensable carpal tunnel syndrome. Based upon my de novo review of the entire record, I find that claimant has failed to meet her burden of proof. In my opinion, the evidence presented by claimant fails to rise to the level of proof necessary to prove rapid repetitive motion is the major cause of claimant’s carpal tunnel syndrome. Although this case was remanded by the Arkansas Court of Appeals relying on its decision inBaysinger v. Air System, Inc., 55 Ark. App. 174, 934 S.W.2d 230
(1997), when I review this claim in light of the Court of Appeals decisions to address the term rapid in the phrase rapid repetitive motion it is my opinion that claimant has failed to meet her burden of proof. See Lay v. United Parcel Service, 58 Ark. App. 35, 944 S.W.2d 867 (1997) and Kildow v. Baldwin Piano and Organ, 58 Ark. App. 194, 948 S.W.2d 100 (1997). In Kildow, the majority opinion defined the term rapid in its ordinary everyday meaning to be “quick or swift”. The evidence in this case reveals that claimant was allowed to set her own pace in performing her duties in the laundry room, that she was not under a quota, nor in an assembly line setting where she would have to perform her duties at a set swift speed. Constant speed is not the equivalent of rapid, swift or quick. I find nothing in the description of claimant’s work in the laundry room which can rise to the level of rapid movement. Therefore, I respectfully dissent from the majority opinion.

[28] MIKE WILSON, Commissioner