CLAIM NOS. E710519 E709978
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 7, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by MICHAEL HAMBY, Attorney at Law, Greenwood, Arkansas.
Respondent #1 represented by JOSEPH KILPATRICK, JR., Attorney at Law, Little Rock, Arkansas.
Respondent #2 represented by JOSEPH PURVIS, Attorney, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed
[1] OPINION AND ORDER[2] Claimant appeals from the amended opinion of the Administrative Law Judge filed May 7, 1998, finding that claimant failed to prove by a preponderance of the evidence that his right knee problems are compensable or that he is entitled to any additional benefits. Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof. Therefore, we find that the decision of the Administrative Law Judge must be affirmed. [3] At the hearing held on January 22, 1998, claimant contended that he sustained a compensable injury to his right knee as a result of rapid repetitive motion on or about December 26, 1996. Claimant further contended that after undergoing surgery, claimant sustained a new injury to his right knee on April 18, 1997. At the time of claimant’s first alleged compensable injury, Respondent No. 1 had coverage for respondent-employer’s employees. Respondent No. 1 controverted claimant’s alleged injury in its entirety. At the time of claimant’s alleged re-injury Respondent No. 2 had coverage for respondent-employer’s employees. Respondent No. 2 accepted the second incident as compensable and paid for claimant’s second surgery and temporary total disability benefits. However, Respondent No. 2 controverted claimant’s entitlement to a permanent partial impairment rating. [4] The first issue to be addressed is whether claimant sustained a compensable injury to his right knee on December 26, 1996. The claimant’s injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Ark. Code Ann. § 11-9-102 as amended by Act 796 of 1993. We have held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Act 796. Jerry D. Reed v. ConAgraFrozen Foods, F.C. Opinion filed Feb. 2, 1995 (E317744). The claimant does not contend that the injury is identifiable by time and place of occurrence. Indeed, the claimant contends that the injury is a rapid repetition motion injury. Consequently, in order to prevail on a rapid, repetitive motion claim, a claimant must prove by a preponderance of the evidence that he sustained an injury causing internal or external harm to the body which arose out of and in the course of his employment and which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(5)(A)(ii) and § 11-9-102(5)(E)(ii) (Supp. 1997). A claimant must also prove by a preponderance of the evidence that the injury was caused by rapid repetitive motion, and that the injury was the major cause of the disability or need for treatment. See Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) and §11-9-102(5)(E)(ii) (Supp. 1997). Finally, Ark. Code Ann. §11-9-102(5)(D) requires that a claimant must establish a compensable injury “by medical evidence supported by ‘objective findings’ as defined in § 11-9-102(16).” Ark. Code Ann. §11-9-102(5)(D) (Supp. 1997). See also Jean Carter v. Aid TemporaryServices, Inc., F.C. Opinion filed May 12, 1995 (E404813). [5] In Richard E. Throckmorton v. J J Metals, Full Workers’ Compensation Commission, Aug. 14, 1995 (Claim No. E405318), this Commission interpreted the term “rapid” 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. This Commission interpreted the term “repetitive” to refer to the exact same thing again and again. Consequently, this Commission interpreted the statutory requirement of “rapid repetitive motion” in Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) (Repl. 1996) to require 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 an extended period of time. Id. However, on numerous occasions, the Court of Appeals has held that the Commission’sThrockmorton statutory interpretation was too restrictive, and the Courts have provided the Commission guidance and precedent in several published opinions. See generally Baysinger v. AirSystems, Inc., 55 Ark. App. 174, 934 S.W.2d 230 (1996), Lay v.United Parcel Service, 58 Ark. App. 35, 944 S.W.2d 867 (1997);Kildow v. Baldwin Piano Organ review granted, No. 97-828 (Ark. Sept. 11, 1997) 58 Ark. App. 194, 948 S.W.2d 100 (1997), rev’d 333 Ark. ___, ___ S.W.2d ___ (1998); Rudick v. Unifirst Corp., 59 Ark. App. ___, ___ S.W.2d ___ (January 28, 1998); High capacityProducts v. Moore, 61 Ark. App. ___, ___ S.W.2d (February 25, 1998); Malone v. Texarkana Public Schools, 333 Ark. ___, ___ S.W.2d ___ (1998). [6] In Malone v. Texarkana Public Schools, 333 Ark. ___, ___ S.W.2d ___ (1998), the only case to reach the Supreme Court on a rapid repetitive analysis the Court stated that the rapid repetitive motion standard is a two prong test: “(1) the task must be repetitive, and (2) the repetitive motion must be rapid.” The Court further stated:
[7] After analyzing the evidence it is our opinion that claimant has failed to prove that his job duties constituted rapid repetitive motion under the Malone standard. [8] In the present case, claimant described his work as requiring repetitive bending, kneeling or squatting throughout the day to set up his machine or to adjust the knives. A review of all the evidence in this case indicates that, at most, 10% of claimant’s job duties involve stooping or squatting, but that the stooping and squatting occurred intermittently throughout claimant’s typical work day. Claimant’s tasks often changed throughout the day. In Lay v. United Parcel Service, supra, the same movement, separated by several minutes or more throughout a work day, although performed several times in one day, failed to satisfy the definition of rapid repetitive motion. Likewise in Malone, supra, the Court found that the claimant’s tasks while repetitive and performed swiftly, were even less compelling than the facts in LayAs a threshold issue, the tasks must be repetitive, or the rapidity element is not reached. Arguably, even repetitive tasks and rapid work, standing alone do not satisfy the definition. The repetitive tasks must be completed rapidly.
because “they entail many different movements, separated in time, though performed many times in a day.” Analyzing this claim in light of the Court of Appeals opinion in Lay and the Supreme Court opinion in Malone, we find that claimant has failed to prove by a preponderance of the evidence that his right knee problems resulted from rapid repetitive motion. Claimant only occasionally squatted or stooped throughout the work day, and the credible evidence of record reveals that the stooping or squatting was routinely interrupted by several minutes or more while claimant performed his job of making doors. Once the machine was set up, claimant would not have to stoop or squat again until after that order had been filled. Accordingly, we find that claimant has failed to prove the compensability of his knee injury. [9] In addition to claimant’s failure to satisfy the rapid repetitive motion requirement, we further find that claimant has failed to prove that his work duties were the major cause of his disability or need for treatment. Claimant’s treating physician, Dr. James Trussell, testified in his deposition that claimant’s medical problems are the type which will occur over a period of time and that it would be difficult to pinpoint any of claimant’s activities as the cause of claimant’s condition. Dr. Trussell described claimant’s condition as a degenerative type tear and not an acute tear. Dr. Trussell was unable to state what caused claimant’s meniscus tear. Accordingly, we find that claimant has failed to prove by a preponderance of the evidence that the major cause of his disability or need for treatment was his job duties. The claimant’s treating physician was simply unable to state the cause of claimant’s condition other than wear and tear. [10] Since we find that claimant has failed to prove the compensability of his knee injury, it is our opinion that claimant’s request for permanent partial disability benefits is moot. However, since Respondent No. 2 accepted claimant’s second surgery as compensable, we will address claimant’s request for permanent partial disability benefits. After undergoing his second surgery, claimant’s treating physician opined that claimant had a 0% impairment for his right knee. Dr. Trussell arrived at this conclusion after performing range of motion tests. Claimant was not satisfied with Dr. Trussell’s 0% impairment and presented on his own to Dr. Paul Raby who assigned claimant a 12% permanent partial impairment of the right lower extremity. The record reveals that Dr. Raby did not have access to all of claimant’s medical records. Dr. Raby’s report indicates that he merely reviewed the operation report from the second surgical procedure and examined claimant one time in his office. Dr. Raby arrived at his impairment rating relying partially upon atrophy of claimant’s lower extremity. However there is no evidence that Dr. Raby had access to any medical records with which to compare his measurements. Moreover, there is no evidence that the measurements relied upon by Dr. Raby actually resulted from claimant’s second surgical procedure and not from claimant’s December, 1996 injury which we find to be a non-compensable event. [11] After weighing the medical opinion of Dr. Trussell and Dr. Raby, it is our opinion that Dr. Trussell’s 0% impairment rating is entitled to greater weight. Dr. Trussell has treated the claimant throughout this entire ordeal involving claimant’s right lower extremity, and has performed both surgeries while Dr. Raby was a one time only physician examining claimant for the sole purpose of assigning a permanent impairment rating. Dr. Raby did not have the benefit of all medical records and had nothing with which to compare his findings. Moreover, the evidence fails to establish that the major cause of the impairment rating assigned by Dr. Raby is in fact claimant’s April 18, 1997, incident and not the non-compensable December injury. [12] Accordingly, for those reasons set forth herein, we find that the decision of the Administrative Law Judge should be affirmed. Claimant has failed to prove that he sustained a compensable injury as a result of rapid repetitive motion or entitlement to any permanent partial disability benefits arising out of his two surgical procedures on his right lower extremity. [13] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman
MIKE WILSON, Commissioner
[14] Commissioner Humphrey dissents.