CLAIM NOS. E311438 E602464
RENATE HAPNEY, EMPLOYEE, CLAIMANT v. RHEEM MANUFACTURING CO., EMPLOYER, RESPONDENT, WAUSAU INSURANCE CO., CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 12, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by WILLIAM KROPP, III, Attorney at Law, Fort Smith, Arkansas.
Respondent represented by WAYNE HARRIS, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1]
OPINION AND ORDER [2] Respondent appeals from a decision of the Administrative Law Judge filed January 31, 1997 finding that claimant sustained a compensable cervical injury on February 2, 1996, and finding that claimant is entitled to temporary total disability benefits from February 2, 1996, through a date yet to be determined. Based upon our de novo review of the entire record, we find that claimant has failed to meet her burden of proof. [3] First, we note that all parties concede that the Administrative Law Judge erred in awarding temporary total disability benefits from February 2, 1996, through a date yet to be determined. As claimant stated in her brief, claimant is not entitled to benefits for that time during which she was actually working. The record reflects that claimant ceased work on February 13, 1996, and returned to work after being released by her treating physician on September 3, 1996. [4] Secondly, we cannot agree with the Administrative Law Judge’s analysis finding that claimant sustained a compensable injury on February 2, 1996. Claimant has been a longstanding employee of respondent. It is claimant’s contention that she developed problems with her neck on February 2, 1996, during the course and scope of her employment. Claimant testified that on February 2, 1996, she performed different job duties than she had previously performed. Although claimant had previously sustained a compensable injury in 1993 and has continuously complained of back, neck and right shoulder pain since that first compensable injury, it is claimant’s contention that on February 2, 1996, her symptoms took on a different nature. [5] Conversely, respondent contends that any problems claimant experienced in 1996 is a continuation of claimant’s compensable 1993 injury and thus barred by the Statute of Limitations. Respondent alternatively contends that if claimant’s 1996 condition is not a continuation of her previous compensable injury that claimant cannot meet her burden of proving a compensable injury under the requirements of
Act 796 of 1993. After reviewing the record de novo, without giving the benefit of the doubt to either party, we agree with respondent. [6] Claimant’s 1996 injury occurred to her cervical spine. Although, we have not held in so many words that the gradual onset exception for back injuries do not apply to cervical injury claims, Kathy Thornburg v. Tyson Foods, FC Opinion April 18, 1997, (
E515860) clearly stands for this proposition. The gradual onset exception for back injuries does not extend to the neck. When the Administrative Law Judge wrote his opinion on January 31, 1996, he did not have the benefit of our recent holding in Thornburg. [7] Since the spring of 1997 all of our nonspecific incident cervical injury claims have turned on a rapid repetitive motion analysis and not the generic gradual back injury. See WendellBore v. High Capacity, Full Commission Opinion April 2, 1997 (
E505780) and Michael McDaniels v. Michael McDaniels, D.D.S., Full Commission Opinion September 9, 1997 (
600713). While the majority opinions may not have explicitly held the generic general onset exception for back injuries does not apply to cervical injury claims, such a finding can be implied from our opinions. The majority in Thornburg stated that the claimant contended that she sustained a repetitive motion injury to her neck, however, this Commission has on numerous occasions addressed and applied alternative theories when the arguments and evidence warrant as much. In Thornburg claimant argued repetitive work caused her cervical neck problems. Obviously, if the majority so chose it could have applied the repetitive work argument to the gradual onset exception for back claims. [8] We find that claimant has not proven that she sustained a specific incident injury on February 2, 1996. The claimant’s injury occurred after July 1, 1993, thus, this claim is governed by the provisions of
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 Ark. Code Ann. §
11-9-102 as amended by Act 796. Jerry D. Reed v. ConAgra Frozen Foods, FC Opinion filed Feb. 2, 1995 (
E317744). When a claimant alleges that she sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, she must prove by a preponderance of the evidence that she sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of her employment and which required medical services or resulted in disability or death. See Ark. Code Ann. §
11-9-102(5)(A)(i) and §
11-9-102(5)(E)(i) (Repl. 1996). She must also prove 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). 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).” [9] If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, she fails to establish the compensability of the claim, and compensation must be denied.Jerry D. Reed, supra. [10] In claimant’s deposition, which was introduced into evidence, claimant was unable to describe any injuries she sustained on February 2, 1996. When asked to describe her injury, claimant stated “well, I don’t know when I got injured.” Likewise, at the hearing, claimant was unable to identify a specific incident resulting in her neck problems on February 2, 1996. Claimant did not report a work-related injury to her employer on the date of the alleged injury nor did she report a specific incident on the following Monday when she requested to see the company physician. Finally, when the medical records are reviewed in their entirety, it is clear that claimant did not provide a history to any of her treating physicians of a specific incident resulting in the onset of her neck problems. At best, claimant merely described a gradual increase in her neck pain as a result of having to perform different job duties. [11] An increase or onset of pain after a long day of work is not identifiable enough to meet the definite requirement for a specific incident injury. In Virginia Ward v. TCS Inc., Full Commission Opinion October 31, 1996 (Claim No.
E500617) the claimant similarly argued that continually lifting at work on a specific date was enough to satisfy the specific incident requirement of Act 796. However, we found in that case general lifting over a day’s time does not meet the definiteness requirement for a specific incident claim. The claimant inVirginia Ward could only point to a specific date when the pain began. She could not identify a specific time and place of an incident which was the precipitating factor as the onset of her pain. She merely explained that as she lifted on that date her pain got worse. In Virginia Ward we declined to find that she sustained a specific incident injury due to her failure to identify a specific time and place rather than a gradual increase in pain over a day’s work. Likewise, in the present case, we cannot find that a day’s work is sufficient to meet the specific incident requirement under Act 796. A day’s work is just the type of situation which prompted the General Assembly to include the gradual onset exception to the specific incident requirement. [12] We cannot agree with the Administrative Law Judge that an onset of pain at the end of a work day is sufficient to prove a specific incident on that day when the claimant, herself, cannot even identify what caused the pain to develop other than her work in general. This case is clearly distinguishable from the Full Commission holding in Nathan Shepard v. Callion Lumber Co., FC Opinion October 6, 1995, (
E320270) where the claimant felt an immediate sharp, tight pain in the lower portion of his back as he was lifting a load of lumber. The claimant in the present case cannot identify a specific incident identifiable by time and place of occurrence which precipitated her increased neck pain. Work in general is not a specific incident. Had claimant experienced a specific incident, one would expect the claimant to advise either her employer or her treating physicians of the incident. In our opinion, simply pinpointing one day when the symptoms increased is not sufficient evidence that a specific incident identifiable by time and place of occurrence occurred. The exact day and time is not necessary, but a specific incident does require more definiteness than just an increase in pain after working. [13] However, simply because claimant has failed to prove that a specific incident did not occur on February 2, 1996, claimant’s claim does not automatically fail. Act 796 does recognize certain specified exceptions to the general limitation of compensable injuries to those injuries which are caused by specific incident and which are identifiable by time and place of occurrence. Those exceptions are set forth in Ark. Code Ann. §
11-9-102(5)(A)(ii) through (iv) (Repl. 1996). We have previously held that the exception for back injuries generally characterized as gradual onset injuries do not apply to cervical claims. See KathyThornburg v. Tyson Foods, Supra. However, the rapid repetitive motion exception is applicable to cervical injuries. To satisfy the definitional requirements for rapid repetitive motion injuries, the employee must still satisfy all of the requirements set forth above for specific incidents with the exception of the specific incident definiteness requirement. Thus, the employee must still prove by a preponderance of the evidence that she sustained an internal or external damage to the body as a result of an injury that arose out of and in the course of employment and the employee must still establish the compensability of the claim with medical evidence supported by objective findings. However, in addition to these requirements, claimant must 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). [14] In applying the controlling law under
Act 796 of 1993 to the evidence in this case, the Commission is to strictly construe the act. Ark. Code Ann. §
11-9-704(C)(3). We cannot find that claimant has met her burden of proof. While the evidence does show that claimant worked on an average of 31.6 units per hour on the day her symptoms began, which would require claimant to perform her required movements every 1.89 minutes, we cannot find that this work was performed at a sufficiently notably high rate of speed to satisfy the rapid requirement. The Arkansas Court of Appeals recently held in Michael Lay v. United Partial Service, Opinion delivered June 4, 1997, that motion or movement separated by periods of several minutes or more do not constitute rapid repetitive motion under the meaning of §
11-9-102(5)(A)(ii)(a). The record in this case reveals that there was delay and hesitation in between the required movements. In our opinion, such delay of over one minute in performing the required movements does not satisfy the rapid requirement under the Act. Consequently, we find that claimant has failed to prove that she sustained a rapid repetitive motion injury on February 2, 1996. Moreover, we note that while the evidence reflects a required movement every 1.89 minutes, there is no evidence that each movement required of claimant actually involved the shoulder or neck. [15] Accordingly, for those reasons stated herein, we reverse the decision of the Administrative Law Judge finding that claimant sustained a compensable injury on February 2, 1996. [16] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[17] Commissioner Humphrey dissents. [18]
DISSENTING OPINION [19] I respectfully dissent from the majority opinion in this case based on their failure to recognize the neck as part of the back when determining whether a claimant has sustained a gradual onset injury pursuant to Ark. Code Ann. §
11-9-102(5)(A)(ii)(b) (Repl. 1996). Based upon my de novo review of the record, I find that the claimant proved that she sustained a compensable injury, and that she is entitled to temporary total disability benefits. I find that this claim is compensable based on any of the following alternative basis: the gradual onset back injury statute, Ark. Code Ann. §
11-9-102(5)(A)(ii)(b) (Repl. 1996); the statute concerning specific incident injuries, Ark. Code Ann. §
11-9-102(5)(A)(i) (Repl. 1996); or, the statute concerning rapid repetitive motion, Ark. Code Ann. §
11-9-102(5)(A)(ii)(a) (Repl. 1996). Accordingly, I would affirm the Administrative Law Judge’s decision. [20] The evidence in this case indicates that the claimant had been employed by the respondent for approximately twelve years prior to the injury in question. The testimony indicated that on February 2, 1996, the claimant was assigned to a new job because other employees were not reporting for work due to bad weather. The evidence indicates that the job in question required the claimant to do a lot of bending, stooping, and turning of the neck. The job required the claimant to use a screw gun to assemble two parts on a unit. The claimant used an “orr” to line up the screw holes, having to stoop over to see where and how the screws were to be inserted into the holes. The uncontradicted testimony indicated that the job required the claimant to bend down and turn her neck to locate the holes. This bending neck motion was performed six times per unit (once per screw). The evidence indicates that during the claimant’s shift on the day in question, 316 units were produced over the ten-hour shift. [21] The uncontradicted testimony indicated that the claimant began to experience severe neck pain during her shift on February 2, 1996 (Friday), and that she was in extreme pain by the end of the day. While the respondent alleges that the claimant did not give notice of her injury until the following Monday, the record clearly shows that the claimant informed her supervisor/foreman, Harry Chamberlain, of her injury on the date it occurred, February 2. The claimant testified that she had neck pain all that weekend, and on Monday morning, she asked the company nurse about seeing the company doctor. The claimant was unable to move her head and was in extreme pain when she spoke to the nurse. The claimant further testified that the pain she was experiencing in her neck was more severe than the pain she had experienced with her shoulder injury in 1993. The claimant also testified that she had never had mobility problems or pain in her neck as a result of the 1993 shoulder injury, clearly indicating that this was a new injury and not a recurrence of the 1993 shoulder injury. The medical records also indicate that this neck injury was a new injury and not a mere recurrence of a preexisting condition, as the respondent alleges in their Statute of Limitations argument. [22] The majority opinion in this case specifically points to the case of Kathy Thornburg v. Tyson Foods, Commission opinion filed April 18, 1997 (
E515860), to support their position that the neck is not considered part of the back when determining whether a claimant sustained a gradual onset injury pursuant to Ark. Code Ann. §
11-9-102(5)(A)(ii)(b) (Repl. 1996). Thornburg
does not stand for the proposition that the exception for back injuries generally characterized as gradual onset injuries do not apply to cervical claims. Thornburg was decided only on the basis of claimant’s contention that she sustained a cervical injury as a result of rapid repetitive motion, and DID NOT go as far as stating that “for cervical spinal injuries a claimant must prove that she sustained either a specific incident injury or that the injury is the result of rapid repetitive movement.” [23] Interestingly, the Commission has previously held that a cervical/neck injury falls under the gradual onset back injury exception in Ark. Code Ann. §
11-9-102(5)(A)(ii)(b) (Repl. 1996).Carol J. Price v. Levis Strauss Company, Full Commission Opinion filed February 7, 1996 (
E410240). In Price, claimant had a C5-6 injury which was held to be compensable pursuant to the gradual onset back exception. The dissent in that case made the same argument that the majority opinion now adopts; the neck is not part of the back or spine for purposes of the subsection in question. The argument was rejected then, and it should be rejected in the present case. [24] The cervical spine/neck is clearly part of the “back” and should be considered as such when determining whether a claimant sustained a gradual onset injury. One must simply look at a chart of the vertebral column to make such a conclusion. The term “back” is commonly defined to include the spinal or vertebral column, and the spinal or vertebral column includes the seven cervical vertebrae. See, J. E. Schmidt, M. D., Attorney’sDictionary of Medicine and Word Finder (1996); see also, Dorland’sIllustrated Medical Dictionary 28th ed. (1994). If the neck is not part of the back, where would one draw the line when making such a determination? Suppose the injury was to the C6-7 area, as in the present case, and the T1-2 area, would the claimant have to meet the requirements of two different subsections (specific incident and gradual onset) in order to show compensability? If the claimant could meet the burden of proof concerning gradual onset for the T1-2, but could not meet the burden concerning the specific incident for C6-7, would we split the award? Such a standard would lead to absurd results. We should simply follow our prior holding in Price and affirm the Administrative Law Judge’s decision. [25] The Arkansas Court of Appeals has recently analyzed a neck injury under the gradual onset back injury exception pursuant to Ark. Code Ann. §
11-9-102(5)(A)(ii)(b) (Repl. 1996), in the case of Criner v. Noalmark Broadcast Corp., CA97-548 (unpublished opinion delivered January 21, 1998). In that case, the claimant contended she sustained an injury to her neck in May of 1994, and she underwent anterior cervical fusion to her neck allegedly as a result of that incident. The claimant further contended that she sustained another injury to her neck on April 12, 1995, when a plate inserted in her neck broke as she was bending over. In analyzing whether or not the claimant sustained a compensable injury, the Court of Appeals stated:
Because the appellant does not allege a specific incident as the cause of her first neck injury, Ark. Code Ann. § 11-9-102(5)(A)(ii) (Repl. 1996) is applicable, which defines a “compensable injury” as:
(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident and is identifiable by time and place of occurrence, if the injury is:
. . . .
(b) A back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence.[Emphasis supplied.]
[26] Additionally, in the more recent case, High Capacity Products v.Moore, ___ Ark. App. ___, ___ S.W.2d ___ (February 25, 1998) (CA 97-880), the Court of Appeals affirmed the Commission’s finding of compensability as a result of a neck injury caused by rapid repetitive motion pursuant to Ark. Code Ann. §
11-9-102(5)(A)(ii)(a). The Commission had analyzed the case as one concerning a rapid repetitive injury and awarded benefits. In my opinion, the difference in these two affirmances by the Court lies in the analysis used by the Full Commission. In Criner, the Commission denied compensability, analyzing the neck injury as part of the back. In High Capacity Products, the Full Commission granted benefits by finding that claimant’s injury was the result of rapid repetitive motion. Due to its standard of review, the Court was limited in its own analysis in determining whether to affirm or reverse the Commission. While Criner was admittedly an unpublished opinion and High Capacity Products was published, I do not interpret either as expressly finding that in order to analyze a gradual onset neck injury, the injury must have been caused by rapid repetitive motion. This issue cries out for a explicit, published opinion by the Arkansas Court of Appeals. [27] Accordingly, I would find that the claimant sustained a gradual onset injury to her cervical spine/neck, and that the injury is compensable pursuant to Ark. Code Ann. §
11-9-102(5)(A)(ii)(b) (Repl. 1996). To meet the requirements of this section, the following factors must be satisfied:
(1) proof by a preponderance of the evidence of an injury arising our of and in the course of her employment;
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body:
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury; and,
(4) proof by a preponderance of the evidence that the injury was the major cause of the disability or need for treatment.
[28] The evidence in this case shows that on the day in question, the claimant experienced pain unlike any she had ever experienced before, and that the onset of this pain occurred while performing her job duties. I find that the claimant presented credible, uncontradicted testimony concerning the occurrence of her cervical injury. She was performing new job duties which required her to bend her cervical spine/neck in an awkward position numerous times throughout the day (316 units produced x 6 screw per unit =1,896 bends of the cervical spine/neck). The claimant was in such pain by the end of the day that she reported her cervical problems to her supervisor, Mr. Chamberlain. The complaints in question were different in both nature and magnitude than those which she experienced as a result of her 1993 injury. The medical evaluation quickly revealed that the injury was to the cervical spine, and unrelated to the 1993 injury. I find that this evidence, plus the lack of any nonwork-related explanation of her condition, supports the conclusion that claimant’s injury arose out of and during the course of her employment with the respondent. [29] The evidence also indicates that the claimant sustained an injury causing internal physical harm to the body, which is supported by objective findings. The MRI in this case indicated that the claimant has a “central and left paracentral disc herniation at C5-6 indenting the thecal sac and causing spinal stenosis and also some protrusion at C6-7 centrally.” Consequently, this was a new and distinct injury separate from the 1993 injury to the shoulder. Accordingly, the medical evidence contradicts the respondent’s assertion that claimant’s current condition represents a recurrence of her prior injury. Therefore, this claim cannot be barred by the Statute of Limitations. [30] The claimant has also met her burden of proving that the injury was the major cause of her disability or need for treatment. In his medical report of October 11, 1996, Dr. Luis G. Cesar stated, “[t]o the best of my knowledge after reviewing her history and physical examination the major cause of her presentproblem is the 2-2-96, injury.” [Emphasis supplied.] [31] Therefore, I believe that the claimant has met all of the factors showing that she sustained a compensable neck injury pursuant to Ark. Code Ann. §
11-9-102(5)(A)(ii)(b) (Repl. 1996). In my opinion, claimant does not have to prove that a gradual onset neck injury was the result of rapid repetitive motion. [32] Be that as it may, I also find that the claimant’s injury was caused by rapid repetitive motion. The Administrative Law Judge found that the claimant was required to perform her new job duties for approximately nine hours, and that the same movements were repeated every 1.89 minutes. I would also break this down another way to show: 316 units x 6 screws per unit = 1,896 bends of the cervical spine/neck during the shift. I believe the claimant’s duties were sufficiently rapid and repetitive in nature to satisfy the statute. [33] For the foregoing reasons, I must respectfully dissent. [34] PAT WEST HUMPHREY, Commissioner