CLAIM NO. E320218
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 6, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE SARA M. SAWYER, Attorney at Law, Monticello, Arkansas.
Respondent represented by the HONORABLE MICHAEL J. DENNIS, Attorney at Law, Pine Bluff, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] Respondent appeals an opinion filed January 22, 1997 by an administrative law judge. The administrative law judge found: (1) The claimant sustained a compensable injury on or about April 15, 1996; and (2) The claimant was temporarily totally disabled from June 20, 1996 through October 7, 1996. The administrative law judge ordered respondent to pay all reasonable hospital and medical expenses arising out of the alleged compensable injury. After reviewing the entire record de novo, we reverse the decision of the administrative law judge.
[5] On May 22, 1996, Dr. Michael Moore, Center for Surgery of the Hand and Upper Extremity, diagnosed symptomatic left carpal tunnel syndrome. On June 24, 1996, he reported:Her complaints may in part be referable to mild carpal tunnel syndrome; however, the overall clinical picture is most suggestive that ergonomic factors represent the predominant problem.
[6] At or about this time, Dr. Moore performed a left carpal tunnel release on the claimant. The claimant reported some relief after this operative procedure, and additional conservative treatment followed. An arthroscopic evaluation revealed no significant evidence of ulnocarpal impingement syndrome. Dr. Moore wrote to claimant’s counsel on July 15, 1996:It is my opinion Ms. Harris’ work at Potlatch is exacerbating or precipitating her symptoms. It should be noted that Ms. Harris does not have any symptoms in her right hand. She reports that she uses her left hand to drive the forklift on a continuous basis. In addition, it was Dr. Rutherford’s opinion when he evaluated Ms. Harris on 4/15/96 that her current complaints were most likely related to ergonomic factors. Finally, Ms. Harris may have an ulnar carpal impingement syndrome. However, her work at Potlatch is not the primary cause of this problem. Nevertheless, it is likely that her work, which requires her to use her left hand on a fairly continuous basis may be aggravating the symptoms associated with the ulna carpal impingement syndrome.
[7] Finally, on October 7, 1996, Dr. Moore opined that the claimant had reached the end of her healing period. [8] The parties stipulated that the Arkansas Workers’ Compensation Law, as amended by Act 796 of 1993, controls this claim. 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 FrozenFoods, 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. Instead, she contends that she sustained an injury as a result of repetitive motion. Consequently, the requirements of Ark. Code Ann. §11-9-102(5)(A)(ii)(a) (Repl. 1996) control, and the following must be satisfied:This letter is in regard to Ms. Gloria Harris. As you know, she has undergone a recent evaluation which has suggested a left carpal tunnel syndrome. She has undergone a thorough evaluation, including a nerve conduction and EMG study, which suggested left carpal tunnel syndrome. As I stated in my previous letter dated 06-24-96, it is my opinion the symptoms Ms. Harris has in her left hand are most likely related to the ergonomic factors associated with her job. Apparently, Ms. Harris uses her left hand extensively to control a forklift. In addition, she does not have any symptoms in her right hand.
In this regard, it is fair to assume that the primary cause of her current symptoms would likely be related to this work activity.
[9] If the employee fails to establish, by a preponderance of the evidence, any of these statutory requirements, she fails to establish compensability of the claim. We must then deny compensation. Reed, supra. [10] In the within matter, we find that the claimant failed to prove that her injury was caused by rapid repetitive motion, even though the claimant testified a great deal regarding the volume of her work load:(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)).
Q. What you’re telling me, if I understand your testimony correctly, last night you counted the number of times you have to do a 360 degree spin?
A. At least twenty to twenty-five times.
Q. To load a roll.
A. Right.
Q. — off the line —
A. Right, into the rail car.
Q. — into the rail car, like we saw in this video?
A. Uh-huh (yes). But that’s one roll, but you would have normally anywhere from thirty to sixty rolls in a car.
Q. So however long it took this driver — And when you say load one roll, does that mean driving from the rail car down to the line and then back to the rail car an in?
A. Yes, back to the rail car.
Q. So however long it took that driver to get from the rail car down to the line and then back in —
A. Uh-huh (yes).
[11] Nevertheless, the claimant failed in showing actually how much she used her left hand. In the recent Court of Appeals caseKildow v. Baldwin Piano and Organ, 58 Ark. App. 194, ___ S.W.2d ___ (1997), the Court said that we must give the term “rapid and repetitive” its ordinary meaning, making use of common sense. The Court said further that the ordinary use of “rapid” means “swift or quick.” In Kildow, the appellant testified that her job entailed assembling electrical components on boards by gripping and twisting short wires on small pieces for 8-10 hours a day, 5-6 days a week on an assembly line. “It is clear to us,” stated the Court, “that reasonable minds could not agree that appellant’s testimony does not establish that her job did involve swift or quick motion.” Kildow, supra. [12] There is no such specific testimony in the instant matter. Claimant merely testified generally regarding the amount of loads that came in requiring use of the fork truck. No evidence was proffered regarding actual repetitive and rapid movement of the claimant’s left hand. [13] In addition to the extent that the videotape indicates repetitive upper extremity motion, we note with interest that the motion required to perform the 360 degree spins is essentially motion of the shoulder and elbow. Although carpal tunnel syndrome can be caused by rapid and repetitive motion of the hands or wrists, the videotape and the claimant’s testimony both indicate that the claimant’s hand and wrist remained in a relatively stationary position while turning the wheel in 360 degree spins. Consequently, we find that the nature of the duties performed are simply not indicative of motions which cause carpal tunnel syndrome. [14] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove, by a preponderance of the evidence, that she sustained a compensable injury. Therefore, we reverse the decision of the Administrative Law Judge and respectfully dismiss this claim. [15] IT IS SO ORDERED.Q. — you would have had at least twenty movements of your hand?
A. Uh-huh (yes), that short distance as that videotape was done.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[16] Commissioner Humphrey dissents.[17] DISSENTING OPINION
[18] I must respectfully dissent from the opinion of the majority finding that claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury.