CLAIM NO. E513055
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 14, 1996
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by J. DAVID WALL, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed January 18, 1996 finding that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury.
[6] If an employee fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury alleged, she fails to establish the compensability of the claim and the claim must be denied. [7] In our opinion, a review of the evidence indicates that claimant failed to prove by a preponderance of the credible evidence that she sustained a compensable rapid repetitive motion injury. Although the Act 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, we held in Throckmorton v. J J Metals, FC Opinion filed August 14, 1995 (E405318) 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.” We further held that whether the employment duties satisfied this statutory requirement is a fact question to be decided based upon the evidence presented in each case. [8] Based upon our de novo review, we find that the claimant failed to prove by a preponderance of the evidence that she was engaged in job activities which required rapid repetitive motion. Describing her duties on the cut-up line, the claimant stated: “I had to grab the chicken from one side, put it into the machine, cut all the parts back and forth across the saw, and then put the parts on the other side, grab another chicken and do the same thing.” (Clmt. Depo. 10). Employees on the respondent’s cut-up line are given a bonus in pay if they meet a minimum rate for sawing the chickens. The claimant was originally earning this bonus, but she lost the bonus when she failed to work at the bonus rate. The claimant did not disagree with the determination to repeal her performance-based bonus. However, she did subsequently request a change in job duty and was transferred to the plant’s Line 4 in November of 1993. The claimant’s duties on Line 4 included hanging and packing product, and cleaning the floor. [9] On February 21, 1994, the claimant was transferred to the respondent’s service department whereby she made and distributed boxes and moved palettes. Some of the claimant’s duties in the service department did involve cutting product with an electric saw. On September 6, 1994, the claimant again requested a transfer to the respondent’s sanitation department. The sanitation department duties did not require the claimant to cut any poultry product. [10] Evidence was presented that in 1995, while still employed by the respondent, the claimant began working part-time on the production line at Cargill. Her duties at Cargill required her to staple bags of turkeys and involved repetitive use of her hands. [11] The claimant did not present any evidence that any of the various jobs she did for the respondent involved a high rate of activity involving the exact, or almost exactly the same movement again and again over extended periods of time. Evidence was presented that the claimant could not even meet the minimum on the cut-up line and that all her other duties were not of a repetitive nature. The claimant also could not recall when her shoulder problems started and what job duties she was performing at the time. The claimant contended that her shoulder problems started while she was working as a cutter. However, she did not engage in cutting duties after September 6, 1994. Accordingly, we find that the claimant failed to satisfy the requirement that her injury was caused by rapid repetitive motion. [12] Further, even if the claimant were able to prove that her job duties required her to engage in rapid repetitive motion, she also has the burden of proving by a preponderance of the evidence that her alleged compensable injury is the major cause of the disability or need for treatment. Ark. Code Ann. § 11-9-102(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment. (Ark. Code Ann. § 11-9-102
(5)(A)(ii) (Repl. 1996); Ark. Code Ann. § 11-9-102 (5)(E)(ii) (Repl. 1996); Ark. Code Ann. § 11-9-401 (a)(1);
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body. (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) (Repl. 1996), establishing the injury (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 (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 the need for treatment (Ark. Code Ann. § 11-9-102 (5)(E)(ii) (Repl. 1996)).
(5)(E)(ii) (Repl. 1996). “Major cause” is defined in Ark. Code Ann. § 11-9-102 (14) as more than 50% of the cause. The claimant has also failed to prove that her compensable injury is the major cause of her need for treatment. The claimant’s treating physician, Dr. Coker, made no mention in any of his records that the claimant’s right shoulder problems were causally related to her employment with the respondent. Evidence was presented that the claimant’s condition has improved only slightly, if at all, since she quit working for the respondent. [13] Evidence was also presented that the claimant gave inconsistent dates regarding when she first started having problems. The claimant stated in her deposition that she first began experiencing shoulder problems in 1995. However, she testified at the hearing that she could not remember when her problems began. She then asserted that her problems began in 1994. [14] The claimant additionally testified that she reported the injury to the respondents nurse and her supervisor by taking them the note that Dr. Coker gave her. She also testified that she reported to the nurse and her supervisor every time her shoulder hurt. However, it is unclear from the testimony whether the claimant actually reported an injury to her supervisor or the nurse in 1994. Glenda House, the respondent’s nurse, testified that the claimant reported to her with respect to an injury to her eye in 1993. She also testified that the claimant only reported to the nurse’s station on one occasion with soreness in her shoulder. This was in approximately June of 1995 and the claimant had already been treated by Dr. Coker. [15] Evidence was also presented that the claimant had been a laborer for over twenty years. She previously had worked in California for eighteen years picking strawberries which required repetitive motion of her hands and arms. Accordingly, we find that the claimant failed to prove by a preponderance of the evidence that her shoulder problems were the major cause of her need for treatment and we affirm the decision of the Administrative Law Judge. [16] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[17] Commissioner Humphrey dissents.