JANDREW v. AMERICAN STITCHCO, 1997 AWCC 402

CLAIM NOS. E513210 E515967

JUDITH E. JANDREW, EMPLOYEE, CLAIMANT v. AMERICAN STITCHCO, EMPLOYER, RESPONDENT NO. 1 and WAPSI FLY CO., RESPONDENT NO. 2 and WAPSI FLY CO./CSI, RESPONDENT NO. 3 and WAUSAU, CARRIER, RESPONDENT NO. 1 and U.S. FIRE, RESPONDENT NO. 2 and CNA, RESPONDENT NO. 3

Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 4, 1997

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

Claimant represented by FREDERICK S. “RICK” SPENCER, Attorney at Law, Mountain Home, Arkansas.

Respondent No. 1 represented by RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.

Respondent No. 2 represented by WENDY S. WOOD, Attorney at Law, Little Rock, Arkansas.

Respondent No. 3 represented by LEE J. MULDROW, Attorney at Law, Little Rock, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed March 19, 1997, finding that claimant failed to prove that her carpal tunnel syndrome was caused by rapid repetitive motion while employed with either American Stitchco or Wapsi Fly or CSI. Based upon our de novo review of the entire record, we find that claimant has failed to meet her burden of proof. Therefore, we affirm the decision of the Administrative Law Judge.

[3] Claimant began working for American Stitchco on April 18, 1994. When claimant first started working for American Stitchco she worked in the department where Jacuzzi filters were made. Claimant’s job consisted of placing a liner over a plastic filter and then trimming the edges off the liner and placing the finished product in a box. It is claimant’s testimony that after working for approximately one month performing these duties that her hands would begin to swell ache, and go numb. After becoming efficient on the filter job, claimant was also given the job duty of sewing sides of the filters together with a surger. According to claimant’s testimony, at times she would trim the filters and at others she would sew the filters together. After working in this department for approximately two months, claimant bid on and received a job in another department where she operated and monitored a computerized machine. When the machine cut elastic, claimant was required to thread the elastic through S-rings. On July 12, 1994, after working in this new department for approximately one month, claimant left her employment with American Stitchco. At the time of her termination, claimant advised her employer that the ammonia fumes at the plant were bothering her and that she could no longer work under that environment. Claimant did not file a workers’ compensation claim nor did she seek medical treatment for her hands while employed at American Stitchco.

[4] Between July 13, 1994, and October 17, 1994, claimant was unemployed. During this time frame, claimant was seen by her family physician on October 4, 1994, with complaints of her hands and forearms going numb with aching in her hands waking her at night. A nerve conduction study was ordered which was performed by Dr. Bruce Robbins on October 5, 1994. The results of this test reveal claimant had moderately severe bilateral carpal tunnel syndrome with the right worse than the left.

[5] After being diagnosed with carpal tunnel syndrome, claimant obtained employment with Wapsi Fly Company where she performed several different job duties which she characterized as repetitive. Midway through claimant’s employment with Wapsi Fly Company, all employees of Wapsi Fly Company became employees of CSI; however, the job duties of the employees did not change.

[6] 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, FC 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 she sustained an injury causing internal or external harm to the body which arose out of and in the course of their 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) (Repl. 1996). 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) (Repl. 1996). 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) (Repl. 1996). See also Jean Carter v. AidTemporary Services, Inc., FC Opinion filed May 12, 1995 (E404813).

[7] If an employee fails to establish by a preponderance of the credible evidence any of these requirements for establishing the compensability of the alleged injury, she fails to establish the compensability of the claim and the claim must be denied. Reed v.ConAgra, supra.

[8] The claimant failed to prove by a preponderance of the evidence that her carpal tunnel syndrome was caused by rapid repetitive motion. 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.

[9] The Court of Appeals in Lilly Kildow v. Baldwin Piano andOrgan, 58 Ark. App. 194, ___ S.W.2d ___ (July 2, 1997), found the claimant to have proven by a preponderance of the evidence that her carpal tunnel syndrome was caused by rapid repetitive motion with the only evidence of speed being the fact that she worked on an assembly line. In reaching its decision, the majority used the ordinary meaning of rapid to be “swift or quick”. However, the majority did not provide any guidance for the definition of the entire phrase “rapid repetitive motion” other than to reiterate its displeasure with how we previously defined and applied the term repetitive. Nonetheless, we are still compelled to find that a claimant must present some form of sufficient evidence with regard to both the rapid and repetitive requirements of the Act.

[10] The Court of Appeals also addressed our definition of rapid repetitive motion in Baysinger v. Air Systems Inc., 55 Ark. App. 174, ___ S.W.2d ___, (1996). In that opinion, the Court disagreed with our factual assessment in Baysinger wherein we found claimant’s multiple job tasks did not meet the definition of “repetitive.” The Court eventually stated in Kildow, supra that the definition of rapid repetitive motion as used by this commission in Throckmorton v. J. J. Metals, Full Commission opinion August 14, 1996 (E405318) was erroneous as a matter of law. In light of these decisions from the Court, we are now required to re-evaluate how we view multiple job tasks within the “repetitive” definition. See also, Donnie Mullins v. HytrolConveyor, FC Opinion March 13, 1997, (E600667).

[11] We first find that claimant has failed to prove by a preponderance of the evidence that her carpal tunnel syndrome arose out of and in the course and scope of her employment with Wapsi Fly Company and/or CSI. As noted above, claimant was diagnosed with carpal tunnel syndrome prior to ever beginning employment with this entity. Since the carpal tunnel syndrome was obviously present before she ever began working for Wapsi, we cannot find that claimant’s employment with Wapsi caused the carpal tunnel syndrome. Therefore, we affirm the decision of the Administrative Law Judge finding that claimant has failed to prove by a preponderance of the evidence that Wapsi Fly Company and/or CSI are responsible for claimant’s carpal tunnel syndrome.

[12] Next, we find that claimant has failed to prove by a preponderance of the evidence that her carpal tunnel syndrome arose out of and in the course and scope of her employment with American Stitchco. The record reveals that claimant’s employment with American Stitchco consisted of several different jobs performed over a brief three month period of time. According to claimant’s testimony her symptoms began within the first month of her employment. As we review the evidence, we find that the evidence does not preponderate in favor of a finding that the claimant’s activities at American Stitchco fell within the definition of rapid or repetitive, or a finding that claimant’s short duration of employment actually caused claimant’s severe carpal tunnel syndrome. A careful review of the testimony of both claimant and her supervisor, Shirley Jackson reveal that claimant’s job duties while in Ms. Jackson’s department working on Jacuzzi filters varied throughout her shift. Although claimant used the magic word “rapid” in describing her work, in our opinion much more than a claimant’s mere subjective description is required to reach this legal conclusion. Based upon the evidence presented we cannot find that she has actually proven that her tasks were performed in a swift or quick manner nor at a notably high rate of speed. Moreover, a description of claimant’s job duties reveal many different steps and processes are involved to complete her tasks. Claimant would have to place a screen on the filters, trim the filters, and place the filters in a box or she would have to retrieve two filters and stitch them together on a surger. These varied job duties inevitably slow the actual work process down. In addition, while the claimant in the present case worked in a factory setting. We cannot equate the claimant’s work to the assembly line work performed by the claimant in Kildow. Furthermore, although claimant testified at the hearing that the job duties of placing a screen on the filters, trimming the filters and then placing the filters in a box and stitching filters together caused her hands to go numb, swell and ache, it is not these job duties which claimant contends caused her carpal tunnel syndrome. When claimant’s evidence is reviewed in its entirety, it is clear that her major complaint was having to thread the elastic through the S-hooks during her last month of employment with American Stitchco. However, as noted above, claimant testified that her symptoms began shortly after she started her employment with American Stitchco. Her testimony is simply inconsistent with regard to the job duties which she believes caused her problems. There is no evidence regarding speed anywhere in the record. Claimant was not paid based upon a quota, nor was she ever required to produce a certain number of finished products during her shift. Thus, the record is actually void of any evidence regarding the rapid requirement, save for claimant’s own self-serving use of the word rapid.

[13] We, also feel compelled to point out that if claimant’s testimony is to be believed, she began experiencing numbness and tingling after only four weeks of employment with respondent. We find it hard to believe that claimant’s carpal tunnel syndrome would be characterized as moderately severe and progress to the point of numbness, aching, and tingling after only four weeks of employment with American Stitchco. In our opinion, the severity of her symptoms and diagnosis actually lends credibility to the testimony of Carl Schmuecker who testified that when claimant terminated her employment with Wapsi Fly Company on December 9, 1994, she advised him that she had previously been diagnosed with carpal tunnel syndrome and that she intended to sue a cookie company for whom she had worked in Illinois on account of the carpal tunnel syndrome. It is simply difficult to believe that claimant’s physical condition could deteriorate to such a degree after only 4 weeks of employment.

[14] While we acknowledge that claimant has introduced several medical records which all indicate that claimant’s carpal tunnel syndrome was caused by her employment with American Stitchco, we note that this information was provided to the doctors through the history provided by claimant. We further note that there is no indication that the medical care providers were ever advised of claimant’s short employment tenure with American Stitchco, nor is there any evidence that claimant advised her medical care providers of her previous employment with a cookie company in Illinois or with her job at Wapsi Fly Company. Accordingly, we place no weight upon these medical records. The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34
(1989). The Commission is not bound by a doctor’s opinion which is based largely on facts related to him by claimant where there is no sufficient independent knowledge upon which to corroborate claimant’s claim. Roberts v. Leo-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).

[15] Therefore, for those reasons stated herein, we find that the decision of the Administrative Law Judge should be affirmed.

[16] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[17] Commissioner Humphrey dissents.