KILDOW v. BALDWIN PIANO ORGAN, 1996 AWCC 162

CLAIM NO. E403862

LILLY KILDOW, EMPLOYEE, CLAIMANT, v. BALDWIN PIANO ORGAN, EMPLOYER, RESPONDENT, and HELMSMAN MANAGEMENT SERVICES, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 1, 1996

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

Claimant represented by TIMOTHY MYERS, Attorney at Law, Fayetteville, Arkansas.

Respondent represented by JAMES ARNOLD, II, Attorney at Law, Fort Smith, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed November 29, 1995, finding that the claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury.

[3] The claimant contends that her bilateral carpal tunnel syndrome arose out of and in the course and scope of her employment. Claimant began working for respondent employer on February 1, 1993 as an electronic assembler. Claimant’s job as an electronic assembler consisted of putting small components in boards. This assembly included picking up a board which is approximately one-eighth of an inch thick, clipping short wires onto a post in the board, pulling one end of the wire through a whole in the board, flipping the board over, grabbing the end of the wire with a pair of pliers, securing the wire to the back of the board and twisting the wire. The claimant used her right hand to operate the pliers with which she would grab and twist the wire. [4] According to the claimant, in January or February of 1994 she began to experience pain in both hands. She described her symptoms as pain, numbness, tingling and burning. The claimant was first treated and examined by Dr. David Ureckis. Dr. Ureckis’ March 10, 1994 examination revealed a history of complaints of pain in both wrists, with greater pain in the right. The pain had existed for approximately one month. Dr. Ureckis performed a physical examination which revealed decreased range of motion, positive Phalen’s on both wrists, negative Tinel’s on both wrists, and negative x-rays. He prescribed wrists splints for both wrists and kept the claimant off work. A nerve conduction velocity test was ordered and revealed “very mild right carpal tunnel syndrome based upon a 0.4 second millisecond difference between right median and right ulnar sensory action potential. The absolute value of the median sensory action potential, however, is within normal limits.” Dr. Ureckis referred the claimant to Dr. Tom Coker. The claimant continued under Dr. Coker’s care until June 10, 1994. Dr. Coker’s May 13, 1994 report states:

This 44-year-old with bilateral wrist complaints continues to have wrist complaints. She is getting better but is much slower than I would like. She seems happy with the progress. She has negative Tinel’s today and negative medial nerve compression test. The Phalen’s test was minimally positive. She had some slight pain over the ulnar three digits and only positive on the right side. We are going to try her in her splints for a little while longer and try her for another four weeks off work. She is concerned that if she goes to work now it will just come back as she may be right. I will try her on anti-inflammatories and physical therapy and will see her in one month. I have told her to be prepared to return to work at that time.

[5] On June 10, 1994 Dr. Coker released the claimant to return to work with no repetitive type motion. However, the claimant never contacted the respondents about returning to light duty work although the claimant did receive certified correspondence from the respondents stating that they would like to return her to light duty within her work restrictions. [6] 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 for claims governed under this Act, a claimant must satisfy the requirements for establishing one of five categories of compensable injuries required by the amended law, including requirements which are common to all categories of injuries. Jerry D. Reed v. ConAgra FrozenFoods, FC Opinion filed February 2, 1995 (E317744). The claimant does not contend that she sustained an injury identifiable by time and place of occurrence. Instead, the claimant contends that she sustained a rapid repetitive motion injury. We noted in Jeanne Cater v. Aid TemporaryServices, Inc., FC Opinion filed May 12, 1995 (E404813), that when a claim is made for an injury resulting from rapid repetitive motion, the following requirements must be satisfied:

(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)).

[7] 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. [8] 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. [9] The claimant failed to prove by a preponderance of the evidence that her carpal tunnel syndrome was cause by rapid repetitive motion. 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 the statutory requirement is a fact question to be decided based upon the evidence presented in each case. [10] After reviewing the evidence in this case impartially, and without giving the benefit of the doubt to either party, we find that the claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury while employed by respondent. Even if one were to assume that the other four requirements for establishing a compensable injury were met, the claimant has failed to prove by a preponderance of the evidence that her injury was caused by rapid repetitive motion. There is simply no evidence in the record to prove that the claimant’s activities fall within the definition of rapid. Although the claimant described her activities as repetitious, there is nothing in the record to prove that these activities were also rapid. [11] The claimant argues that all carpal tunnel claims are compensable since carpal tunnel is specifically mentioned under rapid repetitive motion injuries. We rejected this argument in Cynthia Duke v. Regis Hairstyles,
FC Opinion filed September 12, 1995 (E402336). In Duke we specifically rejected the Administrative Law Judge’s finding that a claimant does not have to prove his condition was caused by rapid repetitive movement since carpal tunnel syndrome is specifically categorized as a condition caused by rapid repetitive motion. In rejecting that interpretation, we stated:

Clearly, the General Assembly sought to establish safeguards to assure that only workers sustaining legitimate work-related injuries are compensated, and the General Assembly sought to achieve this goal, in part, by creating additional requirements for establishing the compensability of conditions where, due to the nature of the condition, the causal relationship between the employment and the disability is more difficult to determine. Carpal tunnel syndrome is such a condition, and nothing in the language of the statute indicates that the General Assembly intended to accept carpal tunnel syndrome from the heightened proof requirements imposed on other similar conditions. Instead, due to the complicated nature of carpal tunnel syndrome and its prevalence, the General Assembly obviously wanted to assure that the Act was not construed in such a manner that carpal tunnel syndrome did not fall into either category of compensable injury recognized by the amended law.

[12] We reiterated in Duke that all requirements necessary to establish an injury caused by rapid repetitive motion must also be established in order to prove the compensability of carpal tunnel syndrome, including proof that the condition was caused by rapid repetitive motion. [13] Based on our de novo review of the entire record and for those reasons discussed herein, we specifically find that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury. Therefore, we affirm the decision of the Administrative Law Judge. [14] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner

[15] Commissioner Humphrey dissents.

[16] DISSENTING OPINION
[17] I must respectfully dissent from the majority opinion finding that claimant failed to prove, by a preponderance of the credible evidence, that she suffered a compensable rapid repetitive motion injury in the form of carpal tunnel syndrome. Specifically, the majority has not been convinced that claimant’s work activities were sufficiently “rapid” enough to satisfy its standard for “rapid repetitive motion” as set out in Throckmorton v. JJ Metals, Full Workers’ Compensation Commission, Opinion Filed August 14, 1995 (Claim No. E405318).

[18] Ark. Code Ann. § 11-9-102 (5)(A) states, in pertinent part, that:

(5)(A) “Compensable injury” means:

(ii) An injury causing internal or external physical harm to the body and arising out of an in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(a) Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as a compensable injury falling within this definition; (Emphasis added).

[19] Claimant contends that the second sentence of subsection (ii)(a) expressly defines carpal tunnel syndrome (hereinafter “CTS”) as a compensable injury, and that a positive diagnosis thereof, in effect, mandates a finding that rapid repetitive motion was the cause. As the majority has pointed out, this line of reasoning has been previously rejected in Duke v. Regis Hairstyles, Full Workers’ Compensation Commission, Opinion filed September 12, 1995 (Claim No. E402336). I did not agree with the majority inDuke, and do not agree on this occasion either. [20] The plain language of the statute in question supports claimant’s contention, in that it explicitly states that CTS is both compensable and falls within the definition
of “rapid repetitive motion” — without provision or regard for how either “rapid” or “repetitive” are themselves defined. Thus, Ark. Code Ann. § 11-9-102 (5)(A) amounts to no less than an affirmative declaration that CTS is, without limitation, a compensable injury already within the category of injuries caused by rapid repetitive motion. [21] For the reasons set forth above, I must respectfully dissent. [22] PAT WEST HUMPHREY, Commissioner