CLAIM NO. E606128
PATRICIA McKEE, EMPLOYEE, CLAIMANT v. AMERICAN GREETING CORPORATION, EMPLOYER, RESPONDENT and LIBERTY MUTUAL INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 23, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE KEITH BLACKMAN, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by the HONORABLE TERRY SMITH, JR., Attorney at Law, West Memphis, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge finding that the claimant established by a preponderance of the evidence injuries to each upper extremity. For the reasons set out below, we affirm the administrative law judge’s decision that the claimant sustained a compensable injury to her right wrist and arm. However, we find that the claimant failed to establish any injury to her left wrist or arm with objective findings. Therefore, we reverse the administrative law judge’s finding of compensability as to the claimant’s left wrist and arm.
[3] The claimant alleges that she suffered cumulative trauma injuries to her left wrist and right elbow and right wrist beginning on or about February 17, 1995. At the time of the onset of her difficulties, the claimant was employed in the respondents’ picture frame factory located in Harrisburg, Arkansas. The claimant had been employed at this facility since September 1994. At the time of her injury, she was performing a task described as “saw and nail.”
[4] This job was described by the claimant and Elaine Doyle, a co-worker of the claimant. The saw and nail job was a two-person operation. The first person, who was referred to as the sawer, would remove 12′ boards from a conveyor belt, then use a saw to cut them into shorter pieces to be assembled as a picture frame. The sawer would push the cut pieces into a box for use by the second worker called a nailer, to assemble. The nailer would take the cut pieces, put them together, place them in a nailing machine, which would then be operated by a foot pedal. The nailer would then nail each picture frame together and place it in a box to be moved to another portion of the factory. After placing the completed picture frame in a box, the nailer was also required to label each box accordingly. After two hours of this operation, the workers would switch positions and continue. The claimant and Ms. Doyle, who had comprised a two-person team in the saw and nail operation, testified that at the time the claimant began suffering problems, they were assembling 5″ x 7″ picture frames. The witnesses testified that their production quota on this job was 304 frames per hour. This equals approximately one completed picture frame every twelve seconds.
[5] After the claimant reported problems with her left wrist while working in the saw and nail job, she later worked in other areas of the plant. The claimant began having problems with her right elbow and wrist while performing a job referred to as the “catcher.” Apparently, the catcher was the person on the end of the assembly line who would package finished products of both wood and metal picture frames in boxes. Both witnesses testified that they had performed this job and indicated that it was performed at a very rapid pace. The testimony indicated that the production rate for this job varied somewhat depending upon the size of the frames, but that it required at least 1,000 and sometimes as many as 1,800 picture frames per hour to be boxed. In addition to placing the completed picture frames in boxes, the catcher was also required to tape the boxes closed and affix appropriate labels. This job would have required the worker to perform a cycle of hand motions every two to four seconds.
[6] The claimant contends that her right elbow and wrist and left wrist problems were the result of her job-related activities. The respondents contend that the jobs being performed by the claimant were not rapid and repetitive, and alternatively, that the claimant cannot establish the occurrence of a compensable injury by objective medical findings.
[7] Since the injuries alleged in this case are nonspecific injuries, the claimant must meet the criteria of A.C.A. §
11-9-102(5)(A)(ii)(a). In order to satisfy those criteria, the claimant must establish by a preponderance of the evidence that the injury arose out of and in the course of her employment, that the injury caused internal or external physical harm to her body, the injury must have been caused by rapid, repetitive motion, and that the injury was the major cause of the claimant’s disability or need for treatment. Additionally, the occurrence of the compensable injury must be supported by objective medical findings as defined in A.C.A. §
11-9-102(5)(D).
[8] The administrative law judge held that the claimant met her burden of proof as to all elements of a compensable nonspecific injury to both wrists, and ordered the respondents to pay appropriate benefits. From that decision, the respondents have appealed.
[9] The initial issue in this case is whether or not the claimant’s job required rapid and repetitive motion. In the present case, we find that the claimant proved by a preponderance of the evidence that her job duties required rapid, repetitive motion as that term has been construed by the Court of Appeals inBaysinger v. Air Systems, Inc.,
55 Ark. App. 174 (1996) andKildow v. Baldwin Piano and Organ,
55 Ark. App. 194 (1997). In this regard, both the “saw and nail” job and the “catcher” job clearly required the claimant to make frequent and repetitive motions with her hands. A worker performing either of those two jobs would have had to have made a complete cycle of movement within a period of only a few seconds. Also, both jobs were hand intensive, requiring a worker to lift, grasp, hold, twist, or otherwise manipulate their hands and fingers in order to complete the required cycle of movement. In short, the nature and pace of the duties performed in these tasks indicate that each task required hand-intensive work which was both highly repetitive and which required a swift pace of hand motion.
[10] The next issue in this case is whether or not there is a causal relationship between the claimant’s injury and her employment. In the present case, the claimant reported her injuries to her employer as soon as they manifested themselves and the respondent did direct her to a doctor for treatment of them. Both of the claimant’s treating physicians, Dr. Robert M. Ford, a general practitioner in Harrisburg, Arkansas and Dr. John F. Ball, an orthopedist in Jonesboro, Arkansas, indicated that, in their opinion, the claimant’s condition was job related, and the type of complaints suffered by the claimant are those which would be expected from a cumulative trauma injury. Also, the claimant appeared to be a very credible witness. She did not exaggerate her symptoms nor was there any sign of malingering. In fact, at the time of the hearing, the claimant was still employed by the respondent. Also, the claimant’s testimony was supported very closely by Ms. Doyle, who at the time of the hearing, was also still employed by the respondent. In addition, there was no evidence developed which would have indicated any non-work-related cause for the claimant’s condition. In short, we find that the greater weight of the evidence establishes that the claimant’s condition arose out of her employment, and as such, her work-related injury was the major cause of her disability and need for treatment.
[11] We also find that the claimant established her right upper extremity injuries by objective findings. The claimant testified that she was suffering numbness, tingling, and pain in both of her wrists and right elbow. The claimant indicated that she would have numbness when gripping objects both at work and while carrying out ordinary household tasks. As a result of those complaints, Dr. Ford directed the claimant to undergo nerve conduction velocity tests to determine whether or not the claimant was suffering from carpal tunnel syndrome or other nerve entrapment. These tests were performed at the Methodist Hospital in Jonesboro, Arkansas by Dr. Valdan Milosavljevec. Dr. Milosavljevec indicated that the tests revealed mild median neuropathy at the claimant’s right wrist and right elbow. Clearly, this test provides objective evidence of the existence of an injury to the claimant’s body. Specifically, the nerve entrapment at her right elbow and wrist.
[12] However, no electro-diagnostic tests were ever performed on the claimant’s left wrist or arm. The only evidence of an injury to that part of the claimant’s body is the testimony of Dr. Ford. Dr. Ford based his diagnosis of left carpal tunnel syndrome solely on the claimant’s subjective complaints of pain. While Dr. Ball also referred to the claimant as suffering from bilateral carpal tunnel syndrome, he likewise never prescribed any objective diagnostic tests to be performed on the claimant’s left wrist and apparently based his diagnosis on statements from Dr. Ford.
[13] The case of Duke v. Regis Hair Stylists,
55 Ark App. 327
(1996), dealt with a claimant who was attempting to establish a cumulative trauma injury based solely on clinical tests such as Tinel’s and Phalens. The Court of Appeals held that such tests were not objective evidence as that term is defined by the Workers’ Compensation Act. The Court rejected the claimant’s assertion that such tests as that were reliable and accurate and could constitute objective medical findings, since these tests rely on subjective responses within the voluntary control of the patient. The Court held that the specific language of
Act 796 of 1993, prohibited the consideration of such evidence as objective findings. Consequently, we find that there was an objective basis for concluding that the claimant suffered a compensable injury to her right wrist and elbow. However, in accord with the decision in Duke v. Regis Hair Stylists, supra, we further find that the claimant did not establish a compensable injury to her left wrist with objective findings.
[14] Consequently, based upon our de novo review of all the evidence contained in the record, and for the reasons discussed herein, we find that the claimant proved by a preponderance of the evidence that she sustained a compensable injury to her right wrist and arm. Therefore, we find that the administrative law judge’s decision in this regard must be, and hereby is, affirmed. However, we also find that the evidence was insufficient for the claimant to meet her burden of proof in regard to the alleged injury to her left wrist and arm. Therefore, we find that the administrative law judge’s decision in this regard must be, and hereby is, reversed. The respondent is hereby ordered and directed to pay to the claimant all appropriate benefits based upon her right wrist and arm injury.
[15] All benefits awarded herein shall be paid in a lump sum without discount and this award shall bear interest at the maximum legal rate. The claimant’s attorney is also awarded the maximum attorney’s fee as provided for in A.C.A. §
11-9-715, plus an additional $250.00 for prevailing in part upon this appeal.
[16] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman
[17] Commissioner Humphrey concurs.
[18] Commissioner Wilson concurs in part and dissents in part.
[19] CONCURRING DISSENTING OPINION
[20] I must respectfully dissent from the majority opinion finding that claimant sustained a compensable injury to her right upper extremity. However, I concur with the majority finding that claimant has failed to prove the compensability of an injury to her left upper extremity.
[21] In my opinion claimant has failed to prove the compensability of her right upper extremity problems. I would place greater emphasis on the Lay v. U.P.S., 57 Ark. App. ___, ___ S.W.2d ___ (1997) decision than the majority has done. Claimant’s difficulties did not begin, according to claimant’s testimony, until after she transferred to the catcher position. Using claimant’s figures that she would handle 1800 frames a day, I calculate, that on average, taking lunch and breaks into consideration, that claimant handled one frame appropriately every 4 seconds. However, merely because she handled a frame every 4 seconds does not equate into a finding claimant actually had to move her hand or extremities every 4 seconds. Rather the evidence indicates claimant would maintain her position and collect 4 to 6 frames before moving her extremities and placing the frames in a box. This would mean that claimant did not move her extremities except every 16 to 24 seconds. In my opinion motion only 2 to 3 times a minute cannot be rapid, repetitive motion. Therefore, I must respectfully dissent from the finding of compensability for claimant’s right upper extremity.
[22] MIKE WILSON, Commissioner
