McQUANY v. SIEMEN’S ENERGY AUTOMATION, 1998 AWCC 150

CLAIM NO. E605586

NATHAN McQUANY, EMPLOYEE, CLAIMANT v. SIEMEN’S ENERGY AUTOMATION, EMPLOYER, RESPONDENT and TRAVELERS, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 15, 1998

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

Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE ROBERT MONTGOMERY, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on August 14, 1997. In that opinion and order, the administrative law judge found that the claimant proved by a preponderance of the evidence that he sustained compensable bilateral carpal tunnel syndrome injuries. After conducting a denovo review of the entire record, we find that the decision of the administrative law judge must be reversed. [3] The claimant became employed in the respondent’s motor manufacturing plant approximately five years prior to the hearing held on May 7, 1997. In June of 1993, while employed as a stator core processor, the claimant began to experience back problems, and was ultimately assigned a 20 pound lifting restriction as a result of these problems. The respondent transferred the claimant to light-duty status in the label and packaging section. Mr. Larry Clemons, the production supervisor for the plant, testified that there were two potential jobs involved in the label and packaging section: (1) prepping the motors (which is considered a light-duty job) and (2) the actual labeling and packaging of motors, which is not considered a light-duty job. According to Mr. Clemons, the claimant was assigned the specific job of prepping motors, and was never assigned to the actual labeling and packaging motors. [4] The claimant testified that he was off work for approximately 12 or 13 weeks following his back problems, when he came back to work in the light-duty associated with the packaging area. The claimant testified that he first started noticing numbness in his fingers in approximately the middle of February, 1996. The claimant was later diagnosed with bilateral carpal tunnel syndrome which the claimant associates with his work-related duties. [5] Since the claimant contends that he sustained an injury after July 1, 1993, this claim is controlled by the Arkansas Workers’ Compensation Law as amended by Act 796 of 1993. 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. In the present claim, the claimant does not contend that his injury was caused by a specific incident and identifiable by time and place of occurrence. Instead, he contends that he 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) are controlling, and the following must be satisfied:

(1) proof by a preponderance of the evidence of an injury arising out of an in the course of his 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)).

[6] See Lay v. United Parcel Service, 58 Ark. App. 35, 944 S.W.2d 867
(1997). [7] In Richard E. Throckmorton v. J J Metals, Full Workers’ Compensation Commission, Aug. 14, 1995 (Claim No. E405318), this Commission interpreted the term “rapid” to refer to that which is marked by a notably high rate of motion, activity, succession, or occurrence, requiring notably little time, and without delay or hesitation. This Commission interpreted the term “repetitive” to refer to the exact same thing again and again. Consequently, this Commission interpreted the statutory requirement of “rapid repetitive motion” in Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) (Repl. 1996) to require 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 an extended period of time. Id. However, on numerous occasions, the Court of Appeals has held that the Commission’sThrockmorton statutory interpretation was too restrictive, and the Court has provided the Commission guidance and precedent in several published opinions. See generally Baysinger v. AirSystems, Inc., 55 Ark. App. 174, 934 S.W.2d 230 (1996), Lay v.United Parcel Service, 58 Ark. App. 35, 944 S.W.2d 867 (1997);Kildow v. Baldwin Piano Organ review granted, No. 97-828 (Ark. Sept. 11, 1997) 58 Ark. App. 194, 948 S.W.2d 100 (1997); Rudick v.Unifirst Corp., 59 Ark. App. ___, ___ S.W.2d ___ (January 28, 1998); High capacity Products v. Moore, 60 Ark. App. ___, ___ S.W.2d (February 25, 1998). In Baysinger, the Court addressed the repetitive element of “rapid repetitive motion,” and found the Commission’s statutory analysis too restrictive, stating:

The Commission erred in requiring appellant to prove that his carpal tunnel syndrome was the result of the exact, or almost exactly, the same movement again and again. It appears from the findings of the Commission . . . that although the evidence indicates that different portions of claimant’s job duties may involve rapid repetitive motion, he is precluded from recovery because “there is no indication that the different steps involve the same movement again and again for prolonged periods of time.” We feel that the Commission’s interpretation of the statute is too restrictive and precludes multiple tasks — such as the hammering and grinding motions performed by claimant — from being considered together to satisfy the requirements of the statute.

[8] Baysinger, 55 Ark. App. At 176, 934 S.W.2d ___. [9] The Court of Appeals addressed the rapidity element in Lay
and Kildow and the Court did not adopt the Commission’sThrockmorton test for rapidity (i.e. “a notably high rate of activity”). See also Rudick, supra. [10] In Lay, one of the claimant’s alternative arguments was that his injury was compensable as a “rapid repetitive motion” injury. The claimant asserted that his motions were rapid because he made nearly eighty deliveries per day in a ten to eleven hour shift, an average of one delivery every eight minutes. He did not claim that driving his delivery truck or actually making the deliveries constituted a part of his rapid repetitive tasks. Instead he claimed that loading and unloading packages, and lifting and replacing an electronic clipboard, constituted rapid activity. [11] The Court of Appeals affirmed the Commission’s denial of benefits in Lay. In reaching its decision, the Court stated:

Although we do not provide a comprehensive definition of what constitutes “rapid repetitive motion,” we conclude that the motions as described by Lay, separated by periods of several minutes or more, do not constitute rapid repetitive motion under the meaning of § 11-9-102(5)(A)(ii)(a).

[12] Lay, 58 Ark. App. at 41, 944 S.W.2d at 870. [13] In Kildow, the Court observed that in its ordinary usage, the term “rapid” means “swift” or “quick”. Kildow, 58 Ark. App. at 200, 948 S.W.2d at 103 (citing Concise Oxford Dictionary 1137 (9th ed. 1995)). The Commission found that the claimant failed to prove that her work activities were “rapid.” However, the Court determined that the Commission’s decision was not supported by substantial evidence, concluding:

The only evidence regarding appellant’s job duties came from her own testimony before the administrative law judge. No company representatives disputed her account of her daily tasks . . . [A]ppellant testified that her job entailed assembling electrical components on boards by gripping and twisting short wires on small pieces for 8 to 10 hours a day, 5 to 6 days a week on an assembly line. Further, when appellant returned to work under her doctor’s light-duty orders, she was restricted to placing no more than one board per minute onto the line. It is clear to us that reasonable minds could not argue that appellant’s testimony does not establish that her job did involve swift or quick motion. While testimony on how many boards appellant assembled in a given day might better prove rapidity, it is a matter of common sense that reasonable minds would expect work on an assembly line to move at a swift or quick pace. . . . Here, when considered together, reasonable minds could not agree that appellant’s assembly line work of gripping, twisting, and squeezing wires to secure small components to boards all day long does not qualify as “rapid repetitive” in the ordinary and generally accepted meaning of the words.

[14] Kildow, 58 Ark. App. at 199-201, 948 S.W.2d ___. [15] In High Capacity Products v. Moore, ___ Ark. App. ___, ___ S.W.2d ___ (February 25, 1998), the Court affirmed the decision of the Full Commission find that the claimant proved by a preponderance of the evidence that her job duties producing electrical meter boxes required rapid repetitive motion. In reaching this decision the Court summarized the following relevant evidence:

Moore, a thirty-eight-year-old woman, worked for appellant for approximately five years. She used an air gun to assemble blocks with a quota goal of one thousand units per day. She was required to assemble each block by using an air-powered appliance to attach two nuts to each block. She would hold the parts of the unit with her left hand and work the air gun with her right hand. She averaged using the air gun to attach one nut every fifteen seconds. The majority of her time was consumed in this quota assembly. Her job required three maneuvers to be repeated in succession all day: assembling the separate parts, using the air-compressed equipment to attach the parts together with nuts, and throwing the units into a box.

[16] In reaching its decision, the Court commented that “we believe that this is the most compelling case demonstrating rapid repetitive motion presented to this Court to date.” Id. At ___, ___ S.W.2d ___. [17] In the present case, we find that the claimant failed to prove by a preponderance of the evidence that his injury was caused by work-related rapid repetitive motion. Specifically, we find that the claimant has failed to prove that his work duties for the respondent require “rapid” motion. In assessing whether or not the claimant’s job duties required rapid repetitive motion, we note that the evidence on this issue in this case essentially consists of two components, (1) a videotape of first shift employees performing “motor prepper” duties and the “labeler/packager” duties and (2) the hearing testimony of Mr. Dwight Larry, Mr. Jimmy Meek, Mr. Lewis Neal, Mr. James Jackson, Mr. Lavell Stewart, the claimant, and Mr. Clemons, who each reviewed the videotape and agreed that the tape accurately reflected the job duties of a motor prepper and the job duties of a person performing labeling and packaging. The videotape did not accurately reflect the nature of the claimant’s job duties to the extent that the claimant also apparently performed some paperwork in addition to the motor prepping duties that he was assigned (and to whatever degree that he engaged in labeling and packaging to which he was apparently not assigned by the respondent). In addition, the various witnesses speculated as to whether or not the videotape of first shift employees accurately reflects the rate at which second shift employees performed their duties (i.e., whether or not the videotape accurately reflects the speed with which motor prepper and labeling and packaging duties were performed on second shift where the claimant worked). [18] The videotape depicts a “motor prepper” performing essentially the following actions to complete her work on a single motor. The employee picks up several nuts and bolts and places them on a motor to be prepped. The employee then removes a small cover from the side of the motor, picks up two labels and places them on the motor. She makes a turning motion with her hand and strokes a paintbrush several times. The employee attaches another label with four pins and a hammer before attaching one more label by hand. This is the position to which the claimant was assigned according to Mr. Clemons. [19] The videotape also depicts a person performing labeling/packaging duties by first attaching another label to the motor. The employee then transfers the motor from a conveyor to a pallet using an electric hoist. The employee then applies a wrench apparatus to the motor. The employee removes a section of “shrink wrap” from a role and places the wrap on the motor, then uses a heat instrument to shrink the wrap over the motor. [20] After reviewing the videotape, we reach the same conclusion reached by the administrative law judge in this case, that the pace of the duties as indicated on the videotape were not “swift” or “quick”. However, the administrative law judge relied on the testimony of the witnesses to conclude that the pace at which the claimant actually performed his duties on second shift were significantly greater than the pace indicated on the videotape. [21] In this regard, each of the witnesses agreed that the second shift generally produces more motors per day than the first shift because the second shift works at a faster pace than the first shift over the course of an eight hour shift. [22] However, to the extent that the claimant asserts (and the administrative law judge found) that the claimant on second shift worked faster than the pace of the duties indicated on the videotape, our review of the videotape indicates exactly the opposite, i.e., our calculations indicate that the claimant by necessity must have worked at a significantly lesser pace than that indicated on the videotape. [23] In this regard, our analysis of the videotape indicates that the female first shift employee demonstrating the “prepper” job performed her demonstration at a rate of one motor completed in almost exactly three minutes (equal to a rate of one-hundred-sixty (160) motors per conveyor line per eight hour shift). Likewise our analysis of the videotape indicates that the male first shift employee demonstrating the “packaging” job also performed his demonstration at a rate of one motor completed in almost exactly three minutes (also at a rate equal to one-hundred-sixty (160) motors per conveyor line per eight hours). [24] Therefore, at the rate of the work demonstrated on the videotape, the plant could produce approximately three-hundred-twenty (320) motors per conveyor line each day during the combined production of the first and second shifts. Likewise, at the rate demonstrated in the videotape, the plant could produce six-hundred-forty (640) motors per day if both conveyor lines operated throughout the course of the first shift and the second shift. [25] However, Mr. Clemons, the respondent’s production supervisor, testified that the two shifts combined only produce an average of approximately one-hundred-ten (110) motors per day, indicating that the rate of production demonstrated in the videotape is actually up to six times faster (640 motors versus 110 motors) the plant’s average rate of actual production. In reality, the plant’s rate of actual production (110 motors per 16 hours) indicates that the “prepper” and the “packager” each operate in reality at a significantly lesser speed than the pace demonstrated in the videotape to complete one motor in almost exactly three minutes. [26] Moreover, although the testimony of the various witnesses disagreed somewhat as to the actual number of motors produced by the second shift per day, the most reasonable rate of production based on the testimony of the several witnesses appears to be approximately sixty to eighty motors per eight hour shift. By our calculations, if the second shift used only one conveyor line to produce eighty motors per eight hour shift the prepper and the packager would have approximately six minutes each to perform their various duties which were performed in three minutes each based on the videotape submitted into evidence. Likewise if the second shift produced approximately sixty motors per eight hour shift using one conveyor line, the prepper and packager would each have approximately eight minutes each to perform their duties which were demonstrated in three minutes on the videotape. Of course, if the second shift produced its eighty motors using two
conveyor lines, then the prepper and packager would each have approximately twelve minutes within which to perform their duties which were demonstrated on the videotape being performed within three minutes. Likewise, if the second shift produced only sixty motors per shift using two conveyor lines, then the prepper and the packager would have approximately sixteen minutes each to perform their job duties which were demonstrated to be performed in three minutes on the videotape submitted into evidence. [27] Moreover, after reviewing the videotape submitted into evidence, the testimony of the various witnesses, and all other evidence properly in the record, we find that the greater weight of the evidence indicates the claimant’s rate or speed of production was in reality performed at a significantly slower pace than that depicted on the videotape, contrary to the findings of the administrative law judge. Specifically, we find that the nature and extent of the job duties demonstrated on the videotape and performed within a three minute period per motor on the videotape would clearly not constitute “rapid” motion (motion performed “swiftly” or “quickly”) when performed in reality at intervals of between six minutes and sixteen minutes per motor. [28] Therefore after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to show by a preponderance of the credible evidence that his job duties required rapid repetitive motion. Consequently, we find that the claimant failed to prove by a preponderance of the evidence that he sustained compensable bilateral carpal tunnel syndrome injuries. The decision of the administrative law judge is therefore reversed. [29] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[30] Commissioner Humphrey dissents. [31] DISSENTING OPINION
[32] I must respectfully dissent from the majority opinion finding that claimant has failed to prove that he sustained a compensable injury in the form of bilateral carpal tunnel syndrome. Specifically, the majority has found that claimant’s work activities were not “rapid.” [33] To reach its conclusion, the majority has relied on a series of calculations predicated largely on the videotaped work of two employees other than claimant. While the numbers produced from these cipherings certainly have a useful appearance, the Arkansas Court of Appeals’ reasoning in Kildow leaves me doubtful that cold equations are the sine qua non of resolving rapid repetitive motion claims. After all, the Court in Kildow had no
appreciable numerical evidence before it, yet plainly stated that “it is a matter of common sense that reasonable minds would expect work on an assembly line to move at a swift or quick pace.” If the Court could so find in Kildow, I am not at all certain why we cannot do likewise in the case at hand where it has been credibly suggested that claimant worked faster than the employees depicted in the videotape (the majority’s calculations notwithstanding). [34] As set out above, I must respectfully dissent from the majority opinion. [35] PAT WEST HUMPHREY, Commissioner