NEWBY v. M. F. BLOCK COMPANY, 1996 AWCC 261

CLAIM NO. E511521

ROBIN L. NEWBY, EMPLOYEE, CLAIMANT v. M. F. BLOCK COMPANY, EMPLOYER, RESPONDENT and UNION STANDARD INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 28, 1996

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

Claimant appears pro se.

Respondents represented by the HONORABLE WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] The respondents appeal the decision of the Administrative Law Judge’s opinion and order dated February 8, 1996. In that decision, the Administrative Law Judge found that the claimant established by a preponderance of the evidence that she suffered a compensable injury in the form of carpal tunnel syndrome. Consequently, the Administrative Law Judge ordered that the respondents pay the medical expenses associated with the claimant’s treatment. After conducting a de novo review of the entire record, we find that the decision of the Administrative Law Judge must be reversed.

[3] The claimant has worked for the respondent employer, an insurance agency, for over eight years. According to her testimony, she has had trouble off and on with her right hand and wrist since the first year of her employment and occasionally wore a wrist splint to relieve her symptoms. However, in approximately May of 1995, the pain in her wrist became so severe that it began to keep her up at night and interfere with her ability to do her job. The claimant sought treatment for her problem from Dr. Hazzard in June of 1995. [4] After examination, x-rays and other tests, Dr. Hazzard diagnosed carpal tunnel syndrome in the claimant’s right wrist and scheduled her for surgery. Carpal tunnel release surgery on the right median nerve was performed by Dr. Hazzard on July 6, 1995. The claimant then filed for workers’ compensation benefits contending that she had developed carpal tunnel syndrome as the result of rapid repetitive motions necessitated by her job duties. The claimant only missed two days of work as the result of her injury and consequently seeks benefits only for the medical costs involved in treating her carpal tunnel syndrome. The respondents controvert the claim in its entirety. [5] Since the claimant contends she suffered an injury after July 1, 1993, her claim is controlled 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 Act., including the requirements common to all categories of injuries. See, Jerry D. Reed v. Con Agra Frozen Foods, Full Workers’ Compensation Commission, opinion filed Feb. 2, 1995 (Claim No. E317744). In the present claim, the claimant does not contend that her injury was caused by a specific incident and identifiable by time and place of occurrence. Instead, she contends that she sustained injury as a result of rapid repetitive motion. Consequently, the requirements of Ark. Code Ann. § 11-9-102 (5)(A)(ii)(a) are controlling, and 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 her employment (See, Ark. Code Ann. § 11-9-102
(5)(A)(ii); Ark. Code Ann. § 11-9-102
(5)(E)(ii). See Also, 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 (See, Ark. Code Ann. § 11-9-102
(5)(A)(ii)).
3. Medical evidence of the injury 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)).
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)).
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)).

[6] If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, she fails to establish the compensability of the claim, and compensation must be denied.Reed, Supra. [7] We find that the claimant has failed to establish by a preponderance of the evidence that her injuries are the result of rapid repetitive motion as is required by Ark. Code Ann. §11-9-102 (5)(A)(ii)(a). In reviewing this statutorily required showing, we have stated:

The term “rapid” is commonly used 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. . . The term “repetitive” is commonly used for the act of doing the exact same thing again and again. . . . Thus, we find 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, the same movement again and again over extended periods of time. Obviously, the determination of whether a certain employment duty satisfies the statutory requirement for rapid repetitive motion is a fact question which must be decided based on the evidence presented in each case . . . . the evidence must show a causal relationship between the disabling condition and employment related activity satisfying the statutory requirement of rapid repetitive motion.

[8] Throckmorton v. J J Metals, Full Commission Opinion, August 14, 1995 (Claim No. E405318) (Citations omitted). In the present case, the claimant testified that she engaged in a wide range of duties in her position. She stated she used a typewriter, computer, copier, fax machine, stapler, and staple puller in performing her duties. According to the claimant, her duties included talking on the phone with clients, preparing loss and claim forms both by hand and with a typewriter or computer, destroying and “thinning” files, stapling documents together and pulling staples from documents. She indicated, however, that her primary job duty consisted of completing claim forms and keeping claim files up to date with medical bills, reports, etc. The claimant testified that she either stapled documents or pulled staples from documents approximately one thousand times per day. She further stated that she spent “probably eight hours” a day writing and half a day using her typewriter. She indicated that most of her typing involved the filling out of forms, but that the number of forms she had to complete varied from day-to-day. She also agreed that at least some of her time was used in properly lining up the forms so that as she typed the information was placed in the correct areas. The claimant additionally indicated that she spent approximately one and one-half hours a day on the telephone. She also spent about an hour a day filing documents and destroying documents by tearing them with her hands. However, the claimant also stated “I’m not doing the same thing for eight hours” a day. Furthermore, she acknowledged that as she performed each of these duties, her hands were used in a different manner and were in a different position. She stated that “compared to most” she was not a fast typist. Finally, she indicated that all of these duties were spread out over a day and accomplished at various times. She testified in this regard that in a typical day she might fill out some forms or do a report, then talk on the phone for a while, then do some typing, then some filing and faxing, then fill out some more forms, then talk on the phone again. In short, by her own testimony, she did not engage in “the exact, or almost exactly, the same movement again and again over extended periods of time.” Rather, she engaged in a variety of movements over the course of a day. There was no testimony to indicate, for example, that she did all of her typing in one continuous block of time. Further, she specifically stated that the one thousand stapling or staple pulling duties were spread out over an entire day. [9] Even assuming that the claimant’s duties involve repetitive motions, there is no evidence in the record to establish that these motions were accomplished in a rapid fashion. One thousand stapling jobs a day, over the course of an eight hour day, works out to just a little over one stapling job every thirty seconds. This does not equate to a rapid motion. Likewise, as an admittedly slow typist whose typing duties do not occur in a contiguous block of time, but are rather broken up over the course of a day, the claimant has failed to establish her typing duties involved rapid repetitive motions occurring over an extended period of time. Additionally, there is no evidence that the claimant was required to complete a certain number of forms or typing jobs each day or use the stapler or staple puller a set number of times each day. Rather, by her own testimony, the amount of work in each of her various duties varied from day to day. In short, we find that the claimant has failed to establish by a preponderance of the evidence that her job entailed rapid repetitive motion on her part. [10] In addition to the above, medical opinions addressing the issue of compensability must be stated within a reasonable degree of medical certainty. Ark. Code Ann. § 11-9-102 (16). The only medical evidence addressing the issue of compensability is a one sentence letter from Dr. Hazzard dated June 30, 1995, in which Dr. Hazzard states:

Due to the repetitive nature of Mrs. Newby’s office work, this is the possible etiology of her carpal tunnel syndrome.

[11] We find this opinion is not stated with sufficient probability to satisfy the above-stated requirements of Ark. Code Ann. § 11-9-102
(16). [12] In conclusion therefore, based upon our de novo review of the entire record, we find the claimant has failed to establish by a preponderance of the evidence that she suffers from a compensable instance of carpal tunnel syndrome. Specifically, we find that she has failed to establish by a preponderance of the evidence that in the performance of her job duties she engaged in rapid repetitive motion as that term is used in Ark. Code Ann. § 11-9-102 (5)(A)(ii)(a). As a result, we find that the claimant has failed to make the statutorily required showing that her carpal tunnel syndrome is the result of job related rapid repetitive motion. Consequently, the decision of the Administrative Law Judge awarding benefits for the claimed injury must be, and hereby is, reversed. [13] IT IS SO ORDERED.

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

[14] DISSENTING OPINION
[15] I must respectfully dissent from the majority opinion finding that claimant failed to prove that her job duties involved rapid repetitive motion, as defined by Throckmorton v.J. J. Metals, Full Commission Opinion filed August 14, 1995 (Claim No. E405318).

[16] Near the conclusion of the hearing on this matter, claimant (who has done an admirable job of pro se representation both at the hearing and Full Commission levels) offered the following perceptive statement:

No. I’d just try to explain what I do during the day, and I know I’m not doing the same thing for eight hours, but I do feel that my wrist and things were getting as much activity as someone that does do the same thing for eight hours a day.

[17] Claimant has, in one sentence, summed up the heart of what is most unfortunate about the rapid, repetitive motion requirement and its interpretation in Throckmorton. This Commissioner has lost count of how many claimants with a genuinely diagnosed carpal tunnel syndrome have been denied compensation simply because the motions required by their job duties, while hand intensive (if not fast as well, though the majority has found otherwise herein), are less than robotic. [18] Claimant’s brief contains yet another statement worth noting:

I understand the reason behind the recent distinction regarding carpal tunnel syndrome. As the law reads, the key phrase reads RAPID REPETITIVE MOTION. When I turned in my claim, I was told this meant if I rung chicken necks all day. (Emphasis in original).

[19] If the morale of Arkansas’ workers should ever appear low, one need go no further than the state of its workers’ compensation laws to see why. [20] Again, I must respectfully dissent from the majority opinion. [21] PAT WEST HUMPHREY, Commissioner