CLAIM NO. E515860
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 18, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE MICHAEL HAMBY, Attorney at Law, Greenwood, Arkansas.
Respondents represented by the HONORABLE EARL BUDDY CHADICK, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on June 11, 1996. In that opinion and order, the administrative law judge found that the claimant failed to prove that she sustained a compensable injury to her cervical spine. After conducting a de novo review of the entire record, we find that the administrative law judge’s decision must be reversed.
[A.] She never reported any injury to her neck. [7] Since the claimant contends that she 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. 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 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:[Q.] You paid the claim up until Dr. Still diagnosed it as a neck problem or referred her. Why did you not pay the claim after that?
[8] In the present claim, we find that the claimant established each of the requirements necessary to establish a compensable injury caused by rapid repetitive motion. In this regard, objective medical findings clearly indicate the presence of a cervical injury causing internal harm to the body. [9] In addition, we find that the preponderance of the credible evidence establishes that the claimant’s injury arose out of and in the course of her employment, and we find that the work-related injury was the major cause of the claimant’s disability and need for medical treatment. [10] In reaching this decision, we note that Dr. Still made the following comment in his report dated June 5, 1995:(1) proof by a preponderance of the evidence of an injury arising out of and 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)).
[11] However, Dr. MacDade ultimately opined regarding the nature and cause of the claimant’s extremity problems as follows in a January 25, 1996 letter to the claimant’s attorney:Ms. Thornberg has nothing that I can find on the wrists, elbows or shoulders. She does have a lot of pain in her neck. She has had a family history with cervical disks, she believes that this may be a problem. Pressure here does reproduce some of the pain. I think it is incumbent that we have this evaluated because I really do not believe that carpal tunnel or a great measures [sic] of tenosynovitis is a problem here. I have talked with Ms. Jamison this morning. I cannot connect this with the work she is doing. I will ask that she be seen by Dr. MacDade for evaluation of her neck.
[12] In assessing whether the claimant’s work-related duties were the major cause of her need for medical treatment and subsequent disability related to her cervical spine, we note that the respondents did not introduce any evidence suggesting that the claimant had any preexisting symptoms of any nature prior to her being hired by the respondent. The respondent also did not present any evidence of any nonwork-related activities which may have caused or contributed to the claimant’s cervical disk herniation other than Dr. Still’s history notation that the claimant has a family history of cervical disk problems. [13] In assessing the relative weight to be accorded the opinions of Dr. Still and Dr. MacDade, we note that Dr. Still is a hand specialty plastic surgeon who referred the claimant to Dr. MacDade, a neurosurgeon, for cervical evaluation. In the present case, we find that the causation opinion of the claimant’s treating neurosurgeon is entitled to greater weight than the opinion of the plastic surgeon hand specialist who referred the claimant for neurosurgical evaluation. [14] We also find that the preponderance of the evidence establishes that the claimant’s injury was caused by rapid repetitive motion during the course of her employment duties shortly after the claimant went to work for the respondents. As a new hire in her probationary period, the claimant was started on evisceration. Sometime later, after her symptoms became persistent, the claimant was assigned to light duty in the “paw room”. [15] The claimant’s left arm started going numb for the first time on December 21, 1994, and the claimant reported the condition to the third shift plant nurse. According to the claimant’s Employee Health Record, the claimant was assigned to “lunging” at the time, and the claimant was advised to rotate jobs. [16] Ms. Carolyn Shores, the third shift plant nurse testified that new hires have a 20 day conditioning period to work into the job. With regard to the nature of the new hire duties, Ms. Shores testified:Her cervical and right arm complaints were not typical of carpal tunnel syndrome. They were typical of a cervical radiculitis. Dr. Still’s suspicions, and my workup, confirmed that. She was operated upon for a cervical disc from which she was symptomatic.
There is no question that her repetitive job-related activities caused this problem. (Emphasis added.)
It is well recognized that litany of small injuries can result in a major problem. A single event is oft times not present.
[17] Ms. Shores’ testimony indicates that the “regular duty” assignments are “mirror trimming” and “lunging”. The assignments considered “light duty” include “paws”, “peeling gizzards”, and “the steam room”.On new hires when they first start, you don’t really know what job they are going to be able to do until they try different jobs. Each new hire is tried on two different jobs so they won’t have to be using the same muscle groups all night long.
With regard to “mirror trimming”, Ms. Shores testified:
[Q.] Is that rapid, repetitive motion?It is in the evis department. There is a mirror and the birds come down it; and if they have a bad spot on them, you trim it off; or if there is more than one in a row, you put it back and it goes over to salvage.
[A.] Not normally; no. [18] The claimant testified as follows regarding duties in “lunging” and “mirror trimming”:[A.] Well, not usually; because unless a machine is messed up or something and they have other people that comes over and helps.
[Q.] Are there a lot of chickens that have bad parts or pieces of chicken that have bad parts on them to require you to do a lot on that job, do a lot of repetitive motion?
[Q.] What did mirror trimming and lunging entail?[Q.] In early ’95, what position did you hold at Tyson’s?
[A.] I was mirror trimming and lunging, and sometimes I worked in the paw room.
[Q.] Did you do that as quickly as you could? [A.] Yes. [Q.] Was it on a conveyor line?[A.] It consisted of pulling guts — the lunging consisted of pulling the guts out of the chicken and putting you [sic] hands in the birds and taking the lungs out and passing it down the line, and mirror trimming consisted of looking in a mirror and having scissors and cutting bad legs, wings, bad spots; screen birds and cut stuff off of them.
[19] The claimant’s Employee Health Record indicates that the claimant’s second complaint occurred on March 5, 1995. That notation reads:[A.] Yes. Well, not conveyor belt; it is like shackles going down the line.
[Q.] And you have to do it, do one and then take the next one as it came by; is that correct?
[A.] Yeah; when the chickens come by lunging, you just put your hands in them and pull guts, put your hands in the best you can. Sometimes you couldn’t keep up.
[20] Ms. Shores testified that the claimant first reported neck complaints, in addition to her upper extremity problems, on April 10, 1995. Ms. Shores’ notes from that date indicate:Says fingers on R/H are tingling — Says lunged all 3 rounds Fri night — Says has been taking Ibu on her on [sic] since she started — Started on TX program 800 mg Ibuprofen tid q 4 hrs x’s 10 working days . . .
[21] Additional notations of neck problems were made on June 12, 1995, June 15, 1995, August 8, 1995, and December 7, 1995. [22] The claimant testified that she became assigned to the paw room in April or May of 1995. Three witnesses testified regarding the various duties in the paw room. The claimant testified as follows: [Q.] What did you do in the paw room?c/o pain B/hands, arm says up back of neck — Says mirror trimming — Says for all night — Says [illegible word] short handed no one else to do job — Cathy started working back into regular job last wk — Wristlett given for support
[Q.] How many scoops do you put in a bag? [A.] There was about three scoops to a bag. [Q.] What do you do with the bag once you fill it?[A.] I scooped the paws (chicken feet) up and put then into 10 to 11 pound bags. Then you pull the bag out, you scoop, you pull the bag.
[Q.] So, about 1200 bags a night? [A.] I’m not for sure. [Q.] Did you do that as quickly as you could? [A.] Yes. [Q.] Was that also on a conveyor line? [A.] That was a conveyor belt; yes.[A.] You pull it out and you put it in the tub and then the person packs it to go out.
[Q.] How many of those would you do in an eight hour shift?
[A.] You do about 300 boxes a night and we had four bags in each box.
[23] Priscilla Tatum, a former Tyson employee, described the paw room duties as follows:[Q.] Would you also do other (light duty) jobs besides working in the paw room, besides bagging?
[A.] I grade the chicken with my hands and then I went and dumped the barrels.
[Q.] Now, did you fill up any bags or anything?You either graded on the lung [sic?] belt or the short belt. The short belt is where the feet first came out of the chiller. That person up there, you pulled off any knubbies, any feet where the overscalding ammonia burns were real bad, and then you graded. As you were pulling all this other stuff off, you had to grade the A grade from the other grade and then it went to the long belt and then that person also cuts any knubbies or anything that was missed and then graded them again.
[24] Ms. Tatum testified that the bags were supposed to weigh 11.5 pounds each, that a normal night was 280 — 300 boxes per night, and that each box contained 4 bags (similar to the claimant’s testimony of approximately 1200 bags). [25] Mr. Bundy described the claimant’s duties in the paw room as follows: [Q.] What job was she given?[A.] Yes, sir; there was an undergrade size that was bagged and then an A grade size that was bagged.
[A.] She was supposed to grade or peel the yellow off of the feet.
[Q.] Did she perform the paw room jobs without complaint?
[A.] Well, she complained a little bit, but everybody up there does. I mean, nobody likes to grade; it is pretty busy; it gets pretty busy and pretty hectic sometimes.
. . . .
[26] Mr. Bundy confirmed that baggers packaged approximately 275-300 boxes of 11.5 lb. bags of chicken feet (4 bags per box) in a normal shift. Therefore, the testimony consistently indicates that bagging required performing an average of 7 — 7 1/2 scooping operations per minute with each scoopful weighing between 3 and 4 pounds. However, Mr. Bundy twice testified that the majority of the claimant’s duties in the paw room were grading (pulling the feet from A grade to undergrade) or peeling yellow. [27] In short, the preponderance of the evidence establishes that the radicular symptoms associated with the claimant’s injury started during the period that the claimant routinely engaged in “lunging” and “mirror trimming”, shortly after she went to work for the respondents, and Dr. McDade has opined that the claimant’s cervical injury was caused by her repetitive work for the respondents. In addition, the preponderance of the evidence in the record indicates that the “lunging” and “mirror trimming” duties she performed at that time were assembly line type evisceration positions requiring rapid repetitive pulling motions using the hands and rapid repetitive use of scissors, respectively. [28] Consequently, after conducting a de novo review of the entire 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. Therefore, we find that the decision of the administrative law judge must be, and hereby is, reversed. [29] All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996). [30] IT IS SO ORDERED.[Q.] You indicated that in the paw room things are hectic?
[A.] They can be sometimes. If the scalders are not working right, it can be hectic; yes, sir.
[Q.] Would you say that it required a lot of rapid and repetitive movement up there.
[A.] Only at times, if the scalders downstairs, if something happens to it and there would be a lot of yellow or if the scalder is set too hot, there will be a lot of overscald; but 90 per cent of the time, no, sir; it is pretty mellow.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[31] Commissioner Wilson concurs in part and dissents in part.[32] CONCURRING AND DISSENTING OPINION
[33] I concur in part and dissent in part from the majority’s decision finding that claimant has proven a compensable cervical injury. Based upon my de novo review of the entire record, I find that claimant has failed to meet her burden of proof.