Rudick v. Unifirst Corp.

Brenda Ann RUDICK v. UNIFIRST CORPORATION

CA 97-611                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                      Divisions II and III
               Opinion delivered January 28, 1998


1.   Workers' compensation -- rapid repetitive motion -- Commission's standard
     previously rejected. -- The appellate court has previously
     rejected the Workers' Compensation Commission's standard
     regarding the elements constituting "rapid repetitive motion."

2.   Words & phrases -- "rapid" defined. -- In its ordinary usage,
     "rapid" means swift or quick.

3.   Workers' compensation -- rapid repetitive motion -- "rapid" element --
     showing of "notably high rate of activity" not required. -- The
     appellate court has not required a showing of "a notably high
     rate of activity" for establishment of the "rapid" element of
     rapid repetitive motion.

4.   Jurisprudence -- legal reasoning -- legislative interpretion -- subsequent
     cases decided upon basis that prior meaning remains. -- Where
     legislative interpretation is concerned, legal reasoning
     attempts to fix the meaning of the word; when this is done,
     subsequent cases must be decided upon the basis that the prior
     meaning remains; the meaning is made clear as examples are
     seen, but the reference is fixed.


5.   Workers' compensation -- case reversed for Commission to apply appellate
     decisions to test for rapid motion. -- Concluding that the Workers'
     Compensation Commission should apply recent appellate
     decisions to test for rapid motion, the court of appeals
     reversed and remanded the case to the Commission for its
     further consideration.


     Appeal from the Arkansas Workers' Compensation Commission;
reversed and remanded.
     Tom Thompson, for appellant.
     Womack, Landis, Phelps, McNeill & McDaniel, by:  Richard
Lusby, for appellee.

     D. Franklin Arey, III, Judge.
     This appeal arises from the Workers' Compensation Commission's
denial of benefits to the appellant, Brenda Ann Rudick.  The
Commission affirmed and adopted the administrative law judge's
opinion; the ALJ found that a rocking motion made by appellant six
times per minute to perform her job was not sufficiently rapid to
constitute a "rapid repetitive motion" under Ark. Code Ann.  11-9-
102(5)(A)(ii)(a)(Supp. 1997).  Appellant contends that the
Commission's decision is not supported by substantial evidence, and
that it is erroneous as a matter of law.  We reverse and remand.
     The appellee, Unifirst Corporation, manufactures uniform
shirts.  Appellant was employed by appellee; she worked with a
pocket setting machine that required her to stand and use her right
foot to depress a pedal that operated the machine.  A video tape of
her work revealed that her left leg was extended and flexed as she
stepped forward with her right foot to press the pedal and then
stepped back.  The parties stipulated at the hearing before the ALJ
that appellant would stand and push on this pedal between 2,400 and
2,500 times a day.  
     Appellant developed problems with her left knee in February
and March of 1995.  She testified that she had no prior problems
with her left knee.  Her treating physician gave a diagnosis of
moderate chondromalacia in her left knee, and indicated that the
chondromalacia was causally related to the rocking back and forth
motion appellant used to operate her machine at work.
     In his opinion filed July 8, 1996, the ALJ concluded that
appellant's work activities did not involve a rapid motion.  The
ALJ noted that appellant was required to prove by a preponderance
of the evidence that a gradual onset injury such as hers was caused
by rapid repetitive motion and was the cause of more than 50% of
her disability or need for treatment.  See Ark. Code Ann.  11-9-
102(5).  The ALJ applied a test for rapid repetitive motion adopted
by the Commission in one of its opinions.
          In Throckmorton v. J & J Metals,... the Commission
     held that the requirement of rapid repetitive motion is
     satisfied where the employment duties involve, at least
     in part, a notably high rate of activity involving the
     exact, or almost the exact, same movement again and again
     over extended periods. ...

          The video tape of [appellant's] work activities
     leaves no doubt that her job involved repetitive motion. 
     However, although the motion was steady, it was not "a
     notably high rate of activity" that would be sufficient
     for it to be considered rapid.  [Appellant's] estimates
     of her job activity indicate that she rocked back and
     forth, at most, no more than six times per minute.  This
     is not sufficiently rapid to satisfy the statutory
     requirement.

The ALJ denied and dismissed appellant's request for benefits.  In
an opinion filed February 21, 1997, the full Commission affirmed
and adopted the ALJ's decision.
     Appellant argues that the Commission's interpretation of the
term rapid is erroneous.  In essence, appellant claims that the
Commission applied the wrong legal standard to determine whether
her work activity was rapid.  Appellant cites to our decision in
Baysinger v. Air Systems, Inc., 55 Ark. App. 174, 934 S.W.2d 230
(1996); appellee counters that Baysinger addresses repetitive
activity, not rapid activity.  Appellee's point is well taken. 
Nonetheless, appellant does call into question the Commission's
Throckmorton test for rapid motion.
     Two of our recent decisions are instructive.  See Kildow v.
Baldwin Piano & Organ, 28 Ark. App. 194, 948 S.W.2d 100 (1997),
review granted, No. 97-828 (Ark. Sept. 11, 1997); Lay v. United
Parcel Serv., 58 Ark. App. 35, 944 S.W.2d 867 (1997).  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
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.  
     We affirmed the Commission's denial of benefits.  See Lay,
supra.  We did not think Baysinger was dispositive:  Baysinger
addressed the repetitive element of "rapid repetitive motion," but
the Commission decided that the claimant did not prove that his job
was either rapid or repetitive.  See Lay, 58 Ark. App. at 37, 944 S.W.2d  at 870.  We agreed with the Commission.
     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).

Lay, 58 Ark. App. at 41, 944 S.W.2d  at 870.
     In Kildow, the Commission denied benefits to the claimant,
because she failed to prove that her activities were rapid.  The
Commission applied the same Throckmorton standard that is applied
against appellant in the instant case.  That is, the Commission
required proof of "a notably high rate of activity."  See Kildow,
58 Ark. App. at 199, 948 S.W.2d  at 103.  We noted our holding in
Baysinger which rejected the Commission's Throckmorton standard to
determine if an activity was repetitive.  We observed that "[i]n
its ordinary usage, 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)).  We determined that the Commission's decision was
not supported by substantial evidence, and we reversed and remanded
the matter to the Commission for an award of benefits.  See id. at
203, 948 S.W.2d  at 103-104.  
     We did not adopt the Commission's Throckmorton test for
rapidity in either Lay or Kildow.  We have not required a showing
of "a notably high rate of activity."  See Kildow, 58 Ark. App. at
203, 948 S.W.2d  at 103-104.  Both Lay and Kildow were handed down
after the Commission filed its opinion in the case now before us. 
Nonetheless, the Commission should review appellant's case in light
of these decisions.  "Where legislative interpretation is
concerned,... legal reasoning does attempt to fix the meaning of
the word.  When this is done, subsequent cases must be decided upon
the basis that the prior meaning remains. ...  Its meaning is made
clear as examples are seen, but the reference is fixed."  Edward H.
Levi, An Introduction to Legal Reasoning 33 (1949).  
     Because the Commission should apply our decisions to test for
rapid motion, this case is reversed and remanded for its further
consideration.  Baysinger is sufficiently analogous to lend support
for this disposition.  There, we decided that the Commission's
interpretation of section 11-9-102(5)(A)(ii)(a) was "too
restrictive."  Baysinger, 55 Ark. App. at 176, 934 S.W.2d  at 230. 
We reversed and remanded to the Commission "for a new determination
on the issue of appellant's meeting his burden of proof."  Id. 
Likewise, in this instance it would be appropriate for the
Commission to apply Lay and Kildow to the record before it, and to
make findings of fact and rule accordingly.  See Ark. Code Ann. 
11-9-704(b). 

     Finally, it is appropriate to repeat an observation previously
made by Judge Cooper.  "We think it apparent that the Commission is
making every effort to comply with the legislative mandate, a
difficult task that requires that a fine balance be struck between
the legislature's prohibition against broadening the scope of the
workers' compensation statutes and the legislature's express
statement that the controlling purpose of workers' compensation is
to pay benefits to all legitimately injured workers."  Daniel v.
Firestone Bldg. Products, 57 Ark. App. 123, 124, 942 S.W.2d 277,
278 (1997).  Notwithstanding our disagreement in this instance, we
continue to acknowledge the Commission's efforts.
     Reversed and remanded.
     Robbins, C.J., and Meads and Roaf, JJ., agree.
     Jennings and Stroud, JJ., dissent.

     John E. Jennings, dissenting.  As I understand it, we are
reversing this case and remanding it to the Commission because it
used an improper standard in determining whether appellant's
actions at work were "rapid" within the meaning of Ark. Code Ann.
 11-9-102(5).  I cannot agree that the Commission used an
inappropriate standard.
     One of the definitions of a "compensable injury" is an injury
"caused by rapid repetitive motion."  Ark. Code Ann.  11-9-102(5). 
In Baysinger v. Air Systems, Inc., 55 Ark. App. 174, 934 S.W.2d 230
(1996), the Commission had held that in order to be "repetitive"
under the statute the activity must involve the exact, or almost
exact, same movement again and again over extended periods of time. 
We held in Baysinger that this formulation was too restrictive in
that it precluded multiple tasks from being considered together to
satisfy the requirements of the statute.  Baysinger did not address
the statutory requirement that the motion be "rapid" and has no
real application to the case at bar.  
     In Kildow v. Baldwin Piano & Organ, 58 Ark. App. 194, 948 S.W.2d 100 (1997), we said that "rapid" means "swift or quick." 
While I have no problem with that definition, I cannot agree that
it is materially different from the test used by the Commission,
i.e., that "rapid" means "a notably high rate of activity."  
     The majority also relies on Lay v. United Parcel Serv., 58
Ark. App. 35, 944 S.W.2d 867 (1997), but that case offers no
support either.  Indeed, we affirmed the Commission's decision in
Lay that the claimant's activity was not sufficiently "rapid,"
despite the fact that the Commission evidently used its "notably
high rate of activity" standard.  See Lay, 58 Ark. App. at 40-41. 
     In short, I can see no meaningful difference between the
language used by the Legislature, "rapid"; the language we used in
Kildow, "swift or quick"; and the language used by the Commission,
"a notably high rate of activity."  No useful purpose can be served
by remanding this case to the Commission; I would decide the issue
on the merits.  
     I am authorized to state that Judge Stroud joins in this
dissent.