High Capacity Prods. v. Moore

HIGH CAPACITY PRODUCTS v. Gwendel L.MOORE

CA 97-880                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
               Opinion delivered February 25, 1998


1.   Workers' compensation -- rapid repetitive motion injury --
     proof required. -- To prove a rapid repetitive motion injury,
     appellee had the burden of proving by a preponderance of the
     evidence that the injury: (1) arose out of and in the course
     of her employment; (2) caused internal or external physical
     harm to the body requiring medical services; (3) was caused by
     rapid repetitive motion; and (4) was the major cause of the
     disability or need for treatment; the injury must also be
     established by medical evidence, supported by objective
     findings; objective findings are those findings that cannot
     come under the voluntary control of the patient. 

2.   Workers' compensation -- standard of review -- substantial
     evidence defined. -- When reviewing a decision of the Workers'
     Compensation Commission, the appellate court views the
     evidence and all reasonable inferences deducible therefrom in
     the light most favorable to the Commission's findings and
     affirms if the decision is supported by substantial evidence;
     substantial evidence is that evidence a reasonable mind might
     accept as adequate to support a conclusion; a decision of the
     Commission is reversed only if fair-minded persons using the
     same facts could not reach the conclusion reached by the
     Commission; the appellate court defers to the Commission in
     determining the weight of the evidence and the credibility of
     the witnesses; the appellate court reviews the decision of the
     Commission and not that of the administrative law judge.

3.   Workers' compensation -- objective measurable findings existed
     -- spasm defined. -- The appellate court and the Workers'
     Compensation Commission have accepted muscle spasms as
     objective measurable findings pursuant to Ark. Code Ann.  11-
     9-102(16); "spasm" is defined as an involuntary muscular
     contraction or increased muscular tension and shortness that
     cannot be released voluntarily and that prevent lengthening of
     the muscles involved; for purposes of appellee's rapid
     repetitive injury, the evidence showed objective measurable
     findings that included moderate spasms with "large palpable
     triggers" that were documented on at least two doctor visits. 
      

4.   Workers' compensation -- rapid repetitive motion -- appellee's
     duties constituted. -- A claimant need not prove exact or
     almost exactly the same movement again and again to show rapid
     repetitive motion; multiple job tasks, when considered
     together, can satisfy the statutory requirements; where there
     was testimony that appellee's assembly duties required her to
     ensure one nut to be in place on an average of every fifteen
     seconds during the majority of her shift, there was
     substantial evidence to support the Commission's award of
     benefits for a rapid repetitive injury.

5.   Workers' compensation -- major cause defined -- acceptable
     evidence of. -- Arkansas Code Annotated  11-9-102(14)(A)
     (Repl. 1996) provides that a major cause must be more than 50%
     of the cause of the disability or need for treatment; it is
     established by a preponderance of the evidence presented to
     the Workers' Compensation Commission; appellant's assertion
     that the physician, as an expert, must have specifically
     stated the major cause of the injury was without merit; the
     legislature did not so limit the acceptable evidence that
     could be considered.

6.   Workers' compensation -- appellee's evidence as to injury
     consistent -- finding that work activity was major cause of
     appellee's injury supported by substantial evidence. -- Where
     the Workers' Compensation Commission determined that appellee
     was a credible witness and believed that she had suffered no
     other injury to her left shoulder or neck other than due to
     her activities in her work for appellant, where appellee
     consistently told medical providers of past injury to the same
     location, and where no evidence was brought out to contradict
     this testimony, the preponderance of the evidence indicated
     that the sole cause, therefore the major cause, of appellee's
     disability or need for treatment was the injury that resulted
     from her work activity; no error was found; the Commission's
     finding that the major cause of appellee's disability was the
     injury that resulted from her work activity was supported by
     substantial evidence. 

7.   Workers' compensation -- temporary total disability benefits -
     - when entitled to. -- When an injured employee is totally
     incapacitated from earning wages and remains in her healing
     period, she is entitled to temporary total disability
     benefits; the healing period ends when the employee is as far
     restored as the permanent character of the injury will permit;
     the determination of when the healing period has ended is a
     factual one and will be upheld on appeal if there is
     substantial evidence to support it.  

8.   Workers' compensation -- temporary total disability found by
     Commission -- decision affirmed. -- Appellee remained off work
     during the course of her medical treatments, was never
     released to return to work, and after undergoing months of
     physical therapy, medication, and injection treatments, her
     healing period ended on September 6, 1995, when her physician
     had no additional treatment to offer her; appellee was awarded
     temporary total disability from April 7, 1995, until September
     6, 1995; the Commission's decision was supported by her
     doctor's testimony that it could take weeks or months to
     recover from the cervical strain injury; the appellate court
     could not say that appellee was not temporarily and totally
     disabled from the last day she worked in April 1995 until
     September 6, 1995, when no further treatment could help her,
     and affirmed the Commission's decision.


     Appeal from the Arkansas Workers' Compensation Commission;
affirmed.
     Shackleford, Phillips, Wineland & Ratcliff, P.A., for
appellant.
     Denver L. Thornton, for appellee.

     John B. Robbins, Chief Judge. 
     Appellant High Capacity Products appeals the Workersþ
Compensation Commissionþs award of benefits to appellee Gwendel
Moore for a rapid repetitive injury she received while working
for appellantþs electrical meter-box manufacturing company. 
Appellant asserts there is no substantial evidence to support the
Commissionþs findings.  We disagree and affirm.
     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 a nut every fifteen seconds,
according to the testimony of her supervisor.  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.
     She testified she had experienced two prior injuries due to
her employment with appellant and that it had accepted and paid for
both instances.  The injuries were strains in the same location. 
Neither past injury had left her debilitated to the point that she
was unable to return to work at full capacity.  With the more
recent of those injuries, she saw the company doctor and her own
doctor in August 1994 for left shoulder and neck pain.  She
received treatment for a cervical strain and was released to return
to work.  She admittedly experienced pain in her shoulder and neck
between August 1994 and March 7, 1995.  It was only the last
incident, the one at issue before us, that appellant declined to
accept.
     On March 7, 1995, early on in her shift she reported neck
and shoulder pain to her immediate supervisor.  Her testimony
reflected that she had experienced no other trauma or accident
to her shoulder and neck other than the prior injury sustained at
work for this employer.  She testified that the routine of þjust
constantly working and lifting and pulling on the [air gun] machine
and holding the partsþ caused her shoulder and neck pain to recur
to such a degree that she finally reported it on that day, March 7,
1995.
     The immediate supervisor corroborated this testimony,
recalling not a specific incident of injury, but only that Moore
reported hurting in her left shoulder and neck.  That supervisor
told her to report this to the woman in higher command.  That
person told Moore to go to her family physician, not the company
doctor.
     Moore did see her physician, Dr. Pinkerton, on March 10th, and
he diagnosed a cervical strain.  He began conservative treatment
of her injury, including physical therapy, and ordered an MRI for
evaluation of her cervical problem.  The MRI revealed spondylosis,
a degenerative condition related to use and age, but no significant
cervical findings for purposes of her complaints.  He took her off
work on April 7, 1995.
     On April 20, 1995, she was referred to a neurosurgeon, whose
examination revealed a two-thirds capacity in the range of motion
of her neck.  His opinion was that she suffered a cervical strain,
and he too recommended physical therapy.  By June 1995, she had
seen an orthopedic surgeon.  His evaluation was that she had a
cervical muscular/ligamentous injury that could take weeks or
months to resolve.  Another physician evaluated her for potential
trigger point injections for relief.  When seen by Dr. Jacob
Abraham at The Pain Clinic, he diagnosed chronic myofascial
cervical pain.  She continued to see Dr. Abraham off and on until
September 6, 1995, when he no longer had any services to offer her. 
     To prove a rapid repetitive motion injury, Moore had the
burden of proving by a preponderance of the evidence that the
injury:
     (1)  arose out of and in the course of her employment;
     (2)  caused internal or external physical harm to the
          body requiring medical services;
     (3)  was caused by rapid repetitive motion; 
     (4)  was the major cause of the disability or need
          for treatment.

See Ark. Code Ann.  11-9-102(5) (Supp. 1997); see also Lay v.
United Parcel Serv., 58 Ark. App. 35, 944 S.W.2d 867 (1997).  The
injury must also be established by medical evidence, supported by
objective findings.  Ark. Code Ann.  11-9-102(5)(D) (Supp. 1997). 
Objective findings are those findings that cannot come under the
voluntary control of the patient.  Ark. Code Ann.  11-9-102(16)
(Supp. 1997).
     When reviewing a decision of the Workersþ Compensation
Commission, we view the evidence and all reasonable inferences
deducible therefrom in the light most favorable to the Commissionþs
findings and affirm if the decision is supported by substantial
evidence.  White v. Frolic Footwear, 59 Ark. App. 12, 952 S.W.2d 190 (1997).  Substantial evidence is that evidence a reasonable
mind might accept as adequate to support a conclusion.  Mikel v.
Engineering Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876
(1997).  A decision of the Commission is reversed only if we are
convinced fair-minded persons using the same facts could not reach
the conclusion reached by the Commission.  Id.  In our review, we
recognize that this court defers to the Commission in determining
the weight of the evidence and the credibility of the witnesses. 
Id.  The issue is not whether we may have reached a different
conclusion or whether the evidence might have supported a contrary
finding.  Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996).  Furthermore, on appeal to this court, we review the
decision of the Commission and not that of the administrative law
judge.  Thornton v. Bruce, 33 Ark. App. 31, 800 S.W.2d 723 (1990). 
In this case the ALJ denied benefits and the Commission reversed
that decision.  We have applied this standard of review and find
there to be substantial evidence to support the Commissionþs
findings.
     Given the fact that Moore testified that she suffered no other
injury or trauma to her left shoulder and neck, other than the
earlier compensated injuries to the same location while in the same
job, the Commission had substantial evidence to find she sustained
a compensable injury arising out of and in the course of her
employment for appellant.  Objective measurable findings included
the documented moderate spasms with "large palpable triggers" on
at least two doctor visits in August 1995.  This court and the
Commission have accepted muscle spasms as objective findings. 
University of Arkansas for Med. Sciences v. Hart, 60 Ark. App.
13,     S.W.2d     (1997); see also Daniel v. Firestone Bldg.
Prod., 57 Ark. App. 123, 942 S.W.2d 277 (1997).  "Spasm" is defined
in Stedman's Medical Dictionary 1304 (23d ed. 1976) as:  "(1)  An
involuntary muscular contraction....  (2)  Increased muscular
tension and shortness which cannot be released voluntarily and
which prevent lengthening of the muscles involved; [spasm] is due
to pain stimuli to the lower motor neuron."  This constitutes an
objective finding pursuant to  11-9-102(16) for purposes of this
injury.  See University of Arkansas for Med. Sciences, supra.
     Rapid Repetitive Motion
     This court has had the opportunity in recent cases, not
available to the Commission at the time it rendered its opinion,
to develop somewhat that area of the workersþ compensation law
concerning what constitutes rapid repetitive motion.  We think the
Commission correctly applied the statutory requirement and that
there is substantial evidence to support the Commission's finding
that Moore's injury was caused by rapid repetitive motion.  None
of the cases mirror the situation and circumstances of appellee
herein.  Nonetheless, we believe that this is the most compelling
case demonstrating rapid repetitive motion presented to this court
to date.  We have stated that a claimant need not prove exact or
almost exactly the same movement again and again to show "rapid
repetitive motion."  Baysinger v. Air Sys., Inc., 55 Ark. App.
174, 934 S.W.2d 230 (1996).  Multiple job tasks, when considered
together, could satisfy the statutory requirements.  Id.  There was
testimony presented that her assembly duties required her to ensure
one nut to be in place on an average of every fifteen seconds
during the majority of her shift.  We find this to be substantial
evidence to support the Commission's award of benefits.
     Major Cause
     þMajor causeþ means more than 50% of the cause of the
disability or need for treatment and it is established by a
preponderance of the evidence presented to the Commission.  Ark.
Code Ann.  11-9-102(14)(A) (Repl. 1996).  Appellant asserts that
an expert, meaning a physician, must state what the major cause
was.  However, the legislature did not so limit the acceptable
evidence that could be considered.
     The Commission determined that Moore was a credible witness
and believed that she had suffered no other injury to her left
shoulder or neck other than due to her activities in her work for
appellant.  She consistently told medical providers of past injury
to the same location.  Appellant makes much of the fact that her
chiropractor, treating her for a subsequent automobile accident
in November 1995, was unaware of her prior left shoulder and neck
injury.  This is irrelevant to her claim for benefits, though,
since her benefits expired in September 1995.
     The Commission observed that there was no evidence brought out
to contradict the testimony that she suffered no other injury. 
Contrary to appellant, we do not believe that this observation
shows an improper shifting of the burden of proof, though perhaps
inartfully stated by the Commission in its opinion.  The
preponderance of the evidence indicated that the sole cause,
therefore certainly the major cause of the disability or need for
treatment, was the injury that resulted from her work activity. 
We cannot say the Commission erred in this respect for there is
substantial evidence to support its finding.
     Temporary Total Disability
     Moore was awarded temporary total disability benefits from
April 7, 1995, until September 6, 1995, when her healing period
ended.  When an injured employee is totally incapacitated from
earning wages and remains in her healing period, she is entitled to
temporary total disabilitybenefits.  Arkansas State Highway &
Transp. Dep't. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1991). 
The healing period ends when the employee is as far restored as
the permanent character of the injury will permit.  Carroll Gen.
Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996).  The
determination of when the healing period has ended is a factual one
and will be upheld on appeal if there is substantial evidence to
support it.  Id.  After undergoing months of physical therapy,
medication, and injection treatments, no physician had any
additional treatment to offer her after September 6, 1995.  The
Commission had evidence that the doctor who stated it could take
weeks or months to recover from this cervical strain injury,
orthopedist Dr. Giller, wrote this in a letter to her treating
physician, Dr. Pinkerton, who had referred her to him.  
     She remained off work while she sought these medical
treatments, so there was no need for any of the subsequent treating
physicians to opine that she should be off work.  Though there was
one small þRTW: 5-18-95þ notation on a visit to Dr. Pinkerton, he
subsequently continued to see Moore and treat her.  Moore testified
that she had never been released to return to work.  We cannot say
that Moore was not temporarily and totally disabled from the last
day she worked in April 1995 until September 6, 1995, when no
further treatment could help her.
     Affirmed.
     Crabtree, J., agrees.
     Rogers, J., concurs.

     Judith Rogers, Judge, concurring.  I concur in the affirmance of
this case because I believe it is the province of the Commission,
under the law, to decide if the appellee's injury was a gradual
onset injury and the major cause of her current disability and need
for treatment.  However, I am disturbed by a few aspects of the
Commission's opinion.
     First, I am bothered by the dearth of findings of the ALJ and
the Commission.  But in reading the Commission's opinion, it
appears to me that it is implicit in the decision that appellee's
need for treatment was compensable.  I am also concerned by the
fact that the Commission did not state with more certainty
appellee's recurrence of shoulder pain that had twice before been
treated as compensable by the company and was caused by the motions
of pulling and lifting the air gun. 
     In addition, I find the Commission's reliance on the lack of
evidence that appellee had no other trauma or accident troubling. 
It appears that the Commission shifted the burden of proving a
compensable injury from the claimant to the employer.  However, the
Commission found appellee's testimony credible and concluded that
she sustained a gradual onset injury which was caused or aggravated
by the physical tasks required in her job.  I certainly cannot say
that there is no substantial evidence to support the Commission's
decision.