Pulaski County Special Sch. Dist. v. Stewart
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Cite as 2010 Ark. App. 487
ARKANSAS COURT OF APPEALS
DIVISION II
No. CA10-49
Opinion Delivered
PULASKI COUNTY SPECIAL SCHOOL
DISTRICT and RISK MANAGEMENT
RESOURCES
APPELLANTS
V.
June 16, 2010
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION
[No. F801847]
ELMON G. STEWART
APPELLEE
REVERSED and REMANDED
LARRY D. VAUGHT, Chief Judge
Pulaski County Special School District appeals the decision of the Arkansas Workers’
Compensation Commission finding that Elmon Stewart established that she sustained a gradualonset injury to her right shoulder and awarding her benefits. The District contends that there
is a lack of substantial evidence supporting the decision. We reverse and remand.
In 2006, Stewart began working for the District as a substitute school-bus driver. During
this same time period, Stewart also worked part time at Comet Cleaners.1 According to Stewart,
in November or December 2007, she began experiencing pain in her right upper extremity. It
Testimony from Stewart revealed that she worked at the cleaners pressing pants,
Monday through Friday, approximately four hours each day. She said that she would remove
pants from a buggy; tap the top of an automated machine, which caused a bar to come down
and press the pants; and then she would hang them. She estimated that each day she pressed
fifty pairs of pants.
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was her belief that her pain was caused by opening and closing the door of the bus that she
drove. She, along with two other witnesses, testified that the door handle was difficult to
operate. She added that she had ten stops on her morning route and ten stops on her afternoon
route and that, from start to finish, the duration of each route was about two hours. She also
stated that she had trouble with the bus pulling to one side when she applied the brakes.
After the 2007 Christmas break, Stewart continued to experience pain in her right
extremity. On January 11, 2008, she reported the problem to her supervisor Beulah Coston, who
sent Stewart for medical treatment. She was diagnosed with shoulder, cervical, trapezius, and
forearm strains; prescribed physical therapy, medication, and home exercises; and placed on
light-duty work, which was provided by the District. Stewart sought medical treatment from her
family doctor on January 18, 2008, and an MRI was recommended and performed on January
22, 2008. The MRI showed that Stewart had adhesive capsulitis and a partial thickness
supraspinatus tear of the right shoulder. She had surgery on her right shoulder on March 12,
2008, and was issued a seven-percent impairment rating.
At the onset, the District accepted the right-shoulder injury as compensable and paid
benefits. However, on February 27, 2008, the claim was denied, and the District discontinued
Stewart’s light-duty work. Stewart, under the assumption that she was on sick leave without pay,
did not return to work. She later learned that she had been terminated by the District in August
or September 2008.
Stewart filed a claim for workers’ compensation benefits for her right shoulder,
contending that it was either a specific-incident or gradual-onset injury. She claimed entitlement
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to temporary-total-disability benefits from February 27, 2008 to September 23, 2009, medical
benefits, a seven-percent anatomical impairment rating, and an attorney’s fee. The District
contended that Stewart did not suffer a compensable injury, and in the alternative, in the event
of an award, that it was not responsible for benefits and expenses prior to the date it received
notice of the claim on January 11, 2008.
The administrative law judge found in favor of Stewart and awarded benefits. The ALJ
found that “[b]ased on the testimony of [Stewart] and her co-workers, the bus door was difficult
to operate” and “[Stewart’s] testimony and maintenance logs verify problems with the steering
(the bus pulling to the side while braking).” Relying upon these findings, the ALJ concluded that
“[t]hese rapid and repetitive motions were the major cause of [Stewart’s] shoulder injury and
resulting need for medical treatment and disability.” The ALJ made no findings regarding
Stewart’s alternative contention that her shoulder injury was the result of a specific incident. The
Commission affirmed and adopted the opinion of the ALJ. On appeal, the District argues that
(1) the Commission’s conclusion that Stewart suffered a compensable gradual-onset injury
caused by rapid and repetitive motion is not supported by substantial evidence, and (2) the
Commission arbitrarily ignored credible evidence establishing that Stewart’s injuries were caused
by the rapid and repetitive job duties at the cleaners.
In reviewing decisions of the Commission, we view the evidence and all reasonable
inferences deducible therefrom in the light most favorable to the Commission’s findings, and
we affirm if the decision is supported by substantial evidence. Dorris v. Townsends of Ark., Inc., 93
Ark. App. 208, 210, 218 S.W.3d 351, 352 (2005). Substantial evidence is that which a reasonable
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person might accept as adequate to support a conclusion. Id., 218 S.W.3d at 352. We will not
reverse the Commission’s decision unless we are convinced that fair-minded persons with the
same facts before them could not have reached the conclusions of the Commission. Id., 218
S.W.3d at 352. The substantial evidence standard of review requires that we affirm if the
Commission’s opinion displays a substantial basis for the denial of relief. Id. at 210, 218 S.W.3d
at 352.
To receive benefits for a gradual-onset injury, Stewart had to prove (1) that her shoulder
injury arose out of and in the course of her employment with the District; (2) that the injury
caused internal or external physical harm to her body which required medical services or resulted
in death or disability; (3) that the injury was caused by rapid and repetitive motion; (4) that the
injury was the major cause of the disability or need for treatment; and (5) that the injury was
established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9102(4)(A)(ii)(a), (D), (E)(ii) (Supp. 2009); Moody v. Addison Shoe Co., 104 Ark. App. 27, 29–30, 289
S.W.3d 115, 116–17 (2008).
The General Assembly has not established guidelines as to what constitutes rapid
repetitive motion. Malone v. Texarkana Pub. Schools, 333 Ark. 343, 349, 969 S.W.2d 644, 647
(1998). As a result, that determination has been made by the fact finder in each case. Malone, 333
Ark. at 349, 969 S.W.2d at 647. The Malone court set forth a two-pronged test for establishing
rapid repetitive motion (1) the tasks must be repetitive, and (2) the repetitive motion must be
rapid. Id. at 350, 969 S.W.2d at 647. As a threshold issue, the tasks must be repetitive, or the
rapidity element is not reached. Id. at 350, 969 S.W.2d at 647. Arguably, even repetitive tasks and
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rapid work, standing alone, do not satisfy the definition. Id. at 350, 969 S.W.2d at 647–48. The
repetitive tasks must be completed rapidly. Id., 969 S.W.2d at 648.
The Commission concluded that Stewart sustained a gradual-onset injury to her right
shoulder. Its conclusion was based upon its finding that Stewart’s operation of the bus’s door
handle and steering wheel constituted rapid and repetitive motion. The District argues that the
Commission’s conclusion must be reversed because there is a lack of substantial evidence
supporting it. Specifically, it contends that there was a total lack of rapid-repetitive-motion
evidence presented concerning the steering of the bus and that other proof only established that
Stewart opened and closed the bus door ten times in the morning and ten times in the
afternoon—the equivalent to opening and closing the bus door five times per hour. This, argues
the District, does not rise to the level of rapid or repetitive motion. We agree.
In Malone, the claimant was a school custodian, cleaning bathrooms and classrooms,
working five nights per week, eight hours per day, with several breaks. Her daily routine included
fifteen or sixteen steps, each involving different motions with her arms and hands—including
but not limited to mopping, dusting, scrubbing, restocking paper products, emptying trash cans,
and vacuuming. Malone, 333 Ark. at 347, 969 S.W.2d at 646. Applying the two-pronged test to
the evidence presented there about the nature, speed, and sequence in which the claimant
performed her duties, the Malone court held that she did not perform rapid repetitive motions,
even though her job required numerous movements repeated many times in a day, because the
movements were different and separated in time. Id., 969 S.W.2d at 648.
In Lay v. United Parcel Serv., 58 Ark. App. 35, 37, 944 S.W.2d 867, 868 (1997), the claimant
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contended that he sustained right tennis elbow as a result of repeated lifting of packages and a
one-foot square, two-inch thick, four-to-five pound electronic clip board. His duties, in addition
to driving, included picking up packages weighing up to 150 pounds, and typing a record of his
transactions on the clip board. Lay, 58 Ark. App. at 37, 944 S.W.2d at 868. He claimed that he
was required to remove the board from its holder, which was mounted at arm’s length on the
dashboard of his truck, and replace it, each time he made one of his estimated seventy-five to
eighty daily pick-up or delivery stops—once every eight minutes. Id. at 37, 41, 944 S.W.2d at 868,
870. In affirming the Commission, we held that these motions, separated by periods of several
minutes or more, did not constitute rapid or repetitive motion. Id. at 41, 944 S.W.2d at 870.
In contrast, in Hapney v. Rheem Manufacturing Co., 342 Ark. 11, 18–19, 26 S.W.3d 777,
781–82 (2000), the supreme court reversed this court, finding that a claimant’s assembly-line
duties that required her to bend her neck once every twenty seconds was sufficient to satisfy the
statutory requirement of rapid and repetitive motion. Similarly, another worker’s assembly-line
operation of an airgun that required her “to ensure one nut to be in place on an average of every
fifteen seconds during the majority of her shift” satisfied the rapid-repetitive-motion element
required for her gradual-onset cervical-injury claim. High Capacity Prods. v. Moore, 61 Ark. App.
1, 7, 962 S.W.2d 831, 835 (1998).
In the instant case, there were only two descriptions presented about the motions of
Stewart’s bus-driver job. There was testimony that she opened and closed a difficult-to-operate
bus door ten times every two hours (which equates to once every twelve minutes) and that there
were problems with the steering of the bus. We hold that Stewart’s actions fall within the
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noncompensable Malone and Lay genre of cases; therefore, there was not substantial evidence
of rapid or repetitive motion.
While the evidence of Stewart opening and closing the bus door touches on the repetitive
nature of her job, there was no evidence about the time interval between each event. Likewise,
this evidence fails to establish the rapidity requirement. There no testimony about how quickly
or slowly Stewart actually operated the door handle during each event. As for the steering
problems on the bus, there was no testimony from any witness about how often the bus pulled
to the side, how it affected her right shoulder, what motion her shoulder engaged in when the
bus pulled to the side, or how rapid or repetitive that motion was. Therefore, we hold that there
is a lack of substantial evidence supporting the Commission’s opinion that Stewart’s job duties
were rapid and repetitive.2 As such, we reverse the Commission’s opinion awarding benefits on
this basis.
Disposing of the rapid-repetitive-motion issue, we address Stewart’s argument that the
Commission’s decision should be affirmed because “it reached the correct result.” She contends
that if her work duties do not support a gradual-onset injury, the record nonetheless supports
a compensable injury caused by a specific incident or because it is an unexplained injury.
However, we cannot affirm based upon the “right result, wrong reason” theory because in
workers’ compensation cases it is our duty to review the decision of the Commission to
determine whether it is supported by the facts found by the Commission. Cook v. Aluminum Co.
Based on this disposition, it is not necessary to address the District’s argument that the
Commission arbitrarily ignored credible evidence that Stewart’s injuries were caused by her job
duties at the cleaners.
2
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of America, 35 Ark. App. 16, 20, 811 S.W.2d 329, 332 (1991). In appeals from the Commission,
we cannot indulge the presumption used in appeals from trial courts that even if the court states
the wrong reason, we will affirm if the judgment is correct. Cook, 35 Ark. App. at 20–21, 811
S.W.2d at 332. Meaningful appellate review requires adequate and specific findings. Pharmerica
v. Seratt, 103 Ark. App. 9, 15, 285 S.W.3d 699, 704 (2008).
Here, we cannot affirm for the “right result, wrong reason” and proceed under Stewart’s
alternative theories because the Commission failed to address or make any findings of fact on
these alternative arguments. While we do not defer to the Commission on questions of law, we
also do not act as the fact finder. Heptinstall v. Asplundh Tree Expert Co., 84 Ark. App. 215, 223,
137 S.W.3d 421, 426 (2003). Therefore, we remand for additional findings with regard to
Stewart’s alternative theories of compensability. Pharmerica, 103 Ark. App. at 15, 285 S.W.3d at
704; Heptinstall, 84 Ark. App. at 223, 137 S.W.3d at 426.
Reversed and remanded.
HART and KINARD, JJ., agree.
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