Malone v. Texarkana Public Schools

• Decision Date: 27 May 1998
• Docket Number: No. 97-1057,97-1057
• Citation: 969 S.W.2d 644,333 Ark. 343
• Parties: Anna MALONE, Appellant, v. TEXARKANA PUBLIC SCHOOLS, Appellees.
• Court: Arkansas Supreme Court

Page 644

969 S.W.2d 644

333 Ark. 343

Anna MALONE, Appellant, v. TEXARKANA PUBLIC SCHOOLS, Appellees.

No. 97-1057.

Supreme Court of Arkansas.

May 27, 1998.

Greg Giles, Texarkana, for Appellant.

Mike Roberts, James D. Robertson, Little Rock, for Appellee.

Michael J. Dennis, Pine Bluff, for Arkansas Self-Insurer's Association.

ARNOLD, Chief Justice.

This appeal involves the interpretation of "rapid repetitive motion," under Ark.Code Ann. § 11-9-102(5)(A)(ii)(a) (Supp.1997), and a decision of the Arkansas Workers' Compensation Commission finding that the appellant failed to establish a compensable injury. Our jurisdiction is authorized pursuant to Ark. Sup.Ct. Rule 2-4 (1998). The specific points raised on appeal involve issues upon which there is a perceived inconsistency in the decisions of the Court of Appeals, significant issues needing clarification, and substantial questions of law concerning the interpretation of section 11-9-102(5)(A)(ii)(a). Finding no reversible error, we affirm the Commission's decision.

Appellant, Anna Malone, worked as a custodian for the appellee, Texarkana Public Schools, for a period of six years. In December of 1994, Malone reported to her supervisor, Walter Gambill, symptoms of numbness and tingling in her hands. Mr. Gambill advised her to consult a doctor. Since first visiting a doctor on March 27, 1995, Malone has not returned to work. EMG and nerve conduction studies revealed that Malone suffers from bilateral carpal tunnel syndrome. Her treating physician, Dr. Robert Burton, concluded in a medical questionnaire dated September 21, 1995, that Malone's carpal tunnel syndrome was due to the nature of her work.

Malone filed a workers' compensation claim seeking temporary total disability benefits from March 27, 1995, and contended that her injury was compensable because her carpal tunnel syndrome was caused by the "rapid repetitive motion" of her job duties. The administrative law judge reviewing her claim concluded that Malone's condition was not a compensable injury caused by "rapid repetitive motion," as defined by Ark.Code Ann. § 11-9-102(5)(A)(ii)(a) (Supp.1997), and that she had failed to meet her burden of proving by a preponderance of the evidence that her bilateral carpal tunnel was the result of her work-related activities with the Texarkana Public Schools. At the time of the administrative proceeding, Malone was fifty years old and reported that she had never had any prior problems with her hands or elbows.

The Workers' Compensation Commission affirmed and adopted the administrative law judge's decision, finding that Malone had failed to prove by a preponderance of the evidence that her carpal tunnel syndrome was caused by "rapid repetitive motion." Malone then appealed the Commission's decision to the Arkansas Court of Appeals. In an unpublished opinion dated August 27, 1997, the Court of Appeals reversed and remanded the case, reasoning that the Commission had based its findings on a prior Commission decision, Baysinger v. Air Systems, Inc., Workers' Compensation Commission, decision filed October 19, 1995, (Claim No. E316706), which was subsequently reversed by the Court of Appeals. See Baysinger v. Air Systems, Inc., 55 Ark.App. 174, 934 S.W.2d 230 (1996). Additionally, the appellate court determined that Malone's duties satisfied the requirements of rapid repetitive work and directed the Commission to reconsider Malone's claim in light of its holding in Baysinger.

Subsequently, we granted review of the Court of Appeals' decision. In the instant appeal Malone argues that the Court of Appeals correctly interpreted "rapid repetitive motion" and that the Commission erred by applying the wrong definition of that term in concluding that she failed to satisfy her burden of proof. Additionally, Malone contends that the Commission's decision was not supported by substantial evidence.

I. "Rapid Repetitive Motion"

When we grant a petition to review a case decided by the Court of Appeals, we review it as if it was filed originally in this court. See Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997) (citing Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996)). Appellant and the appellee argue in their briefs on appeal that the construction of section 11-9-102(5)(A)(ii)(a) dictates our holding in this case. For example, in response to arguments raised in the appellee's brief, Malone contended that the plain language of the statute specifically defines carpal tunnel syndrome as a compensable injury, thus ending our "rapid repetitive motion" analysis. We agree with the appellant. ¹ However, as discussed in oral argument, the parties agree that this argument was not presented below, and arguments not presented to the trial court are not reviewable on appeal. See Schueck v. Burris, 330 Ark. 780, 787, 957 S.W.2d 702 (1997) (citing Jamison v. Estate of Goodlett, 56 Ark.App. 71, 938 S.W.2d 865 (1997)).

We now address the Commission's analysis of "rapid repetitive motion" in the instant case. In deciding the appellant's claim, the Commission examined Malone's job duties. Malone testified that she worked as a custodian for the appellee five nights per week, from approximately 3:30 p.m. until 12:00 a.m., and that she had a fifteen-minute break after the first two hours, a thirty-minute dinner break, and a fifteen-minute break after the next two hours. Malone's daily routine included fifteen or sixteen steps, each involving different motions with her arms and hands. First, Malone dust mopped three halls, for approximately seven or eight minutes. Next, she cleaned two large bathrooms in approximately thirty minutes, including cleaning the commodes, walls, sinks, fixtures, mirrors, baseboards, restocking paper products, and mopping the floors. Next, she cleaned twenty-three classrooms, including emptying trash cans, replacing trash-can liners, vacuuming and cleaning chalk trays, emptying pencil sharpeners, cleaning desk tops and table tops, dusting, sweeping, and dust mopping. She also spent about five to ten minutes vacuuming each night, including three offices and one partially carpeted classroom.

In denying Malone's claim for her failure to establish a compensable injury, the administrative law judge and the Commission interpreted the following statute defining a "compensable injury" as:

An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:

(a) Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as a compensable injury falling within this definition.

Ark.Code Ann. § 11-9-102(5)(A)(ii) (Supp.1997).

Specifically, in construing this statute, the administrative law judge relied on the Commission's decision in Baysinger and determined that although Malone's job involved the use of her hands in all of her duties, it did not require the "exact or almost exact movement again and again for prolonged periods of time sufficient to constitute rapid, repetitive motion." However, in Baysinger v. Air Systems, Inc., 55 Ark.App. 174, 934 S.W.2d 230 (1996), the Court of Appeals rejected this narrow definition of "rapid repetitive motion," holding that it precluded multiple tasks from being considered together to satisfy the statute's requirements. Similarly, in Kildow v. Baldwin Piano & Organ, 58 Ark.App. 194, 948 S.W.2d 100 (1997), the court of appeals rejected the "exact, or almost exactly, the same movement again and again" standard for constituting "rapid repetitive motion."

Accordingly, we hold that the Commission erred by applying a definition of "rapid repetitive motion" that has been rejected and held "too restrictive." Nevertheless, our inquiry does not end here; we must consider whether the Commission's ultimate decision was supported by substantial evidence. Although the Commission applied an incorrect standard of proof, its decision should be affirmed if it reached the correct result. See R.J. "Bob" Jones Excavating Contractor, Inc. v. Firemen's Ins. Co., 324 Ark. 282, 920 S.W.2d 483 (1996).

II. Substantial Evidence

We will affirm a...