{ "id": 6138816, "name": "Brenda Ann RUDICK v. UNIFIRST CORPORATION", "name_abbreviation": "Rudick v. Unifirst Corp.", "decision_date": "1998-01-28", "docket_number": "CA 97-611", "first_page": "173", "last_page": "179", "citations": [ { "type": "official", "cite": "60 Ark. App. 173" }, { "type": "parallel", "cite": "962 S.W.2d 819" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "921 S.W.2d 954", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 369369, 6141879 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0033-01", "/ark-app/53/0288-01" ] }, { "cite": "53 Ark. App. 288", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141879 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/53/0288-01" ] }, { "cite": "57 Ark. App. 123", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137883 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "124" }, { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/ark-app/57/0123-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-704", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "58 Ark. App. 35", "category": "reporters:state", "reporter": "Ark. 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Code Ann. \u00a7 11", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 11-9-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(5)(A)(ii)", "parenthetical": "a" } ], "opinion_index": 0 }, { "cite": "58 Ark. App. 35", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136588 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "40-41" } ], "opinion_index": 1, "case_paths": [ "/ark-app/58/0035-01" ] }, { "cite": "948 S.W.2d 100", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6139161 ], "weight": 2, "year": 1997, "opinion_index": 1, "case_paths": [ "/ark-app/58/0194-01" ] }, { "cite": "55 Ark. App. 174", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140476 ], "weight": 2, "year": 1996, "opinion_index": 1, "case_paths": [ "/ark-app/55/0174-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "pin_cites": [ { "page": "(5)" }, { "page": "(5)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 587, "char_count": 10952, "ocr_confidence": 0.735, "pagerank": { "raw": 6.3481576981566e-08, "percentile": 0.38949490877653486 }, "sha256": "525305345214466e2188b9cb78b216c6fd9b754bf097eb0a140e9b526bca345c", "simhash": "1:a74baf1341cc5197", "word_count": 1791 }, "last_updated": "2023-07-14T20:03:53.777728+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Robbins, C.J., and Meads and Roaf, JJ., agree.", "Jennings and Stroud, JJ., dissent." ], "parties": [ "Brenda Ann RUDICK v. UNIFIRST CORPORATION" ], "opinions": [ { "text": "D. Franklin Arey, III, Judge.\nThis appeal arises from the Workers\u2019 Compensation Commission\u2019s denial of benefits to the appellant, Brenda Ann Rudick. The Commission affirmed and adopted the administrative law judge\u2019s 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 \u201crapid repetitive motion\u201d under Ark. Code Ann. \u00a7 11-9-102(5)(A)(ii) (a) (Supp. 1997). Appellant contends that the Commission\u2019s decision is not supported by substantial evidence, and that it is erroneous as a matter of law. We reverse and remand.\nThe 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.\nAppellant 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.\nIn his opinion filed July 8, 1996, the ALJ concluded that appellant\u2019s 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. \u00a7 11 \u2014 9\u2014 102(5). The ALJ applied a test for rapid repetitive motion adopted by the Commission in one of its opinions.\nIn 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. . . .\nThe video tape of [appellant\u2019s] work activities leaves no doubt that her job involved repetitive motion. However, although the motion was steady, it was not \u201ca notably high rate of activity\u201d that would be sufficient for it to be considered rapid. [Appellant\u2019s] 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.\nThe ALJ denied and dismissed appellant\u2019s request for benefits. In an opinion filed February 21, 1997, the full Commission affirmed and adopted the ALJ\u2019s decision.\nAppellant argues that the Commission\u2019s 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\u2019s point is well taken. Nonetheless, appellant does call into question the Commission\u2019s Throckmorton test for rapid motion.\nTwo 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\u2019s alternative arguments was that his injury was compensable as a \u201crapid repetitive motion\u201d 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.\nWe affirmed the Commission\u2019s denial of benefits. See Lay, supra. We did not think Baysinger was dispositive: Baysinger addressed the repetitive element of \u201crapid repetitive motion,\u201d 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.\nAlthough we do not provide a comprehensive definition of what constitutes \u201crapid repetitive motion,\u201d 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 \u00a7 11-9-102-(5) (A) (ii) (a).\nLay, 58 Ark. App. at 41, 944 S.W.2d at 870.\nIn 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 \u201ca notably high rate of activity.\u201d See Kildow, 58 Ark. App. at 199, 948 S.W.2d at 103. We noted our holding in Baysinger which rejected the Commission\u2019s Throckmorton standard to determine if an activity was repetitive. We observed that \u201c[i]n its ordinary usage, rapid means swift or quick.\u201d 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\u2019s 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.\nWe did not adopt the Commission\u2019s Throckmorton test for rapidity in either Lay or Kildow. We have not required a showing of \u201ca notably high rate of activity.\u201d See Kildow, 58 Ark. App. at 203, 948 S.W.2d at 103-104. Both Lay and Kildoio were handed down after the Commission filed its opinion in the case now before us. Nonetheless, the Commission should review appellant\u2019s case in light of these decisions. \u201cWhere 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.\u201d Edward H. Levi, An Introduction to Legal Reasoning 33 (1949).\nBecause 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\u2019s interpretation of section 11-9-102(5) (A) (ii) (a) was \u201ctoo restrictive.\u201d Baysinger, 55 Ark. App. at 176, 934 S.W.2d at 230. We reversed and remanded to the Commission \u201cfor a new determination on the issue of appellant\u2019s meeting his burden of proof.\u201d 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. \u00a7 11-9-704(b).\nFinally, it is appropriate to repeat an observation previously made by Judge Cooper: \u201cWe 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\u2019s prohibition against broadening the scope of the workers\u2019 compensation statutes and the legislature\u2019s express statement that the controlling purpose of workers\u2019 compensation is to pay benefits to all legitimately injured workers.\u201d 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\u2019s efforts.\nReversed and remanded.\nRobbins, C.J., and Meads and Roaf, JJ., agree.\nJennings and Stroud, JJ., dissent.\nAppellee argues that appellant did not demonstrate that the major cause of her \u2022condition was her employment activity. We do not reach this argument, because it was not ruled on by the Commission. See W.W.C. Bingo v. Zwierzynski, 53 Ark. App. 288, 921 S.W.2d 954 (1996). We express no judgment in this opinion on any question other than the Commission\u2019s interpretation of the term \u201crapid\u201d in the phrase \u201crapid repetitive motion.\u201d", "type": "majority", "author": "D. Franklin Arey, III, Judge." }, { "text": "John E. Jennings,\ndissenting. 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\u2019s actions at work were \u201crapid\u201d within the meaning of Ark. Code Ann. \u00a7 11-9-102(5). I cannot agree that the Commission used an inappropriate standard.\nOne of the definitions of a \u201ccompensable injury\u201d is an injury \u201ccaused by rapid repetitive motion.\u201d Ark. Code Ann. \u00a7 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 \u201crepetitive\u201d 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. Bays-inger did not address the statutory requirement that the motion be \u201crapid\u201d and has no real application to the case at bar.\nIn Kildow v. Baldwin Piano & Organ, 58 Ark. App. 194, 948 S.W.2d 100 (1997), we said that \u201crapid\u201d means \u201cswift or quick.\u201d 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 \u201crapid\u201d means \u201ca notably high rate of activity.\u201d\nThe 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\u2019s decision in Lay that the claimant\u2019s activity was not sufficiently \u201crapid,\u201d despite the fact that the Commission evidently used its \u201cnotably high rate of activity\u201d standard. See Lay, 58 Ark. App. at 40-41.\nIn short, I can see no meaningful difference between the language used by the Legislature, \u201crapid\u201d; the language we used in Kildow, \u201cswift or quick\u201d; and the language used by the Commission, \u201ca notably high rate of activity.\u201d No useful purpose can be served by remanding this case to the Commission; I would decide the issue on the merits.\nI am authorized to state that Judge Stroud joins in this dissent.", "type": "dissent", "author": "John E. Jennings," } ], "attorneys": [ "Tom Thompson, for appellant.", "Womack, Landis, Phelps, McNeill & McDaniel, by: Richard Lusby, for appellee." ], "corrections": "", "head_matter": "Brenda Ann RUDICK v. UNIFIRST CORPORATION\nCA 97-611\n962 S.W.2d 819\nCourt of Appeals of Arkansas Divisions II and III\nOpinion delivered January 28, 1998\nTom Thompson, for appellant.\nWomack, Landis, Phelps, McNeill & McDaniel, by: Richard Lusby, for appellee." }, "file_name": "0173-01", "first_page_order": 195, "last_page_order": 201 }