dissenting. While I agree that Ark. Code Ann. § 11-9-102(5)(A)(ii) requires proof of rapid repetitive motion in order to establish a compensable carpal tunnel syndrome injury pursuant to that provision of the Workers’ Compensation Law, I disagree with and dissent from the majority opinion because it reverses the Commission’s determination that appellant failed to prove that her carpal tunnel syndrome condition was caused by rapid repetitive motion arising out of and in the course of her employment. Simply put, I cannot agree that mere proof that one performs a given series of tasks “over and over again for eight to ten hours a day, five to six days a week, with two fifteen-minute breaks, a thirty-minute lunch break, and short restroom breaks as needed for nearly a year” (majority opinion) satisfies the rapid repetitive motion causation requirement, and certainly not as a matter of law. The record contains no proof about how many times appellant did anything on her job, let alone how rapidly she did it. Therefore, I believe that reasonable persons could have reached the same conclusion that the Commission reached, namely, that appellant failed to prove by a preponderance of the evidence that her carpal tunnel syndrome condition was caused by rapid repetitive motion arising out of and in the course of the employment. For that reason I would affirm the Commission; however, I would also provide the Commission with a workable standard that it could at least apply in deciding the many cases that are certain to arise under this statute.
On one hand, the majority has properly rejected the Commission’s definition of “rapid repetitive” as meaning a notably high rate of activity involving the exact, or almost exactly, same movement again and again over extended periods of time. I agree that our decision last year in Baysinger v. Air Systems, Inc., 55 Ark. App. 174, 934 S.W.2d 230 (1996), means that this definition cannot stand. The case now before us presents the proper situation for defining rapid repetitive motion so that the Commission can apply an approved definition to future cases. For reasons that are unclear, the majority opinion does not provide that guiding definition, yet remands the case to the Commission to continue wrestling with the problem. One would think that the proper role of an appellate court is to provide the very guidance that the majority opinion is careful to avoid.
On the other hand, there is no proof before us about how rapidly appellant assembled electrical components on boards. Appellant presented no proof to the Commission and has pointed to nothing in the record that establishes how many boards she assembled per minute, per hour, or otherwise. The record does not show how many other persons did the same job on the assembly line, the speed of the assembly line, the frequency with which the boards arrived at appellant’s work station, whether appellant assembled every board, every other board, every third board, or assembled the boards according to any other arrangement. Mere proof that she worked on an assembly line for eight to ten hours a day, five to six days a week, proves nothing about how rapidly appellant did anything, let alone how repetitiously she did anything rapidly.
I recognize that any rule will necessarily fail to cover every kind of case that involves rapid repetitive motion, and that the Commission will use its special knowledge concerning workplace injuries in evaluating whether the proof in specific cases fits whatever definition of rapid repetitive motion that is crafted. Nevertheless, we owe it to the Commission, its law judges, and the lawyers who must counsel and represent workers and employers to articulate some meaningful standard that can be used to assess the proof. If one accepts the traditional rule of statutory construction that words must be given their ordinary meaning to effect the intent of the legislature, and that we should follow common sense in that process, we may properly arrive at a workable definition for rapid repetitive motion. Webster’s Third New International Dictionary contains the following definitions:
“Rapid” — marked by a notably high rate of motion, activity, succession, or occurrence.
“Repetitive” (from repetition) — the fact of occurring, appearing, or being repeated again.
“Motion” — an act or instance of moving the body or any of its members. •
Thus, rapid repetitive motion should be defined for purposes of the statute before us as referring to injuries caused by a fast or notably high rate of recurring motion, processes, or actions. This definition can be applied to a broad category of gradual onset conditions without becoming entangled in the specific medical characteristics of particular conditions.
There is a sensible reason why we should not expect physicians to develop or have developed a definition of rapid repetitive motion or activity. “Rapid repetitive motion” is a legal term that the Arkansas General Assembly has developed as part of the causation element for one class of injuries not caused by a specific incident or which are not identifiable by time and place of occurrence. Furthermore, even if medical science might eventually recognize the “rapid repetitive motion” term, the injuries caused by gradual onset conditions attributed to rapid repetitive motion causes will vary so widely that lawyers, judges, and litigants will not be able to apply condition-specific medical definitions with any degree of reliability. The definition that I propose is based on the ordinary usage and meaning of “rapid repetitive motion” consistent with time-honored principles of statutory construction.
It is clear that the General Assembly intended the word “rapid” to modify “repetitive” when it amended the "Workers’ Compensation Law in 1993 by requiring that so-called gradual onset or cumulative trauma conditions such as carpal tunnel syndrome be caused by rapid repetitive motion in order to constitute a compensable injury under the statute before us. The majority appears to recognize that to have been the legislative design. Thus, one would think that a worker claiming benefits for carpal tunnel syndrome under this provision of the statute would be required to at least prove how much of anything was done within a given period of time on a repeated basis. If the law requires proof of rapid repetitive motion, how can the requirement be satisfied without proof about how rapidly a worker’s motions are repeated? Surely the law requires something other than for the Commission to take what amounts to judicial notice that work on an assembly line will move at a swift or quick pace. After all, the statute refers to the rapid repetitive motion of the worker claiming benefits, not the speed with which the assembly fine moves. Otherwise, the burden of proving rapid repetitive motion is no burden at all. A worker need only present the kind of proof found in this record, that she was employed on an assembly line, that she did the same task “over and over again,” and that she worked all day, every day, at that job except for breaks and meals.
Act 793 of 1993 radically changed the way that compensable injury is defined in the Workers’ Compensation Law. Before its enactment, “injury” was defined as “only accidental injury arising out of and in the course of employment.” Ark. Code Ann. §11-9-102(4) (1987). However, considerable litigation arose over the years concerning whether injuries were “accidental” so as to be compensable for workers’ compensation analysis. Employers argued in many instances that an “accidental injury” required proof of some specific incident rather than the gradual onset of a condition over a period of time due to repeated effort. Stallings Bros. Feed Mill v. Stovall, 221 Ark. 541, 254 S.W.2d 460 (1953). But in Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S.W.2d 436 (1956), the Arkansas Supreme Court held that the adjective “accidental” referred to and modified the noun “injury,” and did not refer to the cause of the injury, thereby obviating the requirement that the cause of the injury itself be accidental. Thus, after Bryant Stave, an “accidental injury” was defined to mean every injury to an employee arising out of and in the course of the employment except those injuries caused by the employee’s intoxication or by her wilful intention to bring about the injury or death of herself or another.
The present statute represents the result of efforts by employers to persuade the General Assembly to narrow the compensable injury definition in 1993. Arkansas Code Annotated § 11-9-102(5)(A) contains the definition of “compensable injury,” and sub-categorizes that definition into five areas. Subsection (i) specifically provides that an injury is “accidental” only if it is caused by a “specific incident and is identifiable by time and place of occurrence.” Subsection (ii) refers to those injuries that arise out of the employment and within its course but are not caused by a specific incident or that are not identifiable by time and place of occurrence so as to be deemed “accidental” for compensability analysis. The General Assembly purposely placed a causal requirement of rapid repetitive motion on carpal tunnel syndrome claims arising within subsection (ii), and also imposed a different burden of proof for those claims. Instead of the usual burden of proof (by a preponderance of the evidence), claims arising under subdivision (5)(A)(ii) must be established by a preponderance of the evidence and by proof that the alleged compensable injury (rapid repetitive motion arising out of and in the course of employment causing carpal tunnel syndrome in this case) is the major cause of the disability or need for treatment.
Proof of rapid repetitive motion must mean that a worker has to at least show the rate that she performed the allegedly repetitive motion and how often she repeated that motion. Otherwise, we are disregarding the legislative purpose and the judicial history that underlie the “accidental injury” versus “compensable injury” debate that has occurred in Arkansas for more than forty years concerning gradual onset conditions such as carpal tunnel syndrome. The General Assembly believed that it was resolving that debate in 1993. Despite the concerns of some observers that the changes in the Workers’ Compensation Law are harsh, the legislature made it clear that courts are not to liberalize, broaden, or narrow the law’s scope. Today’s decision is not consistent with that plain legislative purpose to the extent that it essentially gives lip service to the rapid repetitive motion causation requirement for carpal tunnel syndrome injuries in holding that a carpal tunnel syndrome claim is a “compensable injury” absent proof about how rapidly a worker repeated anything, let alone how often she repeated it.
I respectfully dissent.