Hapney v. Rheem Manufacturing Co.

John E. Jennings, Judge. Renate Hapney filed a workers’ compensation claim, contending that she had sustained a ruptured cervical disc while working at Rheem Manufacturing on February 2, 1996. She proceeded under three alternative theories of compensability, arguing that her injury was: (1) caused by a specific incident and identifiable by time and place of occurrence under Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1997); (2) caused by rapid repetitive motion under § ll-9-102(5)(A)(ii)(a) (Supp. 1997); and (3) a back injury not caused by a specific incident (i.e., gradual onset) under § ll-9-102(5)(A)(ii)(b) (Supp. 1997). The administrative law judge found the claim to be com-pensable, but the Commission reversed, holding that Mrs. Hapney had failed to meet her burden of proof. The issue on appeal is whether the Commission’s decision is supported by substantial evidence. We hold that it is and affirm. Mrs. Hapney had worked for Rheem Manufacturing since 1984. Before February 2, 1996, she worked primarily as a press operator, but on that day she was required to fill in on the assembly line. Her job was to attach two metal parts to an air-conditioning unit with a total of six screws. She testified that this required her to bend over to fit each plate to the unit and attach it with three screws. On February 2, she assembled 316 units during a ten-hour shift. She testified that although her neck and right arm were hurting, she finished out her shift. On Monday, February 5, she returned to work and told the plant nurse she was having shoulder and neck pains and was sent to the company doctor, Dr. Carson. She was placed on light duty and worked the remainder of that week. On March 29, a cervical MRI disclosed a herniated disc at C5-6. Mrs. Hapney testified that she had had an injury in April 1993 which resulted in shoulder surgery. She testified that she had had neck pain from time to time since that injury, but that the pain after February 2, 1996, was more severe. Rheem Manufacturing contended before the Commission that the herniated disc was a continuation of the 1993 injury. While Mrs. Hapney testified that she did not know when she was injured in February 1996, she believed it to be on February 2 because that was when the pain increased. When the question is whether the Commission’s decision is supported by substantial evidence, we will reverse only if we are persuaded that fair-minded persons could not reach the Commission’s conclusion. High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998). The decision of the Commission is entitled to the same weight we give to a jury verdict. Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998). Mrs. Hapney first contends that her herniated cervical disc is compensable under Ark. Code Ann. § 11-9-102(5)(A)(ii)(b) as “a back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence.” The Commission held that the gradual-onset exception for back injuries does not extend to the neck. Arkansas Code Annotated section 11-9-704(c)(3) (Repl. 1996) requires that the statute be strictly construed. Strict construction means narrow construction. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998). Strict construction requires that nothing be taken as intended that is not clearly expressed. Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993). The doctrine of strict construction is to use the plain meaning of the language employed. Holaday v. Fraker, 323 Ark. 522, 915 S.W.2d 280 (1996). The first definition of “back” in the American Heritage Dictionary (2nd ed.) is “the region of the vertebrate body located nearest the spine, in man consisting of the rear area from the neck to the pelvis.” The second definition is “the backbone or spine.” The first definition contained in Merriam Webster’s Collegiate Dictionary (10th ed.) is “the rear part of the human body esp. from the neck to the end of the spine.” It is defined in the SloanDorland Annotated Medical-Legal Dictionary as “the posterior part of the trunk from the neck to the pelvis.” Although the cervical vertebrae are certainly part of the spine, we think that in common parlance “back” and “neck” are used to described different parts of the human body. The statute is at best ambiguous, and the supreme court has recently said that under those circumstances the administrative agency’s interpretation is highly persuasive. Social Work Licensing Bd. v. Moncebaiz, 332 Ark. 67, 962 S.W.2d 797 (1998). Given the requirement of strict construction, we conclude that the Commission’s interpretation of the statute was correct. The legislature could have easily used the word “spine” rather than “back,” if that was what it intended. Appellant next contends that the Commission was bound to find that her injury was the result of a “specific incident” under Ark. Code Ann. § 11-9-102(5) (A) (i). In this regard, the Commission noted that the appellant testified that she did not know when she was injured and did not report a work-related injury to her employer on February 2. It also noted that she did not provide a history of a specific incident to any of her treating physicians. We hold that the Commission’s conclusion in this regard is supported by substantial evidence. See, e.g., Stallings Bros. Feed Mill v. Stovall, 221 Ark. 541, 254 S.W.2d 460 (1953); Mikel v. Engineered Speciality Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). Finally, appellant contends that the Commission erred in not concluding that her neck injury was caused by rapid repetitive motion under Ark. Code Ann. § 11-9-102(5)(A)(ii)(a). The Commission held that her actions were not sufficiently rapid to satisfy the statute and that furthermore there was insufficient evidence as to which of her movements on the assembly line actually involved her neck. While we have struggled with the language of this particular statute, we have not attempted to reduce the law to a mathematical formula. The issue will ordinarily be a question of fact, not one of law. See Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998). Under the facts of this case we believe that the Commission’s conclusion is supported by substantial evidence. Boyd v. Dana Corp., 62 Ark. App. 78, 966 S.W.2d 946 (1998), is distinguishable on several grounds. The injury there was carpal tunnel syndrome, a typical “rapid repetitive” injury, and the claimant in Boyd had performed the same task for sixteen years, as opposed to the one day involved in the case at bar. For the reasons stated, the decision of the Commission is affirmed. Stroud and Crabtree, JJL, agree. Griffen, Roaf, and Rogers, JJ., dissent.