BEFORE THE RKNSS WORKERS' COMPENSTION COMMISSION CLIM NO. G303667 JUN BRRER, Employee COMPSS GROUP US, INC., Employer NEW HMPSHIRE INSURNCE COMPNY, Insurance Carrier/TP CLIMNT RESPONDENT RESPONDENT OPINION FILED NOVEMBER 20, 2015 Pre-hearing conference before DMINISTRTIVE LW JUDGE ERIC PUL WELLS, in Springdale, Washington County, rkansas. Claimant represented by EVELYN E. BROOKS, ttorney, Fayetteville, rkansas. Respondents represented by RICK BEHRING, JR., ttorney, Little Rock, rkansas. STTEMENT OF THE CSE On ugust 25, 2015 the above captioned claim came on for a hearing at Springdale, rkansas. pre-hearing conference was conducted on March 11, 2015, and a pre-hearing order was filed on March 11, 2015. copy of the pre-hearing order has been marked Commission's Exhibit No. 1 and made a part of the record without objection. t the pre-hearing conference the parties agreed to the following stipulations: 1. The rkansas Workers' Compensation Commission has jurisdiction of this claim. 2. On all relevant dates, the relationship of employee-employer-carrier existed between the parties. 3. The claimant is entitled to a weekly compensation rate of $259.00 for temporary total disability and $194.00 for permanent partial disability. 4. Respondents have controverted this claim in its entirety. By agreement of the parties the issues to litigate are limited to the following: 1. Whether claimant sustained compensable gradual onset injuries to her shoulders bilaterally culminating on or about October 2, 2012.
2 2. Whether claimant is entitled to medical treatment for her shoulders bilaterally. The claimant's contentions are as follows: On or about October 12, 2012, Claimant injured her shoulders while working. The claimant reserves all other issues. The respondents contentions are as follows: 1. The Claimant did not sustain compensable injuries to her shoulders while employed by the respondent employer. 2. The Claimant is not entitled to any benefits. 3. This claim has been denied and controverted in its entirety. 4. The Claimant did not timely and properly report the alleged work-related injuries to her shoulders. 5. There were no objective medical findings of injuries to her shoulders. 6. It is the position of the Respondents that the Claimant s job was not rapid or repetitive. 7. It is the position of the Respondents that the Claimant s problems with her shoulders and need for treatment, if any, are not in any way related to her employment for the respondent employer but are related to her either prior incidents and/or a pre-existing degenerative condition. 8. In the alternative, if it is determined the Claimant sustained compensable injuries to her shoulders as a result of the incident on or about October 2, 2012, the Respondents contend the Claimant merely sustained a temporary aggravation of her pre-existing condition for which she previously resumed her baseline condition. 9. In the alternative, if it is determined the Claimant sustained compensable injuries to her shoulders as a result of the incident on or about October 2, 2012, the Respondents contend the alleged incident on or about October 2, 2012, was not the major cause of the resultant condition but instead the result of pre-existing disease, condition, or natural process of aging. 10. In the alternative, if it is determined the Claimant is entitled to any benefits as a result of the incident on or about October 2, 2012, the Respondents hereby request a set off for all benefits paid by the Claimant s group health carrier, all short term disability benefits received by the Claimant, all long term
3 disability benefits received by the Claimant and all unemployment benefits received by the Claimant. The claimant in this matter is a 53 year-old female who was employed by the respondent as a member of the night cleaning crew. The claimant alleged to have sustained compensable gradual onset injuries to her shoulders bilaterally which culminated on or about October 2, 2012. The claimant had bilateral shoulder difficulties that pre-dated her current claim. The claimant underwent right shoulder surgery in 2009 and left shoulder surgery in 2010. Both the claimant and respondent s medical records document her preexisting bilateral shoulder difficulties. On direct examination the claimant gave the following testimony about her job duties: nd in October of 2012, were you working for the Compass Group cleaning Bentonville High School? What were your duties at that time? Cleaning. In the summertime we had to remove and wax, moving furniture, everything. ll right. Let's talk about your duties in the summertime first. What exactly would you do during the day? You mean when they are not in school? lmost every time I had to put wax on. On what? The floors. Okay. When there weren't any classrooms to be waxed, they put us to moving furniture, desks, things of that nature. Or mopping floors preparing them for the wax.
4 Okay. Did all of the classrooms at the high school have to be waxed? lmost all of them. Only the offices had carpet. Okay. nd how many people were working with you doing this wax and mopping and moving furniture? For the waxing part, in the beginning it was just three. There towards the end, they put more people on, five. nd how many hours a day would you work? Eight. ll right. nd did you have a requirement to get a certain number of classrooms done a day? No. No, but, yes, we did. We had to go fast because there were several of us that were moving on from this place to this place and there were several of us moving. What do you mean moving from place to place? One classroom to the next. nd what kind of furniture did you have to move? Desks, chairs, the students' desks, cabinets. nd about how much of your day would be spent moving furniture? When there were classrooms that were not ready for waxing, they put us to moving furniture. Okay. nd how did you wax a floor? First, we had to wash them. Then we had to sweep them. We had to make sure there was no dust, lint, hair, nothing on the floor. nd then we had to use special mops to put the wax on. nd would you just go over the floor one time with the special mop? No. Sometimes we had to go back over it six or eight times depending on how it looked. nd what were your duties during the school year?
5 My day would start, I would show up in the morning. I had to get my little cart ready. I had to make sure that I had a trash bin set up. I had to make sure that I had trash bags. I made sure I had chemicals ready for cleaning. I had to make sure I had toilet paper, paper towels. I had to make sure I had the soap ready to use. Next, I would have to take my cart and the trash bin upstairs and I had to remove all of the trash from all of my area. fter the trash bin, I would take that and set it off to one side and then I would go get my other little cart and I would start in the classrooms. I had to go in and I had to dust; I had to sweep; I had to clean; I had to mop; I had to dust. I had to do all of it. You know, each classroom had about 30 desks in each classroom and I had to take care of all of it. There were about 12 desks that had to be cleaned. nd I had to mop every day, every time. That is my job. That is what I did. Did you move the desks to mop or did you mop around the desks? I could leave it and just sweep and mop around it. nd do you recall how many classrooms you were responsible for cleaning? More or less, including the stairs, there were also offices, three little rooms that had to be cleaned. More or less it was 24 to 25 classrooms, but then there were cleaning windows, too. What windows did you have to clean? They were to one side of the offices. There is a little kitchen and it was off to one side there. nd how many hours a day would you work during the school year? Well, eight hours. Were there times when you had to clean the gym? Weekly we had to go to -- sometimes two or three times, we had to go clean and sweep, pick up all the trash. We had to go to other gyms. We had to do the chairs, stack the chairs, put the chairs out. When would that be that you would have to clean the gym? When there were games.
6 On cross-examination the claimant was also asked at length about her job duties for the respondent as follows: Okay. nd I believe you testified that you worked 40 hours a week? It was eight hours that we worked. nd you worked Monday through Friday? Okay. nd I understand during the workday you would have gotten two breaks? Then you would have also gotten a lunch break? You would get one 15- to 20-minute break in the beginning of your shift? Yes, at 6:00 o'clock we would take one. Okay. nd then you would get your lunch or dinner break? nd then you would get your last break during the last half of the day? Now, you would agree with me that your jobs varied depending on what time of year it was; is that correct? You described some of the stuff that you would do during the summer? nd during the school year, you would do a separate set of tasks?
7 Now, as far as when school is in session, understand you would have had a designated area that you would be responsible for? nd this designated area remained the same more or less throughout your employment with the school? You talked a little bit about your summer activities and that you would wax floors? s I understand it when you are waxing a floor, you will pour a line of wax? Then you push the broom across the line? ll right. Now, when I talked to you at your deposition, at least at that time you didn't believe that those activities aggravated or injured your shoulders at all; is that correct? No. No, huh-uh. s I recall it in your deposition, you believed it was those activities during your night work? Well, yes. Well, yes. But when I would have to put the wax on, that also caused problems and hurt me because I had to do that for eight hours. MR. BEHRING: May I approach, Judge? THE COURT: You may. [BY MR. BEHRING]: Ms. Barrera, I am going to hand the interpreter a copy of your deposition. That is fine. I am going to read some portions of it to the interpreter and have her read them to you, okay? Is that okay?
8 On Page 40, Line 6, I began a question. I said, "When you started having these problems again after your surgery, do you remember if you were doing summer type work or the regular school season work?" THE INTERPRETER: Does the attorney wish for the interpreter to read the whole thing or just the question? MR. BEHRING: No, just the question is fine. [BY MR. BEHRING]: Ms. Barrera, in your answer you said, "During the regular school year is when I noticed because it was way too much work." nd then I asked you on Line 19 through 23, "So at least in your mind you felt like these problems you started having with your shoulders were not associated with the work you were doing in the summer, but were associated with the work you were doing during the school year." nd your answer was, "" I don't remember. It has been so long ago, I don't remember. You don't remember the deposition that you took on June 3, 2015? I don't remember this question. Okay. nd then on Page 41, starting on Line 2 through 4, I asked you, "So when you started noticing you were having problems, you were doing your normal school year tasks?" nd again, your answer was "Yes"? Okay. s far as your summer tasks went, I understand that each day you first would have had to prep to begin the day? Yes, to put the wax on. nd I understand that you estimated that would take between 15 and 20 minutes? nd then you would have to clean the floor, sweep it, things of that nature to get the floor clean?
9 Okay. nd you had estimated that was anywhere from two to three minutes? I had to sweep to make sure there was no hair on the floor. nd you are using a dust mop? It was like a long mop like this (indicating). By like this, it looks you were holding your hands out and it looks like a couple of feet? More or less, about like this (indicating). nd then as far as waxing, we talked about what you did, but I understand that it would take about 30 to 40 minutes to wax a room; is that correct? Well, no -- well, it depended on what we had to do. If we had to put several coats on. So are you saying it took about 30 or 40 minutes to put a coat of wax on? No. It was for the coats. It was -- it was for all of the coats. Sometimes we had to do like six. It just depended on how the floor looked. How long did it take you to do a coat of wax in one of the classrooms? It just depended. I would say about 20 minutes, but it just depended. Some of the classrooms were really large. Some of the classrooms were really small. Some of the rooms were really small. It just depended. t the end of the day during the summer, you would then be responsible for cleaning up your mop and your equipment that you used that day, correct? We had to clean the mops. We had to, you know, anything we used, we had to clean. We had to make sure everything was picked up and ready for the next day. Now, I want to talk to you a little bit about during the school year, okay? I understand that your cleaning responsibilities would vary depending on whether you are cleaning a room, an office, a bathroom, a stairwell; is that correct?
10 No, it was daily. Daily I had to clean the bathrooms, the stairs, the windows, the classrooms, the floors, everything. I had to do the whole thing. I had to dust everything every day. nd you said that was about 25 rooms? That is everything included: Offices, stairs, bathrooms, more or less, yes. More or less, I am not exactly sure, but with everything altogether, around there. Okay. If you are cleaning an office, I understand you would vacuum? Yes, I used the vacuum there. nd if you are cleaning a classroom, then you might use a broom or a dust mop and a mop? They were these brooms, really big, with the big sticks. There were not some smaller ones like this. Those are the ones we used most of the time for the classrooms. I understand during the school year you would have clocked in around 3:30 in the afternoon; is that correct? Yes, that was when we clock in. Okay. nd the first thing I understand you would have done was prepare your trash cart? Okay. You put supplies and things like that on the cart and I understand that would take about 20 minutes to half hour; is that correct? Okay. Then I understand you are taking your trash cart to your designated area and picked up the trash? Okay. nd you would have replaced the old trash bags with new trash bags? New ones, yes. Okay. nd you are doing this, you have an actual cart that you are pushing around, correct?
11 Well, I didn't understand the question. Did you mean did I use it at work or I didn't understand? Sure. When you are collecting the trash, do you put the trash onto a cart that you are pushing and rolling around? It was in a trash can with wheels and then we would dump that into a bigger cart. nd I understand it took you about an hour to do the trash? fter you completed the trash, I understand your next task would have been preparing a cart to clean the individual rooms? Okay. nd I understand that took about 15 to 20 minutes to do? nd this is just gathering, cleaning supplies and things of that nature to put on your cart? Toilet paper, putting water in the bucket, paper towels, you know, things I was going to use to clean. nd I understand that your routine was to clean one room and when you got that room completed move on to the next room? I understand the first thing you would have done in the room is dust? You are using a feather duster? Yes, feather duster. nd your dusting things above and below your head? The cabinets, the blinds, the desk, I had to dust all of that. The blackboards, you know, because they had a lot of ink dust on the bottom, I had to dust that to get off.
12 The blackboards you are talking about, are they wipe boards? They were white, but they left them black. Well, we will get to that. I understood it took you about ten minutes to dust a room; is that correct? Well, more or less. nd then the next thing I understand you would do is sweep the room? Uh-huh. Is that a "yes"? I understand that would take about 10 or 15 minutes? Well, more or less. Well, yes. Then I understand your next task would be to clean the desk and the wipe board? nd the kids' tables, like 30 tables, each classroom. You are using a spray and a washrag? Yes, or water, you know, whatever there was to clean. nd I understand that took about 10 to 15 m inutes? Well, more or less. I couldn't tell you exactly. You know, those wipe boards, sometimes we just could not get it off. We were scrubbing the boards off. They left them black and it took a long time for us to try to get them clean. They did the same things with the desks. I understand the last task you would do in a room is mop; is that correct? nd that would take about 15 to 20 minutes? You know, around that time. I couldn't tell you exactly. Depending on how dirty it was. Okay. Would you agree with me that these different tasks require different physical motions for you to do?
13 Well, what I used for everything was my hands. Sure. You might do something different when you are sweeping than when you are dusting? Well, yes. When it was on the floor, it would be, you know, working around the table legs and the chairs and all that down below. Then dust would be up above. You are permitted to stop and get a drink or use the restroom if you needed to? Okay. If you couldn't complete your area, would someone come and help you complete it? No. I had to hurry from the moment I get there and go to classroom to classroom to classroom because if we did not get our area done and we didn't finish everything, they would chew us out. Okay. nd you were able to finish your area? I made an effort. I worked really hard to do my job exactly like I was supposed to do to the best of my ability. The respondent also introduced a list of job duty specifications found beginning at Respondent s Exhibit 2, Page 8 and ending at Respondent s Exhibit 2, Page 17 with a signature page written in English and Spanish that was signed by the claimant under the Spanish section. Those written requirements appear very similar to the claimant s testimony about her job duties. Medical evidence submitted into the record does indicate that the claimant was suffering from bilateral shoulder difficulties on and after October 2, 2012. n MRI of the claimant s left shoulder taken on February 18, 2013 shows objective medical evidence of derangement to the claimant s left shoulder. However, in order to prove compensable gradual onset injuries to her shoulders bilaterally, the claimant must prove by a preponderance of the evidence that she engaged in both rapid and repetitive employment services for the respondent.
14 It is clear from the claimant s own testimony that she is unable to meet the burden of rapid and repetitive employment services. Her job duties were not repetitive. They varied greatly throughout each day including sweeping, cleaning windows, collecting trash, waxing floors, moving furniture, mopping, cleaning blackboards, and other miscellaneous tasks. The claimant did not perform repetitive work. It also appears that the claimant s work was not rapid. t the hearing in this matter, the respondents called ndrew Thacker who was the Unit Director II for the respondent. Mr. Thacker gave the following testimony about his job duties for the respondent: nd what are your job responsibilities? We run a contract for Bentonville city schools and Rogers city schools and we manage custodial, light maintenance. I am responsible for payroll, supplies, dealing with principals. Just everything that has to do with employees and the day-to-day cleaning of schools. Okay. One of those schools would have included the Bentonville High School? nd that would have been where Ms. Barrera was employed? Do you know Ms. Barrera? Part of your responsibilities would have included supervising Ms. Barrera? What was Ms. Barrera's position? night cleaner. nd you had a chance to generally listen to her talk about her job responsibilities. More or less, was that what she was supposed to do?
15 Mr. Thacker also gave testimony about the pace of work at the Bentonville School as it related to cleaning as follows: Okay. Would her job tasks have varied whether it was in a school session or out? Would there be some weeks that you would see Ms. Barrera more and some weeks that you would see her less? It just depends on the week. How would you describe her work pace when you did see her? Just a normal pace, as everybody else. Okay. Was there ever a time where you saw her and you thought that her work pace was fast? Not extremely, no. Okay. nd I understand that she was allowed to take restroom breaks, drink breaks, and things of that nature? nd describe the breaks that she would get. Everyone gets two 15-minute breaks paid and a 30-minute unpaid lunch break. In your experience with Mr. Barrera, was she able to complete her tasks on a daily basis? If there was an issue of her not completing her tasks on a daily basis, would that be something that you were made aware of? You were never made aware of that?
16 Not that I remember, no. In your opinion, would she have ample time to complete her daily tasks? ll right. Was there some consideration taken into designating the areas for each custodian? Most of the sections were already in place whenever I took over the high school. We do try and divide them depending on how hard the classrooms are to clean. re they divided with any consideration on how long they would take to clean them? Okay. I understand that or Ms. Barrera testified that she would have worked the night shift from 3:30 to 12:30 p.m. Was that sufficient time, in your opinion, to complete her area in a normal pace? Have you seen custodians try to complete their areas at a fast pace? How quickly could it be done? Somewhere around six hours, six and a half hours, if they are really hustling. What are custodians -- I keep calling them custodians -- a night janitor supposed to do if they complete all of their tasks? They should do their -- detail their section or find the supervisor to see if anybody needs help. Is there any incentive for completing your area early? No.
17 If you finish your work, I guess you are required to do more work; is that correct? Essentially, yes. In your experience, is anyone hurrying? Based on your observations, are people hurrying trying to get their sections done? No. They want to do their job and that is most of them. The claimant has failed to prove by a preponderance of the evidence that she suffered a gradual onset injury to her shoulders bilaterally which culminated on October 2, 2012. Specifically, she failed to prove that her job duties or employment services for the respondent were both rapid and repetitive in nature. From a review of the record as a whole, to include medical reports, documents, and other matters properly before the Commission, and having had an opportunity to hear the testimony of the witness and to observe their demeanor, the following findings of fact and conclusions of law are made in accordance with.c.. 11-9-704: FINDINGS OF FCT & CONCLUSIONS OF LW 1. The stipulations agreed to by the parties at the pre-hearing conference conducted on March 11, 2015, and contained in a pre-hearing order filed March 11, 2015, are hereby accepted as fact. 2. The claimant has failed to prove by a preponderance of the evidenced that she sustained gradual onset injuries to her shoulders bilaterally culminating on or about October 2, 2012. 3. The claimant has failed to prove by a preponderance of the evidence that she is entitled to medical treatment for her alleged gradual onset bilateral shoulder injuries. ORDER Pursuant to the above findings and conclusions, I have no alternative but to deny this claim in its entirety.
18 If they have not already done so, the respondents are directed to pay the court reporter, Veronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. IT IS SO ORDERED. ERIC PUL WELLS DMINISTRTIVE LW JUDGE