Opinion
CLAIM NO. E606097
OPINION FILED JUNE 24, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by JOHN BARTTELT, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by MIKE ROBERTS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed
OPINION AND ORDER
[2] This matter is currently before the Commission on remand from the Court of Appeals. In its Opinion delivered November 4, 1998, the Court stated:
However, the Commission erred as a matter of law in its application of Ark. Code Ann. section 11-9-102(5)(E)(ii) because it required a finding that appellant's work, as opposed to her injury, was the major cause of the disability or need for treatment.
Accordingly, the Court reversed our Opinion and remanded this claim to the Full Commission for a reconsideration of the facts. After reviewing the evidence impartially, we find the claimant has failed to meet her burden of proof in establishing a compensable injury. Therefore, we find that our previous Opinion denying the claim should be affirmed.
The record reflects that claimant was hired by respondent in August of 1995. Claimant contends that by December of 1995, she began to develop numbness in her right hand and noticed a decrease in her ability to grip. Claimant reported her symptoms to Dr. Ken Carpenter on January 2, 1996, who eventually ordered nerve conduction studies after claimant's condition failed to improve with conservative treatment. Nerve conduction studies performed on February 14, 1996, indicated moderate right carpal tunnel syndrome and mild to moderate left carpal tunnel syndrome. Dr. Carpenter referred claimant to Dr. Larry Mahon who performed right side carpal tunnel release surgery on March 28, 1996.
With regard to causation, Dr. Mahon noted in his August 23, 1996, report:
I must rely totally upon the history given me by the patient, and without some other evidence to the contrary of either some pre-existing disease process or some pre-existing symptoms prior to her employment with Wal-Mart, I can only state the four-months' history of doing repetitive motion as cashier is compatible with carpal tunnel syndrome such as this patient exhibits.
* * *
By the same token, I have seen countless patients develop carpal tunnel syndrome without history of any job requiring repetitive motions and without history of isolated injury at work or at home.
Dr. Mahon elaborated on his comment in a September 6, 1997, letter in which he stated:
I can only repeat that it is compatible with her disability and need for treatment, but cannot unequivocally state it does or does not account for more than fifty percent of her disability or need for treatment.
At the time this claim was first before the Commission, we were still interpreting Ark. Code Ann. § 11-9-102(5)(A)(ii) to require a showing of rapid repetitive motion even for claimants with carpal tunnel syndrome. However, after we delivered our first Opinion in this claim, the Arkansas Supreme Court in Kildow v. Baldwin Piano and Organ, 333 Ark. 335, ___ S.W.2d ___ (1998), held that carpal tunnel syndrome is a specific injury under the sub-section for rapid repetitive motion and a showing of rapid repetitive motion is not necessary. However, the Court stated that claimants with carpal tunnel syndrome must still prove an injury which arose out of and in the course of employment and must produce objective medical evidence that the injury is compensable and, finally, must prove that the alleged injury is the major cause of the disability or need for treatment. Finally, Ark. Code Ann. § 11-9-102(16)(B) provides:
Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.
In our opinion, the opinion offered by Dr. Mahon is purely speculative and does not meet the statutory requirement of stating an opinion of compensability within a reasonable degree of medical certainty. The opinion offered by Dr. Mahon in the case does not provide any definitive guide to whether claimant's carpal tunnel syndrome condition is causally connected to her employment. Dr. Mahon can only state that her injury is compatible with her work but by the same token such injuries have developed without any relationship to one's work. In our opinion, Dr. Mahon's opinion addresses compensability and is insufficient to carry claimant's burden of proof. In this regard, the Arkansas Supreme Court stated:
Now, medical opinions addressing compensability under Section 11-9-102(5)(A)(i) must be stated in terms expressing a medical expert's reasonable certainty that the claimant's internal or external physical harm was caused by his accidental injury.
Service Chevrolet v. Atwood, 61 Ark. App. 190, ___ S.W.2d ___ (1998). (Although the Court was concerned with a specific incident injury under § 11-9-102(5)(A)(1), the medical opinion within a reasonable degree of medical certainty requirement is the same). The medical opinion offered by the claimant's physician in the Atwood claim where the physician stated: "Certainly, an acidic solution such as wheel cleaner can cause irregular corneal astigmatism like that present . . .", is succinct and specific and meets the reasonable certainty requirement. However, Dr. Mahon's opinion is not as specific. Dr. Mahon could only state that the injury was compatible with work, but he also tempered this causation opinion with the statement that carpal tunnel may occur without any work-related history. Accordingly, we find that Dr. Mahon's reports do not state a medical opinion with sufficient probability so as to satisfy the requirements of Ark. Code Ann. § 11-9-102(16).
Moreover, we find that claimant has failed to prove by a preponderance of the evidence that her alleged compensable injury is the major cause of the disability or need for treatment as required by A.C.A. § 11-9-102(5)(E)(ii) (Supp. 1997). Major cause is defined as fifty percent of the cause. A.C.A. § 11-9-102(14)(A) (Supp. 1997). In our opinion, the evidence simply fails to support a finding that claimant's injury was the major cause of her disability or need for medical treatment. The only evidence addressing compensability is Dr. Mahon's equivocal opinion set forth above in which he could not state with any specificity that claimant's work accounted for more than 50% of her disability or need for treatment. Even if we were to give the claimant the benefit of the doubt and assume that by recounting claimant's work history which claimant contends caused her injury, Dr. Mahon implicitly meant claimant's alleged rapid repetitive motion injury, Dr. Mahon's opinion still fails to state an opinion regarding compensability within a reasonable degree of medical certainty. Michael Crudup v. Regal Ware, Inc., Full Commission Opinion filed March 18, 1999 ( E704404 E706060).
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that claimant failed to prove that she sustained a compensable carpal tunnel syndrome injury. In our opinion the evidence fails to preponderate in favor of a work related causal connection. Clearly, Dr. Mahon's opinion was the strongest evidence in favor of causation, and we find it to be equivocal on both the major cause and causation issues. Therefore, we find that our previous decision denying the compensability of this claim must be affirmed.
IT IS SO ORDERED.
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DISSENTING OPINION
[16] This case comes on for review before the Commission on remand from the Arkansas Court of Appeals. The Court found error in the Commission's finding that claimant's work, as opposed to her injury, was the major cause of the disability or need for treatment. Another argument advanced for denying this claim is that claimant failed to prove that her condition is causally related to her employment. I find that claimant has met her burden of proving that she sustained a compensable injury. Accordingly, I must respectfully dissent from the majority's opinion in this case.I do not believe this claim can be denied based on the "major cause" requirement. The objective medical evidence proves the injuries' (CTS) existence. Claimant actually had surgery to correct the CTS. Thus, it appears to me that this injury was the major cause of the disability or need for treatment. I certainly do not recall any condition, other than CTS, being discussed or medically treated as part of this claim for compensation.
The primary question should be whether claimant's condition (carpal tunnel syndrome) is causally related to her employment. Claimant must prove this causal connection by a preponderance of the evidence. Wal-Mart Stores, Inc. v. Van Wagner, ___ Ark. ___, ___ S.W.2d ___ (May 6, 1999). Further, medical proof of causation is not required in every case.Id. Claimant can meet this burden of proof, even if the principal evidence of causation is claimant's own testimony. Id. Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Commission. Id.
In my opinion, claimant has proven by a preponderance of the evidence that her carpal tunnel syndrome is causally related to her employment. Claimant presented credible testimony concerning her hand intensive job duties (which does not appear to be in dispute) and the lack of any nonwork-related explanation for her condition. Dr. Mahon believed claimant's history was accurate and relied on it and the lack of any preexisting disease or other symptoms to opine that the "repetitive motion as cashier is compatible with carpal tunnel syndrome. . ." Claimant's credible testimony, coupled with Dr. Mahon's opinion, is sufficient to satisfy the burden of proof.
I believe Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), relied on by the majority, actually supports the compensability of this claim rather than the denial. In Atwood, the Arkansas Court of Appeals found that the physician's use of "can cause" was sufficient to satisfy the statutory requirement that any opinion concerning compensability (or causation) should be stated within a reasonable degree of medical certainty. The American Heritage Dictionary, (2nd ed.) defines compatible as capable of; capable as able or having capacity or ability and can as a physical or mental ability. Also under the definition of can, the usage section states that . . . can should be used only to express the capacity to do something." Thus, "compatible with" is actually another way of saying "can cause."
Based on the above evidence and analysis, I find that claimant has met her burden of proving by a preponderance of the evidence that her carpal tunnel syndrome is causally related to her employment. Accordingly, I must respectfully dissent.
______________________________ PAT WEST HUMPHREY, Commissioner