Opinion
CLAIM NOS. F412612 F612506
OPINION FILED MARCH 25, 2009
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE EVELYN BROOKS, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by the HONORABLE ANDREW IVEY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part, reversed in part.
OPINION AND ORDER
The Arkansas Court of Appeals has reversed and remanded the above-styled case to the Full Commission for additional findings. Wal-Mart Stores, Inc. v. Parker, CA08-437 (Dec. 10, 2008). Pursuant to the remand from the Court of Appeals, the Full Commission finds that the claimant proved she sustained a compensable injury to her right upper extremity. The claimant did not prove she sustained a compensable low back injury.
I. HISTORY
The record indicates that Lavada Susan Parker, now age 50, was hired at Wal-Mart in June 1989. The parties stipulated that the employment relationship existed on all pertinent dates. Dr. Peter R. Heinzelmann examined the claimant in May 2001:
Lavada is a 42-year-old woman seen in the clinic on 05/09/01. She has noticed slight swelling and pain at the base of her right thumb for about a year. Her symptoms began spontaneously.
X-rays show a slight dorsal subluxation of the first metacarpal on the trapezium bone. Her joint space is fairly well maintained on x-ray.
On physical exam, she has point tenderness over the CMC joint of her right thumb when the base of the first metacarpal is pushed in a palmar and dorsal direction it is very painful to her.
Dr. Heinzelmann's impression was "Early osteoarthritis CMC joint right thumb." Dr. Heinzelmann's recommendations included the following: "Hand based thumb spica splint and anti-inflammatory medications such as ibuprofen. . . . She may at some point be a candidate for tendon interposition arthroplasty for the CMC joint of her thumb." Dr. Heinzelmann noted in an addendum, "Ms. Parker states that her thumb pain is made worse by her work activities. She operates a hand-held computer at a Walmart store and also does a lot of unpacking and handling of store goods. She states that her thumb is definitely more painful during and after her work activities as opposed to when she is away from work for a day or two. It appears to be that the arthritic problem at the base of her thumb is aggravated by her work activities."
The claimant testified that she was helping another employee lift a large game table at work in November 2004: "I told her to hang on just a second `cause I felt some pain in my wrist and go up — and it went up my arm. . . . So we set it down. And we kind of stood there for a minute and I kind of shook it off, you know, like you do if you get a — a pain or something. And then we picked it back up. Well, I had the same pain. And it was real constant and it just went all the way up into my elbow, my thumb, and my wrist. And I told her to just set it back down because I wasn't going to lift them anymore."
Dr. Kevin Richter examined the claimant on November 30, 2004:
The patient is a 46-year-old female that presents to the clinic today for Workman's Compensation injury that occurred at 2:00 o'clock today. Patient injured her right arm as she was moving heavy game tables. She has no previous injury to her arm. . . .
NEUROMUSCULAR — Tenderness to palpation along the extensor muscles of the forearm on the right. Range of motion of the elbow and wrist and hand joints are full. There is some pain with extension of the wrist, as well as abduction.
There is no crepitus. No deformity. No erythema or joint effusion. Motor is five over five bilateral upper extremities. Sensation is intact. Pulses intact.
Dr. Richter assessed "Forearm strain/tendonitis." Conservative treatment was planned, including use of a wrist splint when working.
Dr. James. F. Moore saw the claimant on January 17, 2005:
She is a 46 year old white female who was moving heavy foosball tables 11/30/04; had sharp pain in base right thumb. She had a thumb spica splint at one time for osteoarthritis in CMC joint, it has improved since. She did well with that up until this event. She has had some tingling in right MF and RF. She has had a hand held computer for 16 years in her work. She is right handed.
PHYSICAL EXAMINATION: Pain and crepitus in CMC joint base right thumb. . . .
X-RAYS: Arthritic CMC joint right thumb.
Dr. Moore's impression was "Osteoarthritis CMC joint right thumb, R/O carpal tunnel syndrome. . . . Schedule median nerve conduction study across right wrist."
Dr. Michael W. Morse informed Dr. Moore on January 18, 2005, "Thanks very much for allowing me to do nerve conduction velocity testing on Lavada Parker. I am afraid it may have brought up more questions than it answered. She has prolongation of the motor distal latency but not of the sensory action potential in the median nerve. As you know, this can occasionally occur in carpal tunnel syndrome. In addition, she has a 10 m/sec delay across the elbow which implies some compression of the ulnar nerve across the elbow. However, the remainder of the ulnar nerve function is normal."
Dr. Moore examined the claimant and reported on February 25, 2005:
This is a 46-year-old white female who has had pain intermittently in the basilar joint of her right thumb in the past with the use of a thumb spica splint. Her pain became worse after moving some objects in November of 2004. She also has had some tingling in her right middle and ring fingers intermittently for the past several months. She was seen in the office and found to have pain and crepitus in the carpometacarpal joint with evident osteoarthritis involving that joint and also symptoms of carpal tunnel syndrome. Nerve conduction velocity studies showed the presence of a mild right carpal tunnel syndrome. She does have some decreased sensation in the middle finger and radial half of the ring finger.
It was elected to proceed with reconstruction of the carpometacarpal joint for pain relief in the thumb and also decompression of the median nerve at the wrist level. . . .
The orthopedic examination reveals pain and crepitus in the carpometacarpal joint at the base of the right thumb, good range of motion of the joints. There is decreased sensation of the middle finger and radial half of the ring finger with a positive Tinel's sign over the median nerve at the wrist level. Thenar muscle function is intact. X-rays reveal significant osteoarthritis of the carpometacarpal joint at the base of the right thumb with spur formation and decreased joint space.
Dr. Moore's impression was "Osteoarthritis carpometacarpal joint right thumb and also carpal tunnel syndrome right hand. . . . The patient is for ligament reconstruction and tendon interposition arthroplasty of the carpometacarpal joint using the flexor carpi radialis tendon and also decompression of the median nerve at the wrist level."
Dr. Moore performed surgery on February 25, 2005: "1. Ligament reconstruction tendon interposition arthroplasty of the carpal metacarpal joint right thumb using flexor carpi radialis tendon. 2. Carpal tunnel release, right hand." The pre-and post-operative diagnoses were "1. Osteoarthritis of the carpal metacarpal joint base of the right thumb. 2. Carpal tunnel syndrome, right hand." Dr. Moore noted during surgery, "Thenar muscles were reflected off the carpal metacarpal joint capsule and the capsule was incised transversely. There was found to be a small loose body and a very large loose body present. These were removed."
Dr. Moore returned the claimant to restricted work on March 28, 2005. Dr. Moore noted on June 3, 2005, "Right thumb looks good. Smooth range of motion CMC joint. Sensation is good. Full range of motion. DISPOSITION: Return p.r.n."
The claimant began treating with a company physician for left knee complaints in March 2006. The claimant began complaining of back pain in about April 2006. Dr. Carl M. Kendrick noted in June 2006, "X-rays of her back show she has quite a bit of changes and is very reasonable that her problem is coming from her back. Neurologically, she is intact except there is a little sensory change over the L5 dermatome."
The claimant testified that there was an accidental injury in November 2006: "I was moving pallets of anti-freeze and stuff like that. And I was lifting a case of anti-freeze and had turned to set it down, and felt really sharp pain in my back." The claimant signed a Form AR-N, Employee's Notice Of Injury, on November 7, 2006. The claimant reported that she had injured her left hip while lifting a case of anti-freeze. Dr. Cathleen Vandergriff, a company physician, reported on November 7, 2006:
At the request of and authorized by Wal-Mart, we are seeing Ms. Lavada Parker. Ms. Parker states she was picking up a case of anti-freeze and felt a painful stretch in her left hip. She complains of some left hip pain and some left lower back pain. This happened today. She states the cases of anti-freeze were approximately 45-48 pounds. She denies any other signs or symptoms associated with her pain or previous injuries. . . .
On exam, she is very pleasant to speak with and in no acute distress. Her back is straight and normal to inspection and palpation without any bruises, masses, swelling or tenderness. She has full range of motion of her C-spine and T-spine. She notes that she has discomfort with twisting at the hips and she is unable to heel walk due to her pain. . . .
Dr. Vandergriff assessed "Left hip strain" and treated the claimant conservatively. An x-ray of the claimant's hip on November 7, 2006 showed no acute fractures or dislocations.
Dr. Mark W. Powell saw the claimant on March 8, 2007: "Examination of the left hip reveals: tenderness on palpation of the gluteal medias, left SI joint, and low back. She is also tender on palpation inferior to the iliac crest. The greater trochanter and sciatic notch are not tender on palpation. X-RAYS: An anteroposterior x-ray of the pelvis was taken in the clinic today and no abnormalities were identified." Dr. Powell assessed "Left hip strain. . . . I recommended she have an MRI of her pelvis for further evaluation."
Dr. Powell noted on March 29, 2007, "An MRI of the pelvis was performed at Arkansas Open MRI on 03/14/07 and the impression read as follows: 1) No MRI evidence for source of patient's left hip pain. 2) No MRI evidence for avascular necrosis or fracture." Dr. Powell assessed "1) Left gluteus medias strain and 2) Left hip pain. . . . I recommended physical therapy for her left hip to include aquatic therapy. I also recommended she see Dr. Tony Raben for further evaluation and treatment of her low back."
The claimant testified that physical therapy prescribed by Dr. Powell alleviated the symptoms in the claimant's hip, but that she began feeling pain in her low back.
Dr. Cyril A. Raben examined the claimant on April 11, 2007: "Normal gait and station. No misalignment, asymmetry, crepitation, defects, tenderness, masses, effusions, decreased range of motion, instability, atrophy or abnormal strength or tone in the head, neck, spine, ribs, pelvis or upper and lower extremities." Dr. Raben assessed lumbar spine pain and radiculitis.
An MRI of the claimant's lumbar spine was taken on April 11, 2007, with the following findings:
The vertebral bodies are well aligned. The intervertebral disc spaces are well maintained except at the L5-S1 disc space level where there is a posterior disc protrusion. There is mild bulging of the L5-S1 disc space. The prevertebral space is normal. As seen in the axial plane at the L5-S1 disc space level, there is very mild broad-base bulging which does not compromise the neural elements or indent the thecal sac. At the L4-5 disc space level, there is disc protrusion in the left paracentral region that slightly touches the thecal sac and minimally narrows the left neuroforamina. The L3-4, L2-3, and L1-2 disc spaces are normal.
IMPRESSION: This lumbosacral MRI demonstrates:
1. Focal disc protrusion in the left paracentral region that slightly narrows the neuroforamina. I see no definite impingement of the nerve root. Correlation is needed.
2. Very mild bulging of the L5-S1 disc.
Dr. Raben noted on April 23, 2007, "Lavanda (sic) presents back today with her MRI scan results of which show a left-sided herniation at L4-5. Keep in mind her leg pain is on the right and is associated with numbness on the dorsum of her right foot."
Dr. Miles M. Johnson gave the following impression in an EMG Report dated April 24, 2007: "Normal electrodiagnostic study of the right lower extremity and corresponding lumbosacral paraspinal musculature. There is no electrodiagnostic evidence to suggest radiculopathy, plexopathy, generalized peripheral neuropathy, or peripheral entrapment syndrome or injury."
A pre-hearing order was filed on April 26, 2007. The claimant contended that she "was injured on February 28, 2006. Her right knee was injured while setting modulars. The claimant contends that she was injured on November 7, 2006. Her left hip was injured when she twisted while moving cases of antifreeze."
The respondents contended, among other things, that the claimant was "not entitled to the requested benefits for the right arm, elbow and wrist injury ( F412812), because the claimant cannot establish that she sustained accidental injuries resulting in objective findings of injury to her right upper extremity, which arose out of and in the course of her employment with the respondent-employer, on or about November 30, 2004. . . . Respondents contend that the claimant is not entitled to the requested benefits for the left hip/low back injury ( F612506), because the claimant cannot establish that she sustained accidental injuries resulting in objective findings of injury to her left hip/low back, which arose out of and in the course of her employment with the respondent-employer, on or about November 7, 2006."
The parties agreed to litigate the following issues: "1. Compensability of the claimant's right upper extremity, right thumb, left hip, and right knee injuries. 2. Related medical."
Dr. Raben noted on May 8, 2007, "Lavada is having persistence of her pain. She has been to see Dr. Johnson and EMG nerve conduction studies show normal right lower extremity. I explained to her that most likely she has radiculitis associated with an annular tear and have given her the option of further diagnostics to prove this or simply to treat it and progress through with an aggressive conservative treatment, that is non-operative care plan. She would rather treat the problem at this point." Dr. Raben diagnosed lumbar spine disc degeneration and lumbar spine disc herniation.
Dr. James F. Moore corresponded with the respondents' attorney on May 22, 2007:
I first saw Ms. Parker on 01/17/2005 in regards to her right thumb pain. This was her main complaint when she came in and she stated that she had injured her thumb on 11/30/2004 while moving some objects at work. She related that she had obtained a thumb spica splint at one time in the past because of osteoarthritis in that joint.
She states that it had done well up until the time of the injury on 11/30/04. She also described tingling in her right, middle, and ring fingers and related that she had held a hand held computer for twelve years at work. Patient is right handed. Examination on 1/17/2005 revealed pain and crepitus in the carpometacarpal joint at the base of her right thumb. . . . she did have arthritic changes in her carpometacarpal joint at the base of her thumb. Because of her symptoms, and the not uncommon occurrence of carpal tunnel syndrome concomitant with osteoarthritis of the carpometacarpal joint, I did feel that we should obtain nerve conduction studies. These nerve studies did show a mild right carpal tunnel syndrome. It has been documented in our literature that it is not uncommon with osteoarthritis, if you are doing corrective surgery, to also at that time decompress the median nerve at the wrist level, and I discussed this with her. It was our plan to reconstruct the carpometacarpal joint at the base of her right thumb, and also perform a carpal tunnel release at that time. I did discuss with her
the etiology of this problem, and told her that I felt like this was an osteoarthritic joint, it had been osteoarthritic form (sic) some time, and it had been aggravated by her injury of 11/30/2004, but not caused by the injury of 11/30/2004. . . .
She did undergo reconstruction of her arthritic right thumb joint on 02/25/2005. Also at that time, I did do a carpal tunnel release. She did have positive findings of both problems at the time of surgery. She has recovered well, I believe, from both procedures. The last time that I saw her, she had normal sensation in her hand and good motion of her reconstructed thumb joint with occasional pain when she does a great deal of work, but no other significant problems. It seemed to move well and smoothly in terms of the joint.
Therefore, at this time, you have asked me a number of questions. I will try to answer them as best I can. It is my opinion, and has been from the beginning that the primary cause of her painful joint is primary osteoarthritis of the carpometacarpal joint. It is the predominant reason that she had the arthritis, not related to injury, but over 50% related to just wear and tear osteoarthritis.
In regards to the carpal tunnel syndrome and the lateral tennis elbow, those are both issues that can be related to any number of etiologies, certainly, repetitive use is one of the factors that can be a part of carpal tunnel syndrome or lateral tennis elbow. . . . Her carpal tunnel was confirmed objectively by nerve conduction studies by the neurologist. It still would be what we consider a fairly mild change. However, at the time of doing reconstructive surgery, and with decreased sensation, I felt it would be better to go ahead and get both issues resolved at the same time. If she had only those findings of carpal tunnel syndrome, she may not have been operated on at that point in time, but other conservative measures followed, except for the fact that she was going to have surgery and it would be better to take care of both problems at the same time, in my opinion.
It is my opinion, to a reasonable degree of medical certainty, that the patient has no permanent impairment secondary to work related aspect of this problem. I am unable to tell you that the work of holding the hand held computer for years didn't have some bearing on some episodes of tennis elbow and carpal tunnel syndrome, but it certainly had not been documented over a period of time and other conservative measures followed in regards to the carpal tunnel syndrome.
The parties deposed Dr. Cyril A. Raben on August 27, 2007. The respondents' attorney questioned Dr. Raben:
Q. Can you really state with any degree of medical certainty that this November `06 accident is what actually caused this herniated disc in her low back?
A. Again, the herniated disc I don't think is that — is the problem, because, as you recall, the herniated disc was on the opposite side where her pain was, as far as — as far as radiculitis down the leg. So I don't think the herniated disc is the problem. I think the internal disc disruption was markedly exacerbated. So I would say that she has a previously-existing condition with marked exacerbation of that condition, and the only historical fact that I've got, you know, unless you can give me something else. . . .
The claimant's attorney questioned Dr. Raben:
Q. . . . is it your opinion to a reasonable degree of medical certainty that the annular tear and the problems she was having acutely would have been caused by this incident?
A. Again, as asked and answered, counselor. The only thing that I have to go on is her history. And according to her history, that is the acute and proximate cause of her — of her need for medical treating within a reasonable degree of medical certainty.
A hearing was held on September 11, 2007. At that time, the claimant reserved litigation of an alleged right knee injury. The parties amended issue No. 1 to read, "Compensability of the claimant's right upper extremity, right thumb, left hip, and low back." The claimant testified that she had been involved in another recent injury: "I slipped in some water in front of the mild cooler in the stockroom and fell. . . . I hurt the same spot on my back that was hurt before."
An administrative law judge filed an opinion on October 3, 2007. The administrative law judge found, among other things, that the claimant proved she sustained "a right thumb right wrist injury while working for the respondent on November 30, 2004." The administrative law judge found that the claimant proved she sustained "a compensable low back injury while working for the respondent on November 7, 2006." The administrative law judge awarded medical treatment. The respondents appealed to the Full Commission. The Full Commission affirmed and adopted the administrative law judge's decision in an opinion filed February 27, 2008. The Court of Appeals has reversed and remanded for additional findings.
II. ADJUDICATION
A. Compensability
1. Right upper extremity Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(4)(A) (Repl. 2002), defines "compensable injury":
(i) An accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence[.]
A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). "Objective findings" are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i).
The employee's burden of proof shall be a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(i). Preponderance of the evidence means the evidence having greater weight or convincing force. Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947).
In the present matter, the Full Commission finds that the claimant proved she sustained a compensable injury to her right hand, wrist, and thumb. The claimant testified that she felt a sharp pain in her right upper extremity while lifting a large game table at work one day in November 2004. In their brief filed December 7, 2007, the respondents do not dispute that this incident occurred. The respondents argue that there were no objective medical findings establishing a compensable injury. We find that the claimant did establish a compensable injury by medical evidence supported by objective findings. Nerve conduction velocity testing on January 18, 2005 was objective, showing prolongation of the motor distal latency. Dr. Moore performed surgery on February 25, 2005. Dr. Moore performed ligament reconstruction and arthroplasty in the claimant's right thumb joint as well as a carpal tunnel release in the claimant's right hand. Dr. Moore specifically found during surgery "a small loose body and a very large loose body present. These were removed." The Full Commission finds that these objective findings were a result of the November 2004 specific incident, and these objective findings were causally related to the November 2004 specific incident. See Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998).
We recognize Dr. Moore's May 22, 2007 letter wherein he stated that the etiology of the claimant's symptoms were an osteoarthritic joint which "had been aggravated by her injury of 11/30/2004, but not caused by the injury of 11/30/2004." An aggravation is a new injury resulting from an independent incident. Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). Being a new injury with an independent cause, an aggravation must meet the requirements for a compensable injury. Id. Moreover, the Commission has the authority to accept or reject a medical opinion and the authority to determine its probative value. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). Dr. Moore's May 22, 2007 letter cannot be relied upon as evidence that the instant claimant did not prove she sustained a compensable injury.
The Full Commission finds that the claimant proved she sustained an accidental injury causing physical harm to her right hand, wrist, and thumb. The accidental injury arose out of and in the course of employment and required medical services. The injury was caused by a specific incident and was identifiable by time and place of occurrence. The claimant established a compensable injury by medical evidence supported by objective findings. These objective findings included the results of the nerve conduction velocity testing and the loose bodies noted by Dr. Moore during surgery. These objective medical findings were causally related to the accidental injury. We therefore affirm the administrative law judge's finding with regard to the claimant's right upper extremity.
2. Back/Hip
The claimant did not prove she sustained a compensable injury to her back or hip. The record indicates that the claimant began complaining of back pain in about April 2006. A physician reviewed x-rays in June 2006 and noted "quite a bit of changes" coming from the claimant's back. The claimant contended that she sustained an accidental injury in November 2006. The claimant testified that she felt a sharp pain in her back after lifting a case of anti-freeze at work. The claimant reported on a Form AR-N that she had injured her left hip. Dr. Vandergriff assessed "Left hip strain" on November 7, 2006. However, Dr. Vandergriff's physical examination of the claimant's back and hips did not show any objective medical findings. No objective findings were shown in a November 7, 2006 x-ray of the claimant's hip.
Dr. Powell physically examined the claimant's left hip and back on March 8, 2007 and did not report any objective medical findings. Dr. Powell noted on March 29, 2007 that there was no MRI evidence for the source of the claimant's left hip pain, and that there was no evidence for avascular necrosis or fracture. Dr. Raben's physical examination on April 11, 2007 did not show any objective medical findings. Dr. Raben arranged an MRI of the claimant's lumbar spine, which showed a protrusion and mild bulging at L5-S1. The record does not demonstrate that the findings on the MRI were causally related to the alleged lifting incident of November 2006. See Ford, supra. An EMG report on April 24, 2007 was normal and did not show objective medical evidence establishing an injury.
The evidence does not demonstrate that the claimant sustained a lumbar disc herniation or bulging as a result of the alleged anti-freeze lifting incident of November 2006. Nor is there any evidence demonstrating that the claimant sustained "internal disc disruption" or an "annular tear" as a result of the alleged accident. Nor did any of the various physical examinations of the claimant show at any time that she suffered from muscle spasms in her low back or hip. Any assertion that the claimant suffered from muscle spasms as a result of the alleged injury would not be based on a credible, fact-based review of the record before the Commission.
The Full Commission finds that the claimant did not prove she sustained an accidental injury causing physical harm to the claimant's low back or hip. The record does not show that the claimant sustained an injury to her low back or left hip which arose out of and in the course of employment or required medical services. There is no evidence before the Commission demonstrating that the claimant established a compensable injury to her hip or back by medical evidence supported by objective findings. We reverse the administrative law judge's finding that the claimant proved she sustained a compensable low back injury on November 7, 2006.
B. Medical Treatment
The employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a) (Repl. 2002). The claimant must prove by a preponderance of the evidence that she is entitled to requested medical treatment. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999).
In the present matter, the Full Commission found that the claimant proved she sustained a compensable injury to her right upper extremity, namely, her hand, wrist, and thumb. The claimant proved by a preponderance of the evidence that all of the treatment of record provided for her right upper extremity, including surgery by Dr. Moore, was reasonably necessary. The claimant did not prove that any of the treatment provided for her non-compensable back or hip condition was reasonably necessary. The respondents are not liable for any medical treatment, testing, or referrals rendered in connection with the claimant's back or hip complaints. The respondents are not liable for any of the treatment, referrals, or recommendations of Dr. Raben.
Based on our de novo review of the entire record, and pursuant to the remand from the Court of Appeals, the Full Commission finds that the claimant proved by a preponderance of the evidence that she sustained a compensable injury to her right upper extremity. The claimant proved that all of the treatment of record related to her right upper extremity was reasonably necessary. The claimant did not prove that she sustained a compensable injury to her back or hip. The Full Commission therefore affirms the administrative law judge's findings in part, and we reverse in part. The claimant's attorney was awarded her statutory fee in our opinion filed February 27, 2008.
IT IS SO ORDERED.
____________________________ A. WATSON BELL, Chairman
CONCURRING AND DISSENTING OPINION
I must respectfully concur, in part, and dissent, in part, from the majority opinion. Specifically, I concur in the finding that the claimant failed to prove by a preponderance of the evidence that she sustained compensable injury to her back. However, I must dissent from the finding that she proved by a preponderance of the evidence that she sustained a compensable injury to her right upper extremity. Based upon my de novo review of the record, I find that the claimant had failed to meet her burden of proof. The medical evidence demonstrates that the claimant was seen and treated by Dr. Peter Heinzelmann on May 9, 2001, for complaints of right thumb swelling and pain. X-rays taken of the claimant's right thumb showed a slight dorsal subluxation of the first metacarpal. After examination, Dr. Heinzelmann diagnosed the claimant with early osteoarthritis of the CMC joint right thumb and recommended that she use a thumb spica splint and prescribed anti-inflammatory medications. Dr. Heinzelmann added an addendum to his office note stating that the claimant operateed a handheld computer at work and also did a lot of unpacking and handling of store goods. Dr. Heinzelmann noted that the claimant reported that her thumb was definitely more painful during and after her work activities as opposed to when she was away from work for a day or two. In my opinion, a review of the evidence demonstrates that the claimant did not sustain a compensable injury to her right upper extremity. The medical evidence demonstrates that the claimant sought treatment for problems associated with her right thumb as early as May 9, 2001. Dr. Heinzelmann noted that the claimant noticed "slight swelling and pain at the base of her right thumb for about a year" and that her symptoms began spontaneously. He opined that the claimant had early osteoarthritis of the CMS joint.
The claimant sought treatment from Dr. Kevin Richter, the company physician, after the gaming table incident. Dr. Richter noted findings of tenderness "along the extensor muscles of the forearm on the right." He also noted full range of motion of the elbow, wrist and hand joints. He found no crepitus or other deformity, no erythema and no joint effusion. Dr. Richter opined that the claimant had a right forearm strain and/or tendinitis. Dr. Richter failed to note that the claimant had previous injury to her right arm or thumb. He obviously was not told by the claimant that she had previously been diagnosed with osteoarthritis in her right thumb. The claimant next sought treatment from Dr. Moore. Dr. Moore noted that the claimant had obvious osteoarthritis in her carpometacarpal joint. He did not indicate that the claimant's condition was caused by her employment nor did he relate the claimant's carpal tunnel to her employment. In a letter dated May 22, 2007, Dr. Moore noted that the arthritis in the joint was the primary cause of her overall arthritis and was not related to injury, but was "more than 50% related to general wear and tear osteoarthritis associated with her overall health condition."
With respect to the carpal tunnel syndrome condition and the claimant's lateral tennis elbow, Dr. Moore noted that "these could be related to any number of etiologies," noting that repetitive use is onlyone possible factor for this condition. He went on to note that the claimant's previous diagnosis of tennis elbow was based entirely on palpation and examination, with no objective findings to support that diagnosis. Further, although the claimant had positive objective findings of mild carpal tunnel syndrome as found on nerve conduction studies, but for the claimant's osteoarthritis of the right thumb he would not have operated on the carpal tunnel. Moreover, Dr. Moore was unable to state with specificity that holding a hand held computer had any bearing on the claimant's condition. Dr. Moore's opinions are simply not enough to support a conclusion that the claimant's right upper extremity problems are related to a lifting incident on November 30, 2006. The Commission has a duty to translate the evidence on all the issues before it into findings of fact. Weldon v. Pierce Bros. Const. Co., 54 Ark. App. 344, 925 S.W.2d 179 (1996). Moreover, the Commission has the authority to resolve conflicting evidence and this extends to medical testimony. Foxx v. American Transp., 54 Ark. App. 115, 924 S.W.2d 814 (1996). The Commission has the duty of weighing the medical evidence as it does any other evidence, and the resolution of any conflicting medical evidence is a question of fact for the Commission to resolve. Emerson Electric v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001); CDI Contractors McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993); McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). Although the Commission is not bound by medical testimony, it may not arbitrarily disregard any witness's testimony. Reeder v. Rheem Mfg. Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992). However, it is well established that the determination of the credibility and weight to be given a witness's testimony is within the sole province of the Workers' Compensation Commission. Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002). The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief.McClain, supra.
The Commission is never limited to medical evidence in arriving at its decision. Moreover, it is well within the Commission's province to weigh all the medical evidence and determine what is most credible.Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). The Commission is entitled to review the basis for a doctor's opinion in deciding the weight and credibility of the opinion and medical evidence.Id. In addition, the Commission has the authority to accept or reject a medical opinion and determine its medical soundness and probative force. Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999). The Commission's resolution of the medical evidence has the force and effect of a jury verdict. McClain, supra. In my opinion, it requires speculation and conjecture to conclude that the claimant's problems with her right thumb and carpal tunnel were causally related to her employment. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991); Dena Constr. Co., et al v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1979); Arkansas Methodist Hosp. v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).
Accordingly, I find that the claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury to her right thumb and compensable carpal tunnel syndrome. Therefore, for all the reasons set forth herein, I respectfully concur, in part, and dissent, in part, from the majority opinion.
__________________________ KAREN H. McKINNEY, Commissioner
CONCURRING DISSENTING OPINION
I must respectfully concur, in part, and dissent, in part, from the majority opinion. I agree that the claimant has sustained a compensable injury to her right upper extremity. However, as I also find that the claimant has sustained a compensable back injury, I must respectfully dissent on this issue.
The employer takes the employee as it finds him, and employment circumstances that aggravate pre-existing conditions are compensable.Heritage Baptist Temple v. Robison, 82 Ark. App. 460, 120 S.W. 3d 150 (2003); Pearline Williams v. L W Janitorial, Inc. 85 Ark. App. 1, 145 S.W. 3d 383 (2004). An aggravation is a new injury with an independent cause and, therefore, must meet the requirements for a compensable injury. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 s.W.3d 900 (2000); Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998). Arkansas Code Annotated § 11-9-102(4)(A)(i) defines "compensable injury" as:
An accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence.
The workers' compensation statutes provide that "[a] compensable injury must be established by medical evidence supported by objective findings. . . ." Ark. Code Ann. 11-9-102(4)(D) (Supp. 2007). "Objective findings" are defined as "those findings which cannot come under the voluntary control of the patient." Ark. Code Ann. § 11-9-102 (16)(A)(i) (Supp. 2007). While objective medical evidence is necessary to establish the existence and extent of an injury, it is not essential to establish the causal relationship between the injury and the work-related accident.Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522, 524 (1999); Horticare Landscape Management v. McDonald, 80 Ark. App. 45, 89 S.W.3d 375 (2002).
The majority finds that the claimant did not present objective evidence of an aggravation injury. However, the test is not whether the injury caused the condition, but rather the test is whether the injury aggravates, accelerates or combines with the condition. See Nashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); Minor v. Poinsett Lumber Mfg. Co., 235 Ark. 195, 357 S.W.2d 504 (1962);Conway Convalescent Center v. Murphree, 266 Ark. 985, 588 S.W.2d 462 (Ark.App. 1979); St. Vincent Medical Center v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). Here, the evidence presented indicates that the claimant had a pre-existing back condition. But the evidence also shows that there was a specific incident at work on November 7, 2006 wherein the claimant was lifting pallets of anti-freeze, after which she immediately experienced pain in her lower back and hip. The respondent has not disputed the occurrence of the anti-freeze lifting incident, as the claimant immediately reported the incident and was sent to the respondent's doctor for treatment. The claimant has consistently complained of pain in her lower back since the anti-freeze lifting incident. Based on the above evidence, I find that the anti-freeze lifting incident at work aggravated, accelerated or combined with the claimant's pre-existing condition.See Nashville Livestock Commission v. Cox,; Minor v. Poinsett Lumber Mfg. Co.; Conway Convalescent Center v. Murphree; St. Vincent Medical Center v. Brown, Id.
As for objective findings, the claimant presented an MRI report dated April 11, 2007, which showed:
FINDINGS: . . . The vertebral bodies are well aligned. The intervetebral disc spaces are well maintained except at the L5-S1 disc space level where there is a posterior disc protrusion. There is mild bulging of the L5-S1 disc space. The prevertebral space is normal.
As seen in the axial plane at the L5-S1 disc space level, there is very mild broad-base bulging which does not compromise the neural elements or indent the thecal sac. At the L4-5 disc space level, there is a disc protrusion in the left paracentral region that slightly touches the thecal sac and minimally narrows the left neuroforamina. The L3-4, L2-3 and L1-2 disc spaces are normal.
IMPRESSION: This lumbosacral MRI demonstrates:
1. Focal disc protrusion in the left paracentral region that slightly narrows the neuroforamina. I see no definite impingement of the nerve root. Correlation is needed.
2. Very mild bulging of the L5-S1 disc.
Based on the above, I find that the claimant has clearly satisfied the objective finding requirement. She has proved the existence and extent of her injury. See Ark. Code Ann. § 11-9-102 (16)(A)(i); Wal-Mart Stores, Inc. v. VanWagner, Supra.
As for the causation element, the claimant's treating physician, Dr. Cyril Raben testified in deposition:
Q: Considering her history of low back pain as evidenced by the medical record we've gone over today, history of radiculitis and the lower extremity symptoms prior to the 11/7/06 work accident, and considering the lack of any apparent objective findings according to Dr. Vandergriff's report, can you state with any degree of medical certainty — or, rather, would your opinion be based partly on speculation as to what actually caused her herniation and need for treatment?
A: Actually, it can be based on findings of MRI scan, discography, et cetera. And the-and the only thing that can corroborate those findings is history. And again, as-as already mentioned, sir, the fact that a patient has a previously existing condition does not necessarily, in my opinion, rule out the acute and proximate cause as being a historical fact that's related to a progressive-progressively accelerated injury that the patient has.
In other words, again, if a patient has a stress fracture of their tibia and they're running in track and they trip and fall several times over a hurdle, or they keep hitting their leg on the hurdle and eventually end up with a fracture, was it the fact that the guy had a stress fracture or was it the fact that he hit the hurdle that broke his leg? In my opinion, its going to be the hurdle.
So if the only thing that this lady has to tell me is the fact that she picked up a case of stuff, her back pain that she had in the past, granted, got a lot worse and then we-to the point where eventually she had to see other people for her back besides the people that were treating her kneecap, and we went ahead and got further studies and workups including an MRI scan, including CT discography, EMG nerve conduction studies which were found to be normal, and the only thing that I can find was an annular tear or subannular disc herniation, if you give me something else in the history that I can relate that to, if you can give me something else besides the previously existing things that were where she was still able to work and function and do well.
. . .
Q. Can you really state with any degree of medical certainty that this November `06 accident is what actually caused this herniated disc in her low back?
A. Again, the herniated disc I don't think is the-is the problem, because, as you recall, the herniated disc was on the opposite side where her pain was, as far as-as far as the radiculitis down the leg. So I don't think the herniated disc is the problem. I think the internal disc disruption was markedly exacerbated. So I would say that she has a previously existing condition with marked exacerbation of that condition . . .
In remanding this case, Wal Mart Stores v. Parker, CA08-437 (Dec. 10, 2008), the Court of Appeals has cited the following text from Liaromatis v. Baxter County Regional Hospital, 95 Ark. App. 296, 236 S.W.3d 524:
We agree with appellant that objective medical evidence is not essential to establish the causal relationship between the injury where objective medical evidence establishes the injury's existence, and a preponderance of other non-medical evidence establishes a causal relation to a work-related incident. See Wal-Mart Stores v. Van Wagner, 337 Ark. 443, 990 S.W. 2d 522 (1999); Wal-Mart Stores v. Leach, 74 Ark. App. 231, 48 S.W. 3d 540 (2001). However, we disagree with appellant's premise that the medical evidence must merely establish the existence of the injury. The question is not whether there are new objective findings, but whether there is a new compensable injury. It is the injury for which appellant seeks benefits that must be proved with objective medical findings.
Therefore, when appellant sought benefits for an alleged injury sustained on July 26, 1999, it was his burden to prove that the injury was caused by the events on that day. This burden necessarily required that he present objective medical findings establishing an injury suffered on that day in addition to his nonmedical evidence offered to establish a causal relation to the work-related incident. See Ark. Code Ann. § 11-9-102(1997 Supp. 2005).
However, like the present majority opinion, Liaromatis, completely ignores all existing case law relating to aggravation injuries.Liaromatis cites one aggravation case, Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W. 3d 560 (2002) but does not in fact follow it regarding the well-settled principle outlined above, that the employer takes the employee as it finds him, and employment circumstances that aggravate pre-existing conditions are compensable. See Smith-Blair, Inc. v. Jones, Id., Oliver v. Guardsmark, Inc. 68 Ark. App. 24, 3 S.W. 3d 336 (1999). As following Liaromatis, which does not follow precedent, versus following the well-settled case law regarding aggravation injuries, leads to a result contrary to the legislature's intent to pay benefits to "all legitimately injured workers who suffer an injury or disease arising out of and in the course of their employment," See Ark. Code Ann. § 11-9-101, the majority opinion is in error.
For the aforementioned reasons I must respectfully dissent.
______________________________ PHILIP A. HOOD, Commissioner