Opinion
CLAIM NO. E711966
OPINION FILED NOVEMBER 5, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ERNEST BROWN, Attorney at Law, Pine Bluff, Arkansas.
Respondents represented by the HONORABLE WENDY S. WOOD, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Affirmed.
OPINION AND ORDER
[2] The respondents appeal to the Full Workers' Compensation Commission an administrative law judge's opinion filed February 3, 1999. The administrative law judge found that the claimant sustained an injury arising out of and in the course of her employment, and that the respondents shall pay all reasonable hospital and medical expenses arising out of the injury. After de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge.The claimant, age 41, went to work bagging groceries for the respondent-employer in September, 1979. The claimant testified that she worked about 30 hours weekly bringing in "bascarts," loading paper bags into check stands, and mopping and taking out garbage at night. The claimant testified that she was moved to the delicatessen in about 1981, where she sliced meat, made party trays, unloaded trucks carrying icing, hams, and shortening, placed foods in the freezer, and carried big, bulky boxes up a ladder. The claimant estimated that she worked part-time for about nine years. The claimant worked in the Kroger Deli until about 1989-90, and then went to the front end of the store as a checker. The claimant testified that her responsibilities in that area were hand intensive, which included scanning groceries, getting paper bags and bagging groceries, mopping, and cleaning at night.
The claimant began experiencing problems with her hands in about 1994. She testified, "I was having a lot of pain, and lifting would cause me a lot of pain, if I lifted something heavy, or any kind of hyper-extending, you know, like going back and forth with my wrist or anything like that." The claimant began treating conservatively with an orthopedist, Dr. Jay Lipke, on August 19, 1997. Dr. Lipke noted that the claimant had worked at Kroger for 18 years and was complaining of bilateral hand and wrist pain. Dr. Lipke billed Kroger for his conservative treatment, and the respondents began paying medical benefits. Dr. Lipke wrote in September 16, 1997 correspondence, "I feel she has definite evidence of carpal tunnel syndrome. . . . I'm going to make arrangements for the outpatient EMG/nerve conduction studies to confirm the suspected diagnosis of carpal tunnel syndrome. I feel she'll need surgical release thereafter." A nerve conduction study was performed on September 22, 1997, revealing no abnormalities. The interpreting physician could find no evidence of entrapment, myopathy, neuropathy, or denervation. Dr. Lipke corresponded on September 30, 1997:
Sallie Thrower returns for follow-up of her work-related carpal tunnel syndrome. She still complains of pain and numbness over the median nerve distribution, as noted previously. She demonstrates a positive Phalen's test. The recent EMGs/nerve conduction studies were negative for carpal tunnel syndrome. (Approximately 15 to 20 percent of patients with carpal tunnel syndrome will demonstrate normal studies.) Clinically, she has obvious carpal tunnel syndrome, and conservative treatment including injection into the carpal tunnel have been tried without success. I feel she would benefit from carpal tunnel release. I will make arrangements for the planned surgery pending approval by her worker's compensation carrier.
Dr. Lipke took the claimant off work from September 30, 1997 through October 6, 1997, and again from November 4-11, 1997, and the respondents paid temporary total disability compensation for these periods. Dr. Lipke wrote that he was treating the claimant for "bilateral work-related carpal tunnel syndrome." The carrier sought a second opinion from Dr. Michael Moore, a hand surgeon. Dr. Moore saw the claimant on October 20, 1997, and wrote the following:
It is my opinion Ms. Thrower's clinical history and physical examination are consistent with bilateral arm pain. Her clinical history is suggestive of a possible carpal tunnel syndrome; however, her objective studies, including a nerve conduction and EMG study, are normal. Therefore, I do not feel that she is a candidate for surgical treatment. In addition, Ms. Thrower did not gain significant relief of her symptoms following wrist injections. If Ms. Thrower had
bilateral carpal tunnel syndrome, I would expect her to gain some relief of her symptoms following the injections. It is my opinion she would not be a surgical candidate unless there was an objective study which would definitively document a carpal tunnel syndrome. Unfortunately, she has a difficult problem; however her physical examination and objective studies do not suggest any evidence of a compression neuropathy or tendonitis within the hand or wrist. . . . At this time, Ms. Thrower's treatment options would include a job transfer, or finding work which is less stressful to her hands.
In January-February, 1998, the claimant returned to Dr. Lipke "for follow-up of her work-related bilateral carpal tunnel syndrome." Dr. Lipke took the claimant off work for two weeks on January 6, 1998, for which time the respondents paid temporary total disability. The claimant returned to Dr. Lipke in March, 1998, and he continued conservative treatment. Dr. Reginald Rutherford examined the claimant in April, 1998, and stated, "Ms. Thrower's complaint of bilateral arm pain is without objective counterpart on clinical examination." Dr. Rutherford arranged further electrodiagnostic testing, which he interpreted in the following manner:
The study thus demonstrates mild abnormality of the median nerve localized to the wrists, both upper extremities. The changes as identified are compatible with a clinical diagnosis of carpal tunnel syndrome. Changes as identified are mild in degree and thus would favor continued conservative management.
The respondent-employer terminated the claimant's employment in May, 1998, in a dispute related to "missing phone cards." The claimant was working full duty at the time of her termination. The claimant testified that she still experienced daily, stabbing pain, and that there was no strength in her extremities. Dr. Rutherford followed up with the claimant on July 31, 1998:
She has not responded to conservative management referable to her documented carpal tunnel syndrome. She has lost her job because of this. The degree of abnormality on nerve conduction study is relatively mild, but there is no clear-cut correlation between degree of abnormality on nerve conduction study and clinical symptoms. In my experience this is most likely to be the case if ischemia rather than compression is the predominant mechanism operant. Based upon the magnitude of complaint as expressed by Ms. Thrower and her failure to achieve adequate relief with conservative management, it is recommended that she be seen by Dr. Michael Moore for consideration of surgical intervention.
The claimant was evaluated by Dr. G. Thomas Frazier on August 25, 1998. Dr. Frazier, a hand and upper extremity surgeon associated with Dr. Moore, stated that the claimant's history was compatible with carpal tunnel syndrome, but that her physical examination was equivocal for same. After reviewing Dr. Rutherford's records, Dr. Frazier opined that the claimant "does indeed have electrodiagnostic evidence of carpal tunnel syndrome," but "I am unable, based on the preponderance of medical evidence available, to directly relate her carpal tunnel syndrome to work-related activities." Dr. Frazier opined that the claimant should consider carpal tunnel release, but found it likely that the workers' compensation carrier would not accept liability for the surgical bill.
Ms. Thrower filed a workers' compensation claim, contending that during the course of her 19-year employment with Kroger, she suffered a compensable injury to her wrists, resulting in bilateral carpal tunnel syndrome. The claimant contended that she was entitled to surgery, same being reasonable and necessary, and that she was entitled to prospective temporary total disability and "rehabilitation" benefits. (Issues pertaining to permanency and rehabilitation are now reserved). She testified that all of her medical treatment for the alleged injury has been paid, but that she has not been reimbursed for mileage. The respondents now controverted the claim in its entirety. The respondents contended that there is no causal relationship between the former employee's injury and her 19 years of work for them, and that there is no "major cause" evidence to support the claim.
Counsel deposed Dr. Frazier on January 4, 1999. Dr. Frazier opined at deposition that it was up to the claimant as to whether or not to proceed with a carpal tunnel release, that she should consider such surgery only if her symptoms warranted. If the claimant's electrodiagnostic findings were mild, he would recommend non-operative treatment. Dr. Frazier also opined that "we cannot with scientific certainty say that carpal tunnel syndrome is caused by work-related activity. It is our opinion that work-related activity can certainly exacerbate or make carpal tunnel worse, but whether it is the predominant cause, greater than 50 percent of the cause, I think, undetermined."
After a hearing before the Commission, the administrative law judge noted that nearly all of the treating physicians diagnosed the claimant as having carpal tunnel syndrome (and of course EMG demonstrated a mild abnormality of the median nerve to the wrists bilaterally). The administrative law judge gleaned from the record that the claimant was "quick, efficient, and a good worker." As for Dr. Frazier's theories regarding lack of causation, the administrative law judge recognized that Dr. Frazier has seen the claimant on only one occasion, but that even Dr. Frazier acknowledged there was objective medical evidence of carpal tunnel syndrome. Dr. Frazier opined that there was no "scientific evidence" that "repetitive activities" cause carpal tunnel syndrome. Nevertheless, the administrative law judge citedKildow v. Baldwin Piano Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). In Kildow, the Arkansas Supreme Court recognized that in Act 796 of 1993, the General Assembly specifically categorized carpal tunnel syndrome as a compensable injury falling within the definition of "rapid repetitive motion." The administrative law judge found that the claimant has proven that she sustained a compensable injury in the form of bilateral carpal tunnel syndrome, which injury arose out of and in the course of her employment with the respondents. Respondents appeal to the Full Commission.
The claimant contends that she sustained a work-related gradual onset of carpal tunnel syndrome. Therefore, the claimant is thus not required, pursuant to Act 796 of 1993, to establish that her work duties involved rapid repetitive motion in order to establish the compensability of her alleged injury. Kildow v. Baldwin Piano Organ, supra. However, the claimant must satisfy the following statutory requirements:
(1) proof by a preponderance of the evidence of an injury arising out of and in the course of her employment (see, Ark. Code Ann. § 11-9-102(5)(A)(ii) (Supp. 1997); Ark. Code Ann. § 11-9-102(5)(E)(ii) (Supp. 1997); see also, Ark. Code Ann. § 11-9-401(a)(1) (Repl. 1996);
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body (see, Ark. Code Ann. § 11-9-102(5)(A)(ii) (Supp. 1997);
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury (see, Ark. Code Ann. § 11-9-102(5)(D) (Supp. 1997);
(4) proof by a preponderance of the evidence that the injury was the major cause of the disability or need for medical treatment (see, Ark. Code Ann. § 11-9-102(5)(E)(ii) (Supp. 1997).
If the claimant fails to establish any of these requirements, she fails to establish compensability of the claim. We must then deny compensation. Jerry D. Reed v. Con Agra Frozen Foods, Full Workers' Compensation Commission, Feb. 2, 1995 ( E317744). In the instant matter, we find that the claimant has established each statutory requirement to establish a compensable bilateral carpal tunnel syndrome injury. As regards the objective findings requirements, in March, 1998, Dr. Reginald Rutherford reported a "mild abnormality of the median nerve localized to the wrists" bilaterally indicated by electrodiagnostic testing. There can be no dispute that this result of electrodiagnostic testing satisfies the requirement of Act 796 that the claimant establish her bilateral carpal tunnel syndrome through medical evidence, supported by objective findings, and that the condition has caused internal physical harm to the body. We also find that the claimant proved, by a preponderance of the evidence, that her carpal tunnel injury is the major cause of her disability and need for treatment. Dr. Rutherford vaguely referred to a possible ischemia, that is, blood deficiency, as contributing to the claimant's symptoms, but we can find no objective clinical or diagnostic findings to support Dr. Rutherford's speculation in this regard. Speculation and conjecture can never be substituted for credible evidence. Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 151 1980).
We also find that the claimant proved by a preponderance of the evidence that her bilateral carpal tunnel syndrome arose out of her employment. In this regard, the evidence indicates that the claimant began experiencing her bilateral wrist difficulties in 1994 after performing hand-intensive work for the respondents since 1979. Dr. Jay Lipke, an orthopedic surgeon, began treating the claimant in 1997 for what he related as work-related carpal tunnel syndrome. Dr. Lipke has never changed his opinion in this regard, and we note that there is no evidence of record indicating any risk factors or activities for the claimant, other than her hand-intensive work duties, as possible etiologies for bilateral carpal tunnel syndrome. Although the respondents assert that the facts in the present case are analogous to the facts in Arnold v. Tyson Foods, 64 Ark. App. 245, ___ S.W.2d ___ (1998), we point out that the claimant in Arnold had outside activities of volleyball, racquetball, and walleyball and did not report her carpal tunnel syndrome as work related.
In reaching our decision, we have considered Dr. Frazier's deposition opinion indicating that he feels that there are insufficient medical studies to ever causally relate an onset of carpal tunnel syndrome to repetitive work duties. Obviously, if Dr. Frazier feels that there are insufficient medical studies toever causally relate an onset of carpal tunnel syndrome to repetitive work duties, then Dr. Frazier was constrained to also conclude that this employee's carpal tunnel syndrome was not directly related to her work activities. However, we point out that the Arkansas General Assembly has specifically categorized carpal tunnel as a rapid repetitive motion injury in Act 796 of 1993 for purposes of the Arkansas Workers' Compensation Law. See, Ark. Code Ann. § 11-9-102(4)(A)(ii)(a) (Supp. 1999); see also,Kildow v. Baldwin Piano Organ, 333 Ark. App. 335, 969 S.W.2d 1990 (1998). The present claim is governed by the amendments of Act 796 of 1993. Consequently, we are constrained to accord Dr. Frazier's opinion no weight.
Nor do we find any merit in the dissent's argument that the claimant's gradual onset carpal tunnel syndrome was less likely to be work related based on the fact that the claimant did not initially identify her symptoms as "work related" to her supervisor or to Dr. Lipke in August of 1997. The error in the dissent's logic is, of course, that the dissent erroneously assumes that an individual experiencing pain in the wrists and hands radiating up the arms, and numbness and tingling in her fingers (particularly at night) has some reason to know, prior to seeking the advise of a physician, that: (1) this diverse collection of symptoms is in fact caused by carpal tunnel syndrome in the wrist, that (2) carpal tunnel syndrome is an injury associated with rapid repetitive motion (among other possible etiologies), and that (3) the claimant's work duties are more likely than not the cause of her injury and symptoms. These are determinations for the medical profession and the Commission, not the injured worker, to make. In the present case, as the dissent notes, the claimant first presented to Dr. Lipke on August 19, 1997, and his clinical testing indicated carpal tunnel syndrome. By September 30, Dr. Lipke diagnosed work related carpal tunnel syndrome. In light of the gradual onset nature of the type of injury involved, the diverse nature of the symptoms associated with carpal tunnel syndrome that can and did become more involved at night, the claimant's lack of medical training, and the lack of any clinical diagnostic testing to confirm a diagnosis prior to the claimant presenting to Dr. Lipke for testing and diagnosis, we simply fail to see any significance in the fact that the claimant did not initially report her problems as work related to her employer or to Dr. Lipke. Under these circumstances, the claimant was simply not in a position to assess the diagnosis of the injury involved, or the etiology of her gradual onset injury, prior to seeking a medical consultation.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant proved that she sustained an injury in the form of bilateral carpal tunnel syndrome, which arose out of and in the course of the claimant's employment with the respondents. We find that the claimant has proven entitlement to reasonable and necessary medical treatment from her original treating physician, Dr. Lipke, and we find that the claimant is entitled to temporary total disability compensation for that period that she is within her healing period and totally incapacitated to earn wages. We thus affirm the opinion of the administrative law judge.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).
For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715(b) (Repl. 1996).
IT IS SO ORDERED.
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PAT WEST HUMPHREY, Commissioner
DISSENTING OPINION
[25] I respectfully dissent from the majority's opinion finding that the claimant proved by a preponderance of the evidence that she sustained a work-related gradual onset in the form of carpal tunnel syndrome. In my opinion, the claimant has failed to satisfy her burden of proof.The evidence indicates that the claimant failed to report her injuries as work-related. The claimant testified that she approached Mr. Bailey, and asked for time off from work due to a work injury. She testified she did not fill out any workers' compensation forms because Mr. Bailey told her he did not know where they were located. However, Mr. Bailey testified that in August of 1997 the claimant approached him asking for time off from work. She never reported wrist pain to him and never reported that the pain was work-related. Further, she never reported that she was going or had been going to the doctor for wrist pain. It was not until several months later that Mr. Bailey understood that the claimant had sustained a work-related injury and this was only upon overhearing some baggers and checkers talking about the claimant's problems. Mr. Bailey testified that the claimant never advised him of any problems with her wrists.
The testimony of Mr. Woodruff corroborates Mr. Bailey's testimony. Mr. Woodruff testified that in September of 1997 the claimant approached him requesting payment for the week she was off work in August of 1997. Mr. Woodruff's response to the claimant was "What kind of money are you talking about? What kind of pay? If you asked to be off, we don't owe you for that." He stated that the claimant responded by telling him her wrists were hurting. He asked the claimant if it was a work-related injury and she answered in the affirmative. Mr. Woodruff testified that this was his first notification that the claimant was having a problem with her wrists and he advised her to fill out a First Report of Injury form.
It is also of note that the claimant failed to report a work-related injury to Dr. Lipke. Dr. Lipke's August 19, 1997, report, fails to show that it was a work-related problem.
The majority finds that it is not significant that the claimant failed to report her problems as work-related to her doctor and her supervisor. I disagree. The claimant's lack of medical training has absolutely nothing to do with her reporting an injury to her supervisor. The evidence shows that the claimant failed to report her wrist problems until September of 1997 when she asked to be paid for time she took off in August of 1997. It seems logical that if the claimant was taking off because her wrists were hurting, she would have at least mentioned this to Mr. Bailey when she asked to take off. Further, Mr. Bailey found out about the claimant's wrists problems only after overhearing other employees discussing her problems. Obviously everyone knew about her problems but the one person the claimant was required to report them to.
I would also note that the claimant's credibility is suspect. She was fired by the respondent employer for stealing phone cards. It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). Furthermore, the Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). In my opinion, the claimant's testimony is entitled to little weight.
Therefore, for all the reasons set forth herein, I respectfully dissent from the majority's opinion.
__________________________ MIKE WILSON, Commissioner