Opinion
CLAIM NO. E711556
OPINION FILED SEPTEMBER 15, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by the HONORABLE ANGELA DOSS, Attorneys at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
[2] The claimant appeals an administrative law judge's opinion filed February 5, 1998. The administrative law judge found that the claimant failed to prove, by a preponderance of the evidence, that he suffered a compensable injury in the form of carpal tunnel syndrome while employed by the respondent. After conducting a de novo review of the entire record, we reverse the decision of the administrative law judge. We find that the claimant sustained a compensable injury in the form of bilateral carpal tunnel syndrome, for which he is entitled to temporary total disability, attendant medical benefits, and an attorney's fee.The claimant began working for respondent-employer in March, 1993, packing chicken patties into boxes. The claimant testified that he performed this activity on a daily basis for three months. The claimant also made boxes, which required grabbing a box, folding in the flaps, and turning the box over. The claimant estimated that he processed 200 such boxes daily, and that this activity required gripping the hands and turning the wrists. Subsequently, in 1996, the claimant was given the job assignment of "dumping breader:"
You take the box and cut the top off, throw it in the trash, and take the outside layer of the bag off, throw it in the trash, and then you grab the bag, take it in this little room which is about — I counted it. It's nine steps from the table to the well that I dump it in — and then you grab it on the bottom and kind of flip it up over and just kind of pile it up.
The claimant began feeling pain and numbness in his extremities, and the claimant testified that he first thought he was simply suffering from arthritis. According to the record, the claimant presented to a rheumatologist, Dr. Michael Saitta, on May 23, 1997:
Mr. Alliston's a 42 year old white male, self referred for evaluation of arthritis. He relates to me an approximately 10 year history of gradual progressive bony enlargement and stiffness of the small joints of his hands without specific therapy.
This has gradually limited his activities of daily living but he has not noted any inflammatory features. Approximately 1 year ago he noted the onset of right sided arm pain, finger numbness and arm paresthesias and this is still a problem for him. This was especially noticeable on first awakening but does not follow a clear dermatomal pattern. About three weeks ago he was in a motor vehicle accident, hit on the driver's side and had severe total body aching since then, especially focusing on the right shoulder. He has been treating this with alcohol for pain control. He has visited with Dr. Nash and received a pain shot. He has had progressive pain since then, especially in the right arm and feels very stiff with significant gel phenomenon. He denies problems with inflammatory eye disease, subcutaneous nodules or pleural pericardial symptoms. He has no known liver disease or kidney dysfunction.
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MUSCULOSKELETAL: Musculoskeletal exam showed severe nodal osteoarthritic changes in the small joints of the hands greater than the feet with flexor tendon prominence. There was no evidence of acute or chronic synovitis in any of the joints of the hands, wrists, elbows, shoulders, hips, knees, ankles or feet. Axial exam was notable for diminished extension and lateral rotation range of motion of the cervical spine.
Dr. Saitta assessed an "unusual nodal polyarthritis of the small joints of the hands and feet and an unusual neurologic syndrome suggestive of cervical spine involvement." X-rays were taken on May 23, 1997, with three bilateral views of the hands and wrists. This objective testing showed narrowing at the radial carpal joint bilaterally, metacarpals somewhat shortened particularly laterally. Soft tissue swelling was apparent at the PIP joints diffusely on the left and especially second, third, and fourth on the right. The impression was changes consistent with nodal osteoarthritis. Dr. Saitta referred the claimant to an orthopaedic surgeon, Dr. B. Raye Mitchell.
Dr. Mitchell examined the claimant on or about August 7, 1997 and felt that the claimant had bilateral carpal tunnel syndrome; Dr. Mitchell initially treated this condition conservatively. On August 25, 1997, Dr. Saitta noted bilateral wrist swelling. Dr. Saitta reported that Dr. Mitchell would soon perform carpal tunnel release on the claimant, due to the failure of conservative measures. On August 26, 1997, Dr. Mitchell directed the claimant to continue his present work duty, but to avoid rapid and repetitive hand motion, gripping, squeezing, lifting, or carrying.
On October 7, 1997, Dr. Mitchell wrote that the claimant had "quite significant carpal tunnel syndrome, both clinically and on his confirmatory studies." Dr. Mitchell had surgically released the claimant's right carpal tunnel and returned him to light duty. The claimant testified that he was taken off work four weeks before surgery, two weeks after, returning to work September 26, 1997. The claimant said that the carpal tunnel release had "drastically" alleviated his pain symptoms, although he was developing left finger numbness at the time of the February, 1998 hearing.
Dr. Mitchell gave the claimant a full release on November 6, 1997. Dr. Mitchell corresponded with the respondent on November 20, 1997:
I received your letter regarding the case of Dan Alliston. I think in response to your bottom line question which is — Is his carpal tunnel syndrome most likely related to his work situation and history or most likely related to his osteoarthritis? I would have to say the primary contributor would be his work situation contributing greater than 50% of the problem and here are the reasons:
Although there is some association of osteoarthritis with carpal tunnel syndrome, significance of this linkage is not completely understood and while it is possible for osteoarthritis to cause both tendon enlargement and bone hypertrophy and spur formation in the small joints about the wrist, the fact remains that most people with carpal tunnel syndrome do not have significant osteoarthritis and most people with osteoarthritis in the hands and wrists do not develop carpal tunnel syndrome.
As this entire situation relates to his past medial (sic) history, I think the seat belt injury to his right arm was very unlikely a causative factor in the development of carpal tunnel syndrome as his problem seemed to be purely at the wrist and that was also indicated by his EMG studies which again clearly demonstrated carpal tunnel syndrome.
He came in the office with a pain pattern that very clearly depicts the pain experience by suffers (sic) of carpal tunnel syndrome. First report of such symptoms were made to Dr. Saitta in May of 1997. This seemed to be a condition that had developed fairly recently before his seeing me in the office. Again, as to whether the question of his carpal tunnel syndrome was caused primarily by his osteoarthritis or his work situation, he had a talk with me regarding the activities that he does at work and there seems to be quite a bit of lifting, gripping, and turning associated with his usual job situation. These are known to contribute to the formation of carpal tunnel syndrome. I would have to stand by my assertion that I think his disease was primarily caused by his work situation.
The administrative law judge found that the claimant failed to prove he sustained an injury as a result of rapid repetitive motion. The administrative law judge stated that there is "no question" that the claimant's job activities were hand-intensive but not rapid. The administrative law judge thus denied and dismissed the claim. After de novo review, we reverse the decision of the Administrative Law Judge.
The claimant asserts that he sustained a work-related gradual onset of carpal tunnel syndrome; therefore, he is not required, pursuant to Act 796 of 1993, to establish that his work duties required rapid repetitive motion in order to establish compensability of his carpal tunnel injury. See, Kildow v. Baldwin Piano Organ, 333 Ark. ___, ___ S.W.2d ___ (1998). However, the claimant must still satisfy the following requirements of Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) (Repl. 1997):
(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment (see, Ark. Code Ann. § 11-9-102(5)(A)(ii) (Repl. 1997); Ark. Code Ann. § 11-9-102(5)(E)(ii) (Repl. 1997); see also, Ark. Code Ann. § 11-9-401(a)(1) (Repl. 1997);
(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) (Repl. 1997);
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102 (16) (Repl. 1997), establishing the injury (see, Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1997);
(4) proof by a preponderance of the evidence that the injury was the major cause of the disability or need for treatment (see, Ark. Code Ann. § 11-9-102(5)(E)(ii) (Repl. 1997).
If the employee fails to establish, by a preponderance of the evidence, any of these requirements, he fails to establish compensability of the claim. We must then deny compensation.Jerry D. Reed v. Con Agra Frozen Foods, Full Workers' Compensation Commission, opinion filed Feb. 2, 1995 ( E317744).
We find that the preponderance of the evidence shows that the claimant has engaged in hand-intensive activity since going to work for the respondent in March, 1993. As part of his work duties, the claimant packed chicken patties and made boxes at the rate of 200 per day. As the "dumping breader," the claimant was required to pick up bags, cut off the top with a box cutter, and dump. The record shows that this was done in an hand-intensive, repetitive manner. In addition, Dr. Saitta noted bilateral wrist swelling, and Dr. Mitchell reported that EMG studies confirmed his diagnosis of significant carpal tunnel syndrome.
The dissent argues that Act 796 of 1993 requires introduction into evidence of the actual EMG studies, although the treating orthopedic surgeon credibly opined that these studies confirmed his diagnosis of significant carpal tunnel syndrome. If the dissent's argument were adopted, we would essentially be asserting that Dr. Mitchell was either incompetent or trying to mislead the Commission. Moreover, the Arkansas General Assembly has admonished this Commission to strictly construe the statutory provisions of Act 796. Ark. Code Ann. § 11-9-704(c)(3) (Supp. 1997). In this regard, the legislature expressly instructed the Commission not to liberalize, broaden, or narrow the workers' compensation statutes. Ark. Code Ann. § 11-9-1001 (Supp. 1997). There is no indication in the record that such studies could be interpreted by or have any significance to a layman. To find that EMG studies must be introduced in order for a claimant to establish medical evidence, supported by objective findings, would impermissibly broaden the scope of Ark. Code Ann. § 11-9-102(16) (Supp. 1997). In addition, such a finding would ultimately require the introduction of every x-ray and diagnostic test performed. This, we decline to do.
We find that Dr. Mitchell's diagnosis and opinion regarding causation is entitled to significant weight by this Commission. Dr. Mitchell, an orthopaedic surgeon, credibly opined that the claimant's work was the primary cause of his bilateral carpal tunnel condition. Dr. Mitchell attempted conservative measures, which failed. Right carpal tunnel release was then performed, the claimant's right side was pronounced healed, and the claimant went back to work.
We find that the claimant proved, by a preponderance of the credible evidence, that he sustained an injury causing physical harm to the body, which arose out of and in the course of his employment with the respondent. We find that the claimant established his injury through objective medical findings, and that the compensable injury was the major cause of his disability and need for treatment. We thus find that the respondents are liable for reasonable and necessary medical treatment for the claimant's bilateral carpal tunnel syndrome.
An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages. Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1991). Ark. Code Ann. § 11-9-102(13) defines "healing period" as the period necessary for the healing of an injury resulting from an accident. The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable, and when nothing further will improve that condition, the healing period has ended. The claimant is no longer entitled to receive temporary total disability compensation, regardless of his physical capabilities. Moreover, persistent pain does not suffice, in itself, to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). In the within matter, the claimant testified that he was off work a total of six weeks for his condition, returning to work on September 26, 1997. We find that the claimant is entitled to temporary total disability benefits from August 15, 1997 through September 26, 1997.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant proved, by a preponderance of the evidence, that he sustained a compensable injury in the form of carpal tunnel syndrome while employed by the respondent. We find that the respondent is liable for reasonable and necessary medical treatment related to this condition, and we find that the claimant is entitled to temporary disability benefits from the period beginning August 15, 1997 through September 26, 1997. We reverse the administrative law judge's order denying and dismissing the claim.
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 (Repl. 1996).
IT IS SO ORDERED.
DISSENTING OPINION
[22] I must respectfully dissent from the majority opinion finding that claimant sustained compensable carpal tunnel syndrome while employed by respondent. Based upon my de novo review of the entire record, I find that claimant has failed to prove by a preponderance of the evidence that he sustained carpal tunnel syndrome arising out of and in the course of his employment or that his job duties were the major cause of claimant's disability or need for treatment. When claimant first presented to Dr. Michael Saitta on May 23, 1997, claimant related a ten year history of a gradual progression of a bony enlargement and stiffness in the small joints of his hands with the onset of right sided arm pain, finger numbness and arm paresthesia during the previous year. When claimant presented to Dr. Ray Mitchell, he reported a three year history of bilateral, intermittent arm numbness. Claimant further provided a history of his hand pain intensifying following a motor vehicle accident. Although claimant was diagnosed with carpal tunnel syndrome for which he eventually underwent carpal tunnel release surgery, the pain elicited upon clinical examination to detect carpal tunnel syndrome was not the type of pain for which claimant was seeking treatment. The evidence clearly reveals that claimant was seeking treatment for his arthritic type pain. It is undisputed that claimant's arthritic pain has been chronic in nature and present for many years. There is no evidence in the record linking claimant's degenerative arthritis to his employment. Claimant advised his physician of ongoing symptoms which have been present for the past ten years. The evidence reflects that claimant was hired by respondent in March of 1993; consequently, it is impossible for claimant's symptoms which pre-existed this hire date to have arisen out of and in the course of his employment as they pre-dated his hire date.Finally, and most importantly, I must respectfully dissent from the majority opinion finding that claimant has met all the necessary elements to prove the compensability of his claim. In my opinion, a thorough review of the medical records reveals that claimant has failed to prove the existence of carpal tunnel syndrome by objective medical findings. Admittedly, there are objective medical findings in the record documenting claimant's arthritic condition; however, the record is void of any objective medical findings documenting carpal tunnel syndrome. Moreover, despite the fact that such tests were ordered by Dr. Mitchell in August of 1997, the test results were not introduced into evidence. Nor were the operative reports which might possibly objectively confirm the diagnosis of carpal tunnel syndrome introduced. In my opinion the statutory requirement for objective medical findings requires that such findings be introduced into evidence.
While Dr. Mitchell commented in his medical reports that the EMG studies confirm his diagnosis of carpal tunnel syndrome, as I interpret the Act it is claimant's burden to prove by a preponderance of the evidence, medical evidence supported by objective findings establishing the injury. To hold a party to this burden is not a liberalization of the Act but rather strict construction. Strictly construing the Act, I find that claimant has failed to carry his burden. Accordingly, for those reasons set forth herein, I must respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner