Opinion
CLAIM NO. E610400
OPINION FILED OCTOBER 6, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by FREDERICK S. SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondent represented by TOM HARPER, JR., Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Reversed in part and affirmed in part.
OPINION AND ORDER
[2] Claimant appeals and respondent cross-appeals from a decision of the Administrative Law Judge filed November 7, 1997. We reverse the decision of the Administrative Law Judge finding that claimant's contention requesting further medical evaluation regarding continuing treatment in her right upper extremity is supported by preponderance of the evidence. Based upon our de novo review of the entire record, we find that claimant has failed to prove the compensability of her right upper extremity injury. We affirm the finding of the Administrative Law Judge that claimant has failed to prove by a preponderance of the evidence that she was wrongfully discharged and is thus entitled to benefits pursuant to Ark. Code Ann. § 11-9-505 for respondents failure to return her to work. The Administrative Law Judge did not make the pre-hearing order an exhibit at the hearing, however, after reviewing the contention set forth by the parties at the beginning of the hearing, it is clear that the compensability of claimant's right upper extremity complaints was in issue.At the hearing held on October 1, 1997, claimant contended that she sustained bilateral carpal tunnel syndrome for which she is entitled to continuing medical treatment of her right hand. Claimant also contended that pursuant to Ark. Code Ann. § 11-9-505 she is entitled to additional benefits in that respondent failed to return her to work. Finally, claimant contended that the scheduled injury provision and the objective medical findings requirement of Act 796 are in violation of the equal protection and due process clauses of the Arkansas United States Constitutions. Respondent contended that claimant's right upper extremity injury is not related to her work and that claimant was terminated for cause, specifically excessive absenteeism, and is therefore not entitled to any benefits pursuant to Ark. Code Ann. § 11-9-505.
The claimant's injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Ark. Code Ann. § 11-9-102 as amended by Act 796 of 1993. We have held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Act 796. Jerry D. Reed v. ConAgra Frozen Foods, F.C. Opinion filed Feb. 2, 1995 ( E317744). The claimant in the present case does not contend that she sustained an injury that is identifiable by time and place of occurrence. Instead, the claimant asserts that she sustained a work related gradual onset of carpal tunnel syndrome (or perhaps tendinitis). In order to establish the compensability of her alleged tendinitis condition claimant must prove by a preponderance of the evidence that she sustained an injury causing internal or external harm to the body which arose out of and in the course of her employment and which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(5)(A)(ii) and § 11-9-102(5)(E)(ii) (Supp. 1997). Claimant must also prove by a preponderance of the evidence that the injury was caused by rapid repetitive motion, and that the injury was the major cause of the disability or need for treatment. See Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) and § 11-9-102(5)(E)(ii) (Supp. 1997). Finally, Ark. Code Ann. § 11-9-102(5)(D) requires claimant to establish her alleged injury "by medical evidence supported by 'objective findings' as defined in § 11-9-102(16)." Ark. Code Ann. § 11-9-102(5)(D) (Supp. 1997). See also Jean Carter v. Aid Temporary Services, Inc., F.C. Opinion filed May 12, 1995 ( E404813).
To the extend that claimant asserts that she sustained a work-related gradual onset injury in the form of carpal tunnel syndrome that occurred after July 1, 1993, claimant is not required under the provisions of Act 796 of 1993, to establish that her work duties involved rapid repetitive motion as an element of her claim. See Kildow v. Baldwin Piano Organ, 333 Ark. 335, ___ S.W.2d ___ (1998). However, claimant must still establish that her carpal tunnel syndrome injury arose out of and in the course of her employment, that a work-related injury is the major cause of claimant's disability or need for treatment, and claimant must establish the compensable injury with objective medical findings. Id.
If an employee fails to establish by a preponderance of the credible evidence any of these requirements for establishing the compensability of the alleged injury, he fails to establish the compensability of the claim and the claim must be denied. Reed v. ConAgra, supra.
At the hearing, claimant described her work duties as follows:
It required you to, there was nine stations and seven of the stations required you to release the trays that the product was on with your left hand. And that's, you had to release them with so much pressure and push them down the line to the next person. And then you had to solvent seal more smaller parts. And they required you to do it at a certain time, you know, certain speed and wanted you to get out a certain amount of product.
In addition, claimant presented the testimony of Brenda Daily who when asked if the work was "rapid, repetitive, continuous type work" responded "yea." Ms. Daily described the work as follows "Pretty much what Janette said. You put these little parts on these tubes and glue them to this set and push them down and push this tray around." We cannot tell from reviewing the record whether claimant's work was performed in a swift or quick manner. From the evidence presented it is impossible to tell whether claimant's work involved continuously repetitive motion, or whether it allowed for numerous periods of delay. Without having to reach a conclusion regarding whether claimant's work involved rapid repetitive motion, we find that claimant has failed to prove the compensability of her right upper extremity complaints. The evidence reveals that claimant underwent two nerve conduction velocity studies on her right wrist. The first study was performed by Dr. Bruce Robbins on July 26, 1995. Dr. Robbins concluded that claimant's nerve conduction velocity results were within the normal range. Admittedly, Dr. Robbins noted that the results were within the upper limits of normal; however, the results were nonetheless normal. Subsequently, claimant underwent a NCV for her left wrist which did prove abnormal for carpal tunnel syndrome. Based upon these abnormal results, claimant's left arm complaints were accepted as compensable and claimant underwent carpal tunnel release surgery on her left wrist. After claimant made new complaints of right wrist pain on November 14, 1996, Dr. Knox ordered nerve conduction studies on claimant's right wrist. Again, these results proved normal. Accordingly, we cannot find that claimant has proven that she sustained carpal tunnel syndrome of her right wrist as all objective diagnostic test results have borne out normal results on claimant's right wrist. Admittedly, Dr. Knox did note "a little puffiness of the index and middle fingers at the PIP and MP joints," however, we are not persuaded that this is an objective medical finding of an occupationally related condition of claimant's right upper extremity. By the time the "puffiness" was noted claimant had been on a leave of absence from respondent for over a month. Consequently, we cannot find that claimant's work is any way responsible for the "puffiness" noted.
Finally, we find that claimant has failed to meet the major cause requirement for a gradual onset injury. In his February 28, 1997, correspondence to Trecia Coggin, a registered nurse with respondent, Dr. Knox stated:
I have noted the additional history that you have forwarded, and am appreciative. I whole heartedly agree that being off work, it would be hard to give Janette work comp on her right wrist.
In the second paragraph of that same correspondence, Dr. Knox addressed claimant's left wrist difficulties which he related to claimant's "occupational duties" and concluded that her left wrist difficulties were a "continuation" of claimant's original workers' compensation injury. In light of Dr. Knox's correspondence, we find that the claimant has failed to prove by a preponderance of the credible evidence that her work duties were the major cause of her disability or need for treatment with regard to claimant's right wrist. Accordingly, we find that claimant has failed to prove the compensability of her right wrist. Therefore, we find that the decision of the Administrative Law Judge awarding medical benefits for claimant's right wrist must be reversed.
Claimant contends that she is entitled to benefits pursuant to Ark. Code Ann. § 11-9-505(a)(1) which provides:
Any employer who without reasonable cause refused to return an employee who is injured in the course of employment to work, where suitable employment is available within the employee's physical and mental limitations, upon order of the Commission, and in addition to other benefits, shall be liable to pay the employee the difference between benefits received and the average weekly wage lost during the period of such refusal, or for a period not exceeding one year.
In order to establish her claim for additional benefits under this section, claimant has the burden of proving that the following four requirements are met:
(1) That she sustained a compensable injury;
(2) That suitable employment within the claimant's physical and mental limitations was available with her employer;
(3) That the employer refused to return her to work;
(4) That the employer's refusal to return the claimant to work was without reasonable cause.
See Edward Torrey v. City of Ft. Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996). In Torrey, supra the Courts stated that:
At a minimum Ark. Code Ann. § 11-9-505(a) requires that when an employee who has suffered a compensable injury attempts to re-enter the work force the employer must attempt to facilitate the re-entrance into the work force by offering additional training to the employee, if needed, and reclassification of positions, if necessary.
The record reveals that claimant was terminated from her employment after failing to supply respondent with the necessary medical documentation to excuse her absences. Claimant testified that she was fired after being off work sick with the flu. However she did admit she was unable to provide her employer with the requested documentation from her physicians. Claimant admitted that Dr. Preston held claimant off work for three days and Dr. Martin only held claimant off work for one day. This left several days which were not accounted for. Claimant further admitted that prior to being fired, she had been given several warnings regarding her excessive absenteeism. Despite claimant's testimony that Dr. Preston held her off work for three days, there was no evidence in the record to this affect other than claimant's testimony. In the Baxter Healthcare Corporation application for a family leave of absence admitted into evidence at the request of the Administrative Law Judge after the hearing, the reason for leave is set forth as follows:
The flu, fever, vomiting, headaches, sinus, problems, back aches, sore throat, bronchitis, viral infections 2-18-97 / 2-20-97 Dr. Preston 2-21-97 — 2-24-97 Dr. Martin.
The medical certification statement completed by Dr. Martin reveals that claimant's condition was acute and that her condition was expected to end on February 25, 1997. Likewise, the medical certification statement completed by Dr. Preston indicated that claimant's condition was not serious, that her condition began on February 18, and was expected to end on February 19. The certificate to return to school or work completed by Dr. Preston's office indicated that claimant was only to be held off work until February 20, 1997. Thus, although claimant was counseled regarding her excessive absenteeism, and was provided additional time within which to present respondent with documentation regarding her excessive absenteeism, we find that claimant has failed to prove that respondent unreasonably refused to return claimant to work within her physical limitations. In our opinion, respondent's refusal to return claimant to work is not related to claimant's compensable injury. The evidence reveals that claimant missed an excessive amount of work unrelated to her compensable injury and she was unable to provide respondent with the necessary documentation for the absences to be deemed excused. Therefore, we find that claimant has failed to prove entitlement to the benefits requested. Accordingly, we affirm this aspect of the Administrative Law Judge's opinion.
IT IS SO ORDERED.
DISSENTING OPINION
[19] I must respectfully dissent from the majority opinion finding that claimant failed to prove that she sustained a compensable injury to her right upper extremity, and that she failed to demonstrate entitlement to benefits pursuant to Ark. Code Ann. § 11-9-505 (a) (1).The majority concludes that an analysis with respect to rapid and repetitive motion is superfluous since claimant failed to satisfy the objective findings and major cause requirements of the Arkansas Workers' Compensation Act. I cannot agree. In my opinion, claimant has satisfied these elements; therefore, it may well be appropriate to consider rapid repetitive motion. It is worth noting, however, that it is unclear whether claimant sustained carpal tunnel syndrome (CTS) or tendinitis. Of course, a rapid repetitive motion analysis would be unnecessary with a diagnosis of CTS. Kildow v. Baldwin Piano Organ, 333 Ark. 335, ___ S.W.2d ___ (1998). Second, I am of the opinion that if such an analysis is appropriate, claimant has met her burden of proof.
Claimant worked for this employer for approximately three years when she reported pain in her left wrist in April of 1995. She had been placed on a new "worksmart" production line. Claimant described her duties as follows:
It required you to, there was nine stations and seven of the stations required you to release the trays that the product was on with your left hand. And that's, you had to release them with so much pressure and then push them down the line to the next person. And then you had to solvent seal more smaller parts. And they required you to do it at a certain time, you know, certain speed and wanted you to get out a certain amount of product.
Claimant worked on an assembly line. The Arkansas Court of Appeals has recognized that it is a matter of common sense that on an assembly line, there exists an expectation of work being performed at a rapid pace, i.e. swift or quick. See, Kildow v. Baldwin Piano Organ, 333 Ark. 335, ___ S.W.2d ___ (1998), rev'd on other grounds, 58 Ark. App. 194, 948 S.W.2d 100 (1997). She stated that she was required to meet production quotas. Claimant's description of her job revealed that releasing the trays containing product required a great deal of hand pressure. Then, she pushed the trays down the production line. Next, claimant was required to seal smaller parts. It is clear that her work was very hand-intensive.
In Baysinger v. Air Systems, Inc., 55 Ark. App. 174 934 S.W.2d 230 (1996), the Court of Appeals held that in order to satisfy the repetitive prong of the statutory definition, it was permissible to consider multiple tasks collectively. Thus, it is my opinion that viewing the assembly line tasks together, claimant has satisfied this prong of the test.
The record also contains the testimony of claimant's co-worker, Brenda Daley. Ms. Daley testified that she has also performed claimant's job. She corroborated claimant's testimony regarding the hand-intensiveness and rapid and repetitive nature of the work. Daley pointed out that employees were required to maintain a certain speed in order to keep up with one another. She also stated that she developed problems with her hands which culminated in bilateral hand surgery.
Only claimant and Daley offered evidence with respect to their work. Respondents offered no contrary evidence. Accordingly, I am satisfied that claimant's injury was caused by rapid repetitive motion.
In my view, the objective findings requirement has been satisfied. In December of 1996, claimant complained of swelling in the fingers of her right hand. In his chart note dated December 2, 1996, Dr. Knox translated this complaint to a finding of "puffiness." While not a particularly eloquent characterization, it nevertheless represents a direct observation by Dr. Knox of an objective finding. In Karen Williams v. General Electric Company, Full Commission Opinion filed April 3, 1998 ( E303597), we had an opportunity to consider whether a physician's chart notation of "puffiness" satisfied the objective findings requirement of Act 796. We stated in Williams that "obviously the swelling observed by [claimant's physician] qualifies as an objective finding."
With respect to the major cause requirement, I am satisfied that claimant has met her burden of proof. In reaching this conclusion, the majority relies upon the opinion of Dr. Knox. In my view, his opinion with respect to causation is entitled to no weight. Dr. Knox's letter fails to elaborate on precisely what "additional history" respondent employer provided. It is clear that he was informed of claimant's leave of absence. However, there is no indication that he was informed that on July 29, 1996, claimant complained of problems with her right arm and wrist. These complaints were documented by the company nurse. Moreover, it appears that his opinion is based solely on claimant's leave of absence. In my view, this factor is not determinative since claimant sustained a gradual onset injury. By definition, a gradual onset injury is not identifiable by time and place of occurrence. Therefore, it is my opinion that testimony regarding where the symptoms first manifested themselves is not dispositive. Nevertheless, I would point out that the period of time which elapsed between claimant's last day of work prior to her leave of absence and her appointment with Dr. Knox on November 14, 1996, was just 2 weeks. The record contains no evidence that during claimant's leave of absence, she engaged in any activity which could have caused or contributed to her condition. Moreover, Dr. Knox previously opined that since claimant's 1995 electrodiagnostic studies were at the upper most limits of normal, she was a person "at risk" for developing right carpal tunnel syndrome. Accordingly, he concluded that her work activities required careful monitoring.
The record reflects that claimant had no additional problems with her right wrist until returning to work after carpal tunnel release surgery was performed on the left side. The surgery was performed on July 19, 1996. Following a brief recuperative period at home, claimant was released to return to work with restrictions. Moreover, she was instructed to wear a splint at work. Obviously, this placed increased stress on her right hand. In my opinion, claimant has demonstrated the requisite causal connection.
I am also satisfied that with respect to entitlement to Ark. Code Ann. § 11-9-505 benefits, claimant has met her burden of proof.
For the foregoing reasons, I respectfully dissent.
PAT WEST HUMPHREY, Commissioner