Opinion
CLAIM NOS. E704404 E706061
OPINION FILED MARCH 18, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by FRANK NEWELL, Attorney at Law, Little Rock, Arkansas.
OPINION AND ORDER
[2] This case is presently back before the Commission after we granted the claimant's motion for reconsideration on July 30, 1998. In an opinion dated May 15, 1998, the Commission found that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury in the form of carpal tunnel syndrome. The Commission found that the claimant failed to prove that his work activity was rapid and repetitive as required by Ark. Code Ann. § 11-9-102. In his motion for reconsideration, the claimant cited the case of Kildow v. Baldwin Piano Organ, 333 Ark. 335, 969 S.W.2d 190 (1998), wherein the Arkansas Supreme Court found that proof of rapid and repetitive motion is not necessary for a finding of compensability for a claim involving carpal tunnel syndrome. We granted the claimant's motion and subsequent to that the respondent has filed a motion for reaffirmation of the Full Commission Opinion of May 15, 1998. We deny the respondent's motion. However, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury in the form of carpal tunnel syndrome.The claimant has been employed by the respondent employer since September of 1992. The claimant performed the job of packer wherein he was required to package cooking ware into a box on an assembly line. On February 12, 1996, the claimant suffered a compensable injury to his right wrist in the form of a ganglion cyst. The claimant received medical treatment for the removal of the cyst but missed no time from work as a result.
On April 4, 1997, the claimant informed his supervisor that he was unable to perform the work assigned to him because of swelling and pain in his right wrist. The claimant sought treatment from Dr. Harold Betton for treatment of his right wrist pain. Dr. Betton ordered electro diagnostic studies which indicated mild carpal tunnel entrapment of the right median nerve. Dr. Betton referred the claimant to Dr. Michael Moore. Dr. Moore subsequently performed carpal tunnel surgery on the claimant's right wrist. The claimant returned to work for the respondent in September of 1997.
The claimant contends that he suffered an injury in the form of carpal tunnel syndrome on or about April 4, 1997. The claimant contends that this injury is the result of either a cumulative trauma, an aggravation or a recurrence. The respondent contends that the claimant did not sustain a compensable injury in the form of carpal tunnel syndrome.
The burden of proof rests upon the claimant to prove the compensability of his claim. Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is indeed compensable. O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (Repl. 1996). In determining whether a claimant has sustained his burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704; Wade v. Mr. C Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987).
The claimant contends that he sustained a recurrence of his February 12, 1996 injury on or about April 4, 1997. We find that the claimant has failed to meet his burden of proof. Where the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for every natural consequence that flows from that injury. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). If, after the period of initial of disability has subsided, the injury flares up without having an intervening cause and creates a second disability, it is mere recurrence and the employer remains liable. McDonald Equipment Co. v. Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989). A recurrence is not a new injury but simply another period of incapacitation resulting from a previous injury. See Atkins, supra. This principle has been consistently applied where a second complication is found to be a natural and probable result of the first injury. It is only where it is found that the second episode has resulted from an independent intervening cause that the liability will be affected. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1993).
There is no evidence presented whatsoever linking claimant's carpal tunnel syndrome with his ganglion cyst injury of February 12, 1996. Further, there is no medical evidence drawing a connection between the claimant's work activities and his right wrist condition. Dr. Michael Moore, the claimant's treating physician, wrote a report on April 16, 1997 stating that he could not definitively state that the claimant's work activities caused his right wrist problems. Although he did say that the activities such as those the claimant did at work could precipitate or aggravate the claimant's symptoms, Dr. Moore failed to relate these symptoms to the claimant's work activities.
Further, the claimant's testimony fails to establish that he continued having problems with his wrist after the cyst was removed. The claimant testified that he had been to see the respondent employer's nurse, Brenda Fleming, complaining of pain in his right wrist several times after he had his ganglion cyst removed in February of 1996. However, the testimony of Ms. Fleming directly contradicts the claimant's testimony. Ms. Fleming testified:
Q. Do you recall seeing him once or twice a month and him talking to you about anything?
A. After surgery or before surgery?
Q. After his May 1996 surgery.
A. No, no, not about his wrist.
Q. Is it possible that he came to your office to pick up an aspirin, or something, where you didn't see him?
A. That's always possible.
Q. Okay. Why would you recall it, if you would, if there's a reason you would, if he came and sat down and spoke to you about his wrist?
A. If he came to my office after the surgery to speak about his wrist, or get Tylenol, or whatever, for his wrist, then that would have been documented.
Q. Have you reviewed your files?
A. Yes, I have reviewed the files.
Q. Is there — did you find any documentation there?
A. Not after the surgery for the wrist, no.
Q. Did you find — is there any documentation there that he talked to you about anything?
A. Yes, he had fallen and received a small cut above his eye and I did bandage that, or cleaned it, and then he came in one day — through communication with the supervisors I have little pieces of paper with carbon copies, and I needed to see him back the next day, but it could have been about that. I don't know.
Q. What about the wrist bands?
A. I believe the wrist bands was between sometime 2/12/96 until the time that he had the surgery. That's when he received the wrist bands.
Q. Did you give him wrist bands after the surgery?
A. No, I do not remember doing that at all. No documentation.
Consequently, based upon Dr. Moore's inability to link the claimant's carpal tunnel to his work activities, and the testimony of Ms. Fleming, we find that the claimant has failed to prove that he sustained a recurrence of his February 12, 1996 injury on or about April 4, 1997 in the form of carpal tunnel syndrome.
The claimant also contended he sustained an aggravation of his February 12, 1996 injury. An aggravation is a new injury resulting from an independent incident. Farmland Ins. Co. v. Dubois, 54 Ark. App. 141, 923 S.W.2d 883 (1996);See Pinkston v. General Tire Rubber Co., 30 Ark. App. 46, 782 S.W.2d 375 (1990). The independent incident must be shown to be work-related to establish compensability.Farmland Ins. Co., 54 Ark. App. at 145, 923 S.W.2d at 886. "An aggravation, being a new injury with an independent cause, must meet the requirements for a compensable injury."Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998). Again, Dr. Moore failed to link the claimant's work activities to his carpal tunnel problems. Further, the claimant cannot show an independent incident. Accordingly, the claimant has failed to meet his burden of proof.
Simply because the claimant did not sustain a specific incident identifiable by time and place of occurrence, his claim does not automatically fail. Act 796 does recognize certain specified exceptions to the general limitation of compensable injuries to those injuries which are caused by specific incident and which are identifiable by time and place of occurrence.
Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) (Supp. 1997) defines a "compensable injury" as:
(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(a) Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as a compensable injury falling within this definition[.]
The meaning of the term "rapid repetitive" motion has been construed many times. See Lay v. United Parcel Serv., 58 Ark. App. 35, 944 S.W.2d 867 (1997); Kildow v. Baldwin Piano Organ, 58 Ark. App. 194, 948 S.W.2d 100 (1997); and Baysinger v. Air Sys., Inc., 55 Ark. App. 174, 934 S.W.2d 230 (1996). On May 21, 1998, the Arkansas Supreme Court reversed the decision of the Arkansas Court of Appeals in Kildow. See Kildow v. Baldwin Piano Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). It held that the Commission, and consequently the Court of Appeals, had erred in its interpretation of Ark. Code Ann. § 11-9-102(5)(ii), and said:
[T]he meaning of section 11-9-102(5)(A)(ii) is plain and unambiguous. That statute explicitly provides that CTS is both compensable and falls within the definition of rapid repetitive motion. To accept the Commission's interpretation that CTS is merely a type of rapid and repetitive motion still requiring proof of that element would be to ignore the second sentence of the provision. We do not interpret statutes to create superfluity. The statute provides that CTS is specifically categorized as a compensable injury, not that it is categorized as a type of rapid repetitive motion. We will not disregard the legislative intent expressed in Ark. Code Ann. § 11-9-1001 (Repl. 1996) mandating strict and literal construction of the workers' compensation statutes and admonishing the court to leave policy changes to the legislature. (Emphasis in the original.]
The Supreme Court went on to say that the statute safeguards employers because a claimant must prove the injury arose out of and in the course of employment, provide objective medical evidence of the physical harm, and show that the rapid-respective-motion injury is the major cause of the disability or need for treatment.
In light of the Arkansas Supreme Court's decision inKildow, it is not necessary for the claimant to prove that his carpal tunnel syndrome was caused by rapid repetitive motion. He need only prove that he has carpal tunnel syndrome, that it was the result of his employment, that there was objective medical evidence to confirm the condition, and that it was the major cause of the need for treatment.
After conducting a de novo review of the record we find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury in the form of carpal tunnel syndrome. Although the claimant is not required to prove that his job duties entailed rapid and repetitive motion, he must prove that his carpal tunnel syndrome arose our of and in the course of his employment with the respondent. The claimant has failed to prove this because he has failed to offer any evidence to support a finding that his carpal tunnel syndrome problems are causally related to his February 21, 1996, compensable injury. Further, the claimant has failed to prove by a preponderance of the evidence that his injury was the major cause of his need for medical treatment or his disability as required under Ark. Code Ann. § 11-9-102(5) (E)(ii) (Supp. 1997) which provides:
For injuries falling within the definition of compensable injury under subdivision (5)(A)(ii) of this section, the burden of proof shall be by a preponderance of the evidence, and the resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment.
"Major cause" means more than fifty percent of the cause. Ark. Code Ann. § 11-9-102(14)(A) (Supp. 1997).
The evidence simply fails to support a finding that the claimant's injury was the major cause of his need for medical treatment or disability. Claimant has failed to introduce any medical evidence indicating that his alleged compensable injury is the major cause of his disability. The only medical evidence we have is Dr. Moore's April 16, 1997, report wherein he stated that he could not definitely state that the work the claimant performed for the respondent was a primary cause of his carpal tunnel syndrome. The Commission is required by the holding in the case of Medlin v. Wal-Mart, 64 Ark. App. 17 977 S.W.2d 239 (1998) not to consider evidence of the claimant's job duties when making findings on major cause. Even if the Commission were willing to speculate that Dr. Moore's April 16th letter constituted a medical opinion with respect to compensability, Dr. Moore fails to give an opinion within a reasonable degree of medical certainty, as required by Ark. Code Ann. § 11-9-102(16)(B) (Supp. 1997) which states that medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.
Dr. Moore's opinion of April 16, 1997, does not meet this requirement, nor can it be inferred from the report. In order for us to find that Dr. Moore's report meets the requirement of Ark. Code Ann. § 11-9-102(16)(b) requires conjecture and speculation on our part. 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 Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).
Therefore, after considering all of the evidence impartially without giving the benefit of the doubt to either party, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury in the form of carpal tunnel syndrome. This claim is hereby denied and dismissed.
IT IS SO ORDERED.
_______________________________
DISSENTING OPINION
I must respectfully dissent from the opinion of the majority finding that claimant failed to prove by a preponderance of the evidence that his carpal tunnel syndrome is compensable. In my opinion, claimant has met his burden of proving that his condition is causally related to his employment and that the condition is the major cause of his disability or need for treatment.
Claimant had an admittedly work-related ganglion cyst removed in the spring of 1996. He returned to work at his regular duties in July 1996 but soon thereafter began to notice increased wrist problems. These difficulties eventually progressed until he had to begin missing work again in April 1997. Claimant was experiencing pain and swelling in his right wrist. Electromyography revealed an abnormality "commonly seen with carpal tunnel entrapment." Eventually Dr. Moore performed surgery on claimant's carpal tunnel and claimant returned to work in September 1997.
Claimant asserted that the surgery helped his symptoms.
Claimant's job duties were hand intensive and quite repetitive. There is no evidence whatsoever of a nonwork-related explanation for his carpal tunnel syndrome. Claimant informed Dr. Moore that his work involved repetitive lifting and gripping. In a report dated April 16, 1997, Dr. Moore stated that he could not "definitively state that the work he performs at Regal Ware is a primary cause of carpal tunnel syndrome; however, if Mr. Crudup does perform repetitive work, it is likely this activity could precipitate, or aggravate, the symptoms." In my opinion, this evidence is sufficient to support a finding that claimant's carpal tunnel syndrome is causally related to his employment and that the carpal tunnel syndrome is the major cause of his disability and need for treatment.
Accordingly, I would reverse the opinion of the Administrative Law Judge and find that claimant has met his burden of proof.
______________________________ PAT WEST HUMPHREY, Commissioner