Opinion
CLAIM NO. F003222
OPINION FILED AUGUST 16, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by R. GUNNER DELAY, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by BETTY DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part, and reversed in part.
OPINION AND ORDER
Both parties appeal an opinion and order filed by an administrative law judge on December 5, 2000. In that opinion and order, it was determined that claimant proved that his bilateral carpal tunnel syndrome was compensable and medical benefits were awarded. The administrative law judge also held that claimant failed to prove the occurrence of a compensable shoulder injury. Respondents received an offset in accordance with Ark. Code Ann. § 11-9-411. Based on our de novo review of the entire record, we find that his bilateral carpal tunnel syndrome is compensable. He is entitled to medical and indemnity benefits based upon this injury. We further find that claimant failed to prove that he sustained a compensable shoulder injury. Finally, we find that respondents are entitled to an offset in accordance with § 11-9-411. Therefore, the decision of the administrative law judge must be affirmed in part and reversed in part.
Claimant's employment with respondents commenced in 1987. He stated that two years prior to his employment separation, which occurred in 1998, he developed physical complaints. Claimant explained that when the symptoms began, he was rotating between the tumbler department and the paint line.
Claimant stated that the tumbler department involved lifting trays of parts and loading them into machines (tumblers). The weight of the loaded trays varied from about 30 to 40 pounds. As each machine stopped, it would be unloaded, reloaded, and started anew. He testified that he removed wet parts from the tumblers and placed them in another location to dry. Claimant stated that there are seven tumblers in the plant. He explained that approximately three times each shift he loaded the largest tumbler. Because of the size variation, claimant was unable to quantify the parts processed per shift.
Claimant described the paint line as requiring a great deal of wrist movement. He stated that the cores were unloaded from the ovens and placed onto a conveyor for spray painting. According to claimant, templates were used to ensure an even coating of paint. He stated that the wet cores were returned to the ovens on trays after painting. Claimant testified that the ovens were about six feet in height, and had several drawers. He indicated that some trays were loaded into the oven at shoulder level. After a brief period in the oven, the cores were removed, and the process was repeated so that the opposite side could be painted.
Claimant testified that there were four ovens, of which three were filled. He stated that it was necessary for one oven to remain empty for placement of the wet cores. Claimant stated that each oven could hold forty racks. He stated that a tray filled with parts weighed between 25-35 pounds. During this process, claimant had other duties, including minor maintenance and wiping paint spills.
Claimant stated that prior to his employment separation, he reported some physical complaints to respondents. He testified that he informed Susan Talpan and Penny Martin of these problems. Claimant stated that he indicated he experienced constant pain and stiffness in his shoulders. He testified that his bilateral wrist complaints included cramps. Also, his hands "fell asleep". Following an eight-hour shift, he had difficulty gripping the steering wheel as he drove home. Thus, he was unable to work overtime. Claimant testified that he quit his job with respondents in July or August of 1998. Thereafter, he received benefits for twelve weeks from a group health policy. He indicated that the weekly benefit rate was $130.00, but taxes were deducted.
On cross-examination, claimant acknowledged that his surgical bills have been paid through respondents' group health policy. He testified that he has had bilateral wrist surgery, in addition to shoulder surgery. Claimant stated that he has not worked since his employment separation.
Respondents offered the testimony of Ms. Penny Martin, Scheduling Supervisor. She stated she was employed as Production Supervisor in 1998. Ms. Martin indicated that claimant also worked in the grinding department. She estimated that he spent forty percent (40%) of his time working on the paint line, and the remainder equally divided between the tumbling and grinding departments. Ms. Martin testified that she supervised claimant from May of 1997 until his employment separation. In August of 1998, Ms. Martin assigned overtime hours to claimant. She testified that claimant indicated that he did not wish to work overtime. He explained that he performed a difficult job on the paint line. Moreover, he reported fatigue as well as pain in his back, shoulders, and legs. Claimant informed Ms. Martin that he would work overtime; however, he intended to obtain a doctor's excuse. She testified that it was her impression that claimant attributed his symptoms to working on the paint line.
Ms. Martin testified that she informed her supervisor, Dan Campbell, of the conversation with claimant. As a result, Campbell met with claimant and Martin. She stated that Mr. Campbell asked claimant twice if he was claiming workers' compensation benefits, which he denied. Ms. Martin testified that claimant complained of being tired; however, he never mentioned shoulder pain or symptoms of carpal tunnel syndrome.
On cross-examination, Ms. Martin testified that the day after claimant registered physical complaints, she accompanied him to the company physician for an examination. She stated that respondents were attempting to determine the source of claimant's complaints.
Mr. Daniel Campbell, Production Manager also testified in behalf of respondents. He stated that the company manufactured ceramic electronic components, which have multiple applications. Mr. Campbell explained that the company produces seven million cores per month. Mr. Campbell testified that in the tumbling department, claimant was required to empty a bin of cores into a bowl containing ceramic media. After processing to wear off the sharp edges, the cores are automatically discharged into a bin. Mr. Campbell testified that since the cores are dumped into the machine, they are not handled individually.
Mr. Campbell agreed that the tasks in the grinding department are tedious and must be performed at a fairly slow rate of speed. He testified that claimant's duties entailed removing the cores from the conveyor belt following the grinding process. Elaborating on his response, Mr. Campbell described claimant's duties:
Okay. Hot cores, E cores and U cores are cores that are used on printed circuit boards, and they've made up pairs. In order to have a flat mating surface for the cores, they have to go through a grinding operation. They're ground with a diamond wheel. The cores have to be ground perfectly flat. So if it requires taking a straight edge and scooting a row of parts off onto a conveyor belt, and they have to keep the cores very uniformly in line — — in a straight line — — and the belt speed runs from 40 to 80 inches a minute.
With respect to claimant's tasks on the paint line, Mr. Campbell stated that a full tray of cores weighed about fourteen pounds. Mr. Campbell explained that there are four ovens, which have double rows of drawers. He stated that the top drawer is five feet off of the ground. Mr. Campbell indicated that the conveyor belt is three feet off of the ground. Thus, the work is performed below shoulder level. He stated that there are five drawers and four full trays of cores fit into each drawer. Mr. Campbell testified that there are no manual spray guns used in the painting process.
Mr. Campbell stated that the company does not use a quota system. Moreover, he testified that there are not enough supervisors to monitor the speed at which an individual performs his assigned duties.
Mr. Campbell testified that the appointment with Dr. Craft was scheduled as a "precautionary measure."
He stated that in October of 1998, claimant was offered a job in the kiln department. He testified that claimant declined the position, explaining that it was too complicated.
Ms. Chonta Salts, Manager of Administrative Services testified in behalf of respondents. Upon instructions from Mr. Campbell, she arranged for claimant to be examined by Dr. Craft. Ms. Salts testified that the appointment was not scheduled as part of a workers' compensation claim since respondents were unsure of the cause of claimant's symptoms. She stated that Dr. Craft's bill was paid by respondents. Ms. Salts testified that on September 4, 1998, claimant completed a claim for benefits under the group disability plan. She stated that WCC Form AR-N was furnished since he indicated that the condition was work related.
Ms. Salts testified that on October 14, 1998, claimant provided a note from his physician indicating he could return to full duty on October 26, 1998. She stated that he worked a complete shift on October 26, 1998 and five 1/4 hours the following day. Ms. Salts testified that claimant was being trained for the kiln position. Then a meeting was scheduled with management, and claimant declined to work in the kiln area. She testified that he resigned in June of 1999.
The medical records showed that on August 12, 1998, Dr. Charles W. Craft diagnosed "NON-SPECIFIC ARTHRALGIAS." He released claimant to return to regular duty. An "Electromyogram Report" prepared on August 18, 1998 by Dr. William A. Knubley revealed the following impression: "This is an abnormal study compatible with bilateral carpal tunnel syndrome, moderate in severity." Claimant was referred to Dr. John C. Smith for a surgical consultation. Dr. Smith's deposition testimony was introduced at the hearing. He stated that he initially evaluated claimant on August 25, 1998. Dr. Smith testified that claimant was referred with a diagnosis of carpal tunnel syndrome. He stated that claimant presented with a history of performing repetitve work. Dr. Smith testified that after reviewing the electrodiagnostic studies, he agreed with the carpal tunnel syndrome diagnosis.
In a letter to respondent employer the following day, Dr. Smith recommended a duty change, noting that claimant's symptoms of carpal tunnel syndrome dissipated at night and on weekends. He opined it may be possible to avoid surgery if claimant received an alternate duty assignment. Further, Dr. Smith stated that if he continued to perform the same duties, claimant's symptoms could recur.
Ultimately, Dr. Smith performed surgical releases upon claimant. He testified that the left wrist was done on September 22, 1998. Dr. Smith performed the right carpal tunnel release surgery on November 10, 1998.
Dr. Smith testified that during a post-operative visit on November 20, 1998, claimant requested surgical intervention for the treatment of his shoulder complaints. He stated that he recommended that claimant consult Dr. Alexander for further problems. Dr. Smith testified that he does not usually issue a formal release to patients. However, he completed a Commission form reflecting that claimant was released to full duty on November 30, 1998. Dr. Smith stated that he did not assign an impairment rating.
Additional medical reports from Cooper Clinic showed that claimant consulted Dr. Jeffrey K. Evans on December 1, 1998. Morever, the deposition testimony of Dr. Evans was introduced at the hearing. He testified that he examined claimant as a result of a referral from Dr. Alexander. Dr. Evans stated that claimant complained of left shoulder pain with overhead movements, which had persisted for six months. Upon clinical examination, he diagnosed impingement syndrome and acromio-clavicular joint arthritis. Dr. Evans prescribed physical therapy. On December 29, 1998, claimant reported improvement. Physical therapy was stopped and claimant was released.
Claimant's condition recurred in April of 2000. On May 10, 2000, Dr. Evans performed an arthroscopic subacromial decompression. He testified that surgical intervention improved claimant's condition.
Dr. Evans testified that claimant attributed his symptoms to his employment. However, he did not describe a specific accident. Dr. Evans testified that claimant did not furnish details of his work activities. He stated that claimant's condition is "definitely related" to his employment duties with respondents.
Claimant contends that he sustained two gradual onset injuries in the form of bilateral carpal tunnel syndrome and shoulder impingement sydrome.
In Kildow v. Baldwin Piano Organ, 33 Ark. 335, 969 S.W.2d 190 (1998), the Supreme Court recognized that carpal tunnel syndrome constitutes a gradual onset injury. Therefore, claimant need not demonstrate it was caused by rapid repetitive motion. Compensability is established through proof by a preponderance of the evidence that: (1) the injury arose out of and in the course of his or her employment; (2) the injury caused internal or external physical harm to the body that required medical services or resulted in disability or death; and (3) the injury was a major cause of the disability or need for treatment. Ark. Code Ann. § 11-9- 102(4)(A)(ii) (E)(ii) (Supp. 1999). Also, a compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Supp. 1999).
With respect to his shoulder condition, claimant does not assert the occurrence of an accidental injury. Since his condition is not recognized as a per se rapid repetitive injury, claimant must prove that his shoulder problems were caused by rapid repetitive motion. Ark. Code Ann. § 11-9-102(4)(A)(ii)(a) (Supp. 1999).
In Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998), the Supreme Court enumerated the elements which must be satisfied under a theory of rapid repetitive motion. The court stated that: "Specifically, a claimant must prove by a preponderance of the evidence that: (1) the injury arose out of and in the course of his employment; (2) the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death; (3) the injury was caused by rapid repetitive motion; (4) the injury was a major cause of the disability or need for treatment; and (5) the injury must be established by medical evidence supported by objective findings. (Citing Lay v. United Parcel Serv., 58 Ark. App. 35, 944 S.W.2d 867 (1997)).
After surveying pertinent case law which has interpreted the phrase "rapid repetitive motion," the Supreme Court concluded that ". . . the standard is a two-pronged test: (1) the tasks must be repetitive, and (2) the repetitive motion must be rapid. As a threshold issue, the tasks must be repetitive, or the rapidity element is not reached." Malone, supra, at 350.
Turning to the facts of this case, we specifically find that claimant failed to prove the occurrence of a gradual onset shoulder injury. Although claimant's duties may have been repetitive, the rapidity requirement is not satisfied. Clearly, claimant had difficulty describing his job duties. However, Mr. Campbell articulated the pertinent processes associated with the manufacturing of ceramic electronic components. The descriptions he furnished regarding the grinding, tumbling, and painting departments support a finding that claimant performed his duties at a deliberate and sometimes tedious pace. Since a condition precedent to compensability is not satisfied, we find that claimant failed to prove the occurrence of a gradual onset shoulder injury under the Arkansas Workers' Compensation Act.
With respect to the compensability of his bilateral carpal tunnel syndrome, we find that claimant has met his burden of proof. His injury produced physical harm, supported by objective findings in the form of electrodiagnostic studies. Claimant's carpal tunnel syndrome was the major cause of his need for treatment, including surgical intervention. We further find that claimant's injuries are work related. His duties required extensive hand and wrist use. There is no evidence that claimant engaged in any outside activities that could have caused carpal tunnel syndrome.
The medical evidence also supports a causal nexus. In Freeman v. Con-Agra Frozen Foods, 344 Ark. ___, ___, S.W.3d ___ (2001), the Supreme Court addressed the medical certainty requirement:
This court has never required that a doctor be absolute in an opinion or that the magic words "within a reasonable degree of medical certainty" even be used by the doctor. Rather, this court has simply held that the medical opinion be more than speculation . . . Accordingly, if the doctor renders an opinion about causation with language that goes beyond possibilities and establishes that work was the reasonable cause of the injury, this should pass muster.
Dr. Smith testified that repetitive work is consistent with carpal tunnel syndrome. He stated that if he is presented with a history of repetitive work and electrodiagnostic studies revealed the presence of carpal tunnel syndrome, he assumed there is an association. Dr. Smith's opinion on causation could have been more forceful. However, the statute is satisfied.
The documentary evidence also supports a finding of causation. In August of 1998, Dr. Smith drafted a letter to respondents indicating that claimant presented with a history of repetitive motion job duties. He included the diagnosis of carpal tunnel syndrome. Dr. Smith noted that claimant's symptoms dissipated at night and on weekends. In order to avoid surgery, Dr. Smith recommended claimant's reassignment and the use of a splint. He cautioned respondents about the recurrence of claimant's carpal tunnel syndrome symptoms unless his duties were amended. He requested a new assignment, indicating claimant's carpal tunnel syndrome could recur in the absence of a duty change. Also, Dr. Smith completed an AR-3, diagnosing carpal tunnel syndrome and attributing it to repetitive motion. This form is completed by physicians in the event of work-related injuries.
On appeal, respondents contend that the requisite causal connection is absent. It is their contention that Dr. Smith's opinion is mere speculation. To bolster their argument, respondents rely on the following exchange:
Doctor based upon a reasonable degree of medical certainty you can't state what caused Mr. Fletcher's carpal tunnel syndrome in either the right or the left wrist, is that true?
Based on objective findings?
Right.
No.
As we interpret this exchange, Dr. Smith understood the question posed by counsel for respondents to be whether the the cause of claimant's condition could be determined by the results of the electrodiagnostic studies. There is no such requirement under Arkansas law. In Wal-Mart Stores v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999), the Supreme Court stated "that objective medical evidence is necessary to establish the existence and extent of an injury but not essential to establish the causal relationship between the injury and a work-related accident."
We are also persuaded that the element of major cause is satisfied. In Medlin v. Wal-Mart Stores, Inc., 64 Ark. App. 17, 977 S.W.2d 239 (1998), the Court of Appeals distinguished the elements of causation and major cause, holding that the latter element is met if claimant demonstrates that his injury is the major cause of his disability or need for treatment. Here, Dr. Smith performed a surgical release on both wrists. Clearly, his injury, i.e., bilateral carpal tunnel syndrome, was the major cause of his need for treatment and release surgery and the resulting disability.
Accordingly, we hold that claimant proved all elements of compensability for bilateral carpal tunnel syndrome.
Claimant seeks an award of temporary total disability benefits. In Wheeler Construction Co. v. Armstrong, 73 Ark. App. ___, ___ S.W.3d ___ (2001), the Court of Appeals addressed the requirements for demonstrating entitlement to benefits for a scheduled injury:
We hold that the plain meaning of the language employed indicates that an employee who has suffered a scheduled injury is to receive temporary total or temporary partial disability benefits during his healing period or until he returns to work regardless of whether he has demonstrated that he is actually incapacitated from earning wages.
The record concerning claimant's period of disability is somewhat confusing. He seeks benefits commencing on September 22, 1998, which is the date of his left carpal tunnel release. On October 30, 1998, Dr. Smith completed a section of a form entitled "Attending Physician's Statement." He indicated that claimant was continuously totally disabled from August 25, 1998, through November 10, 1998. Moreover, the form indicated that claimant was released to return to work effective November 10, 1998. Since claimant's right carpal tunnel release was done on November 10, 1998, it appears that Dr. Smith's decision to perform the operation was made subsequent to October 30, 1998.
Dr. Smith testified at deposition that his chart notes typically do not reflect formal work releases. However, an AR-3 completed by Dr. Smith on December 1, 1998, showed that claimant was released to return to work without restrictions on November 30, 1998.
We specifically find that claimant is entitled to temporary total disability benefits from September 22, 1998 through November 30, 1998. However, claimant testified that he received disability benefits from the employer's group health policy. Respondents offered testimony that claimant signed a reimbursement agreement in the event that his claim was deemed compensable. Claimant's temporary total disability rate is $350.00, and the group disability policy paid a weekly benefit amount of $130.00 less taxes. Moreover, the group health carrier paid medical benefits associated with claimant's bilateral carpal tunnel syndrome. Respondents are entitled to an offset; therefore, § 11-9-411 is applicable.
Claimant requested medical benefits for the treatment of his carpal tunnel syndrome, including surgical intervention. Respondents must furnish all reasonably necessary medical services. Ark. Code Ann. § 11-9-508 (a) (1996). Determining what constitutes reasonably necessary treatment is a fact question for the Commission's resolution. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). Post-surgical improvement is a proper consideration in determining the reasonableness and necessity of a given procedure. Winslow v. D B Mechanical Contractors, 69 Ark. App. 285, ___, S.W.3d ___(2000).
Here, Dr. Smith opined that surgery was necessary based upon the abnormal electrodiagnostic studies and clinical examination. He testified that after he performed the left carpal tunnel release, claimant reported good results. Then, Dr. Smith operated on claimant's right wrist. He stated that claimant improved as a result of the second surgical procedure. Dr. Smith testified that he did not document any further wrist complaints following surgery. He opined that claimant was not entitled to an anatomical impairment rating. On November 30, 1998, claimant was released to full duty. Under these circumstances, we specifically find that the medical treatment claimant received for the treatment of bilateral carpal tunnel syndrome was reasonably necessary.
Based on our de novo review of the record, and for the reasons stated herein, we find that claimant failed to prove the occurrence of a gradual onset shoulder injury. Further we find that claimant demonstrated that his bilateral carpal tunnel syndrome is a compensable injury for which he is entitled to receive medical benefits. Also, he proved entitlement to temporary total disability benefits commencing on September 22, 1998 until November 30, 1998. Finally, we find that respondents are entitled to an offset. Hence, the decision of the administrative law judge is affirmed in part and reversed in part.
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 of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
_____________________________ ELDON F. COFFMAN, Chairman
_______________________________ SHELBY W. TURNER, Commissioner
I respectfully concur in part and dissent in part from the majority opinion. Specifically, I concur in the majority's finding that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable shoulder injury and the finding that the respondents are entitled to an offset in accordance with Ark. Code Ann. § 11-9-411. However, I must respectfully dissent from the majority's finding that the claimant proved by a preponderance of the evidence that he sustained compensable bilateral carpal tunnel syndrome. In my opinion, the claimant failed to meet his burden of proof.
Therefore, I respectfully concur in part and dissent in part from the majority opinion.
_______________________________ MIKE WILSON, Commissioner