Opinion
CLAIM NO. E708498
OPINION FILED DECEMBER 17, 1998
Upon review before the FULL COMMISSION in Little Rock, Arkansas.
Claimant represented by ED McCORKLE, Attorney at Law, Arkadelphia, Arkansas.
Respondents represented by CHARLES D. BARNETTE, Attorney at Law, Texarkana, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondents appeal an opinion and order filed by the Administrative Law Judge on December 22, 1997. In that opinion and order, the Administrative Law Judge held that claimant sustained a compensable injury and her claim is not barred by the statute of limitations. Further, the Administrative Law Judge determined that respondent carrier may be entitled to a set-off for a portion of the medical expenses in accordance with Ark. Code Ann. § 11-9-411. (Repl. 1996). After conducting ade novo review of entire record, we find that claimant's claim is not barred by the statute of limitations and that claimant has proven, by a preponderance of the credible evidence, that she sustained a compensable injury. We further find that respondent carrier may be entitled to a set-off pursuant to Ark. Code Ann. § 11-9-411 (Repl. 1996). Therefore, we must affirm the decision of the Administrative Law Judge.
Claimant's work for respondent employer began in 1982. After performing general office work for about one year, claimant transferred to the payroll department. Her job duties included data processing, typing, using a calculator, payroll processing, and completing job tickets. Moreover, claimant testified that after preparing many reports by hand, she was required to enter the data into the computer. Claimant introduced a document consisting of numerous pages which enumerated her various duties.
In July of 1996, respondent employer increased its number of employees from 32 to 60. Claimant testified that her workload doubled as a result of this change. At times, her workday lasted 10-12 hours. Moreover, claimant stated that she sometimes worked weekends.
Claimant called Larry Gardner, Manager, to testify. He corroborated claimant's testimony with respect to her job duties. Gardner testified that since claimant's job is "quite overwhelming," respondents have added personnel to the payroll department. These additions were made in February of 1997. However, claimant was responsible for training the added personnel. Mr. Gardner agreed that claimant was "obviously very busy."
Claimant testified that her children are no longer living at home. She stated that she does not engage in hobbies such as knitting or crocheting. Claimant is right-hand dominant.
On May 6, 1997, claimant consulted Dr. Richard Peek for unrelated medical problems. During that visit, she mentioned her hand symptoms of pain and numbness. Claimant stated that Dr. Peek referred her to Dr. Chesser, and a nerve conduction test was ordered on May 14, 1997. This test demonstrated "moderately severe" right carpal tunnel syndrome. A copy of the test results has been made a part of the record.
Based on the positive test results, claimant was referred to Dr. Earl Peeples. She initially saw Dr. Peeples on June 19, 1997. In his chart note, Dr. Peeples indicated that claimant had experienced a recent augmentation of her hand symptoms. He opined that surgery was indicated. On July 14, 1997, Dr. Peeples performed carpal tunnel surgery on claimant's right hand. Claimant testified she was incapacitated for a two-week period following surgery. However, she returned to light-duty work on July 28, 1997. She stated that the surgery was successful, and the numbness she was experiencing has dissipated.
Claimant testified that after her workers' compensation claim for carpal tunnel syndrome was denied, respondent employer's group health policy paid a great portion of her medical bills.
Claimant's medical history includes a diagnosis of bilateral carpal tunnel syndrome in December of 1993. The medical report reflects that the diagnosis was based on a positive Tinel's sign bilaterally. Also, claimant was diagnosed with a left trigger thumb in 1995. Claimant's thumb injury was accepted as work-related by a previous carrier.
During claimant's recuperative period and the time she performed light duty, her salary continued. Therefore, claimant does not contend that she is entitled to temporary total disability benefits as a result of her injury.
We must decide the applicable limitations period for gradual onset injuries. This is a case of first impression. InJeffrey Watkins v. Calvin Watkins Concrete, Full Commission Opinion filed May 12, 1998 ( E700594), we held that for injuries identifiable by time and place of occurrence, the limitations period commences to run on the date of the accident and not on the date that claimant becomes entitled to disability compensation. However, our holding was limited to specific incident injuries.
Respondents argue that the statute of limitations serves as a bar to claimant's claim because she received a diagnosis of carpal tunnel syndrome in 1993 but her claim for compensation was not filed until 1997. We do not agree.
Ark. Code Ann. § 11-9-702(a)(1)(B) (Repl. 1996) states that: "For purposes of this section, the date of the compensable injury shall be defined as the date an injury is caused by an accident as set forth in § 11-9-102(5)." Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1997) provides in part that: "An injury is `accidental' only if it is caused by a specific incident and is identifiable by time and place of occurrence." Indeed, in City of Blytheville v. McCormick, 56 Ark. App. 149, 939 S.W.2d 855 (1997), the Court of Appeals, interpreting Act 796, held that "the legislature employs the word `accident' in the sense of an event `caused by a specific incident and identifiable by time and place of occurrence.'"
It is generally presumed that the legislature is cognizant of case law which interprets statutory language. Lawhorn Farm Services v. Brown, 60 Ark. App. 64, 958 S.W.2d 538 (1997). Accordingly, we hold that Act 796 only changed the law with respect to specific incident injuries and the strict construction doctrine requires a finding that the law remains unchanged with respect to gradual onset injuries. That is, the statute of limitations does not commence to run until the true extent of the injury manifests and causes an incapacity to earn wages which persists long enough to entitle claimant to benefits under Ark. Code Ann. § 11-9-501 (Repl. 1996). Donaldson v. Calvert-McBride Printing Co., 217 Ark. 625, 232 S.W.2d 651 (1950); Shepard v. Easterling Construction Co., 7 Ark. App. 192, 646 S.W.2d 37 (1983); Hall's Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992).
In this case, there is no evidence that claimant missed work as a result of her injury until surgery was performed on July 14, 1997. During her two-week recuperative period, claimant was paid full salary. Moreover, respondent employer continued to pay claimant full salary during the time that she performed only light duty. Thus, the statute of limitations has not commenced to run. Hall, supra.
Turning now to the merits, claimant has been diagnosed with carpal tunnel syndrome; therefore, claimant need not demonstrate that her work duties involved rapid repetitive motion as an element of her claim. Kildow v. Baldwin Piano Organ, 333 Ark. 335, ___ S.W.2d ___ (1998). However, she 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 the claimant's disability or need for treatment, and the claimant must establish the compensable injury with objective medical findings. Id.
Claimant worked for this employer for a number of years. However, it is clear that her job responsibilities increased significantly in July of 1996 when respondents doubled their work force. Claimant offered a lengthy job description enumerating her duties. Moreover, she called a company representative to testify. He corroborated claimant's testimony with respect to her job duties, and indicated that she was a hard worker. More important, he testified that respondents hired additional personnel for the payroll department in recognition of claimant's heavy workload. There is also an absence of evidence with respect to any other cause of claimant's carpal tunnel syndrome. Claimant specifically testified that she does not engage in hand-intensive hobbies such as knitting or crocheting.
Clearly, claimant required medical services as evidenced by the surgery performed by Dr. Peeples. Also, claimant has offered evidence of objective findings in the form of the nerve conduction velocity study, which revealed right carpal tunnel syndrome.
Based on the above credible evidence, we specifically find that claimant has proven by a preponderance of the evidence that she sustained a compensable injury.
As a final matter, it appears that respondent carrier is entitled to a set-off in accordance with Ark. Code Ann. § 11-9-411 (Repl. 1996). Claimant testified that in addition to other duties, she was responsible for handling all insurance matters. She stated that the group health carrier has paid some portion of her medical bills. Thus, a set-off appears appropriate in this case.
Accordingly, based on our de novo review of the entire record, and for the foregoing reasons, we find that claimant's claim is not barred by the statute of limitations, that she sustained a compensable injury to her right upper extremity in the form of carpal tunnel syndrome, and that respondents are liable for all reasonable and necessary medical benefits. Further, we find that respondents may be entitled to a set-off in accordance with Ark. Code Ann. § 11-9-411 (Repl. 1996). 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 pursuant to Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
CONCURRING OPINION
I concur in the finding of the other two Commissioners that the present claim is not barred by the statute of limitations. I also concur in the findings of the principal opinion that the claimant proved by a preponderance of the evidence that she sustained a compensable injury, and that the provisions of Ark. Code Ann. § 11-9-411 (Repl. 1996) are applicable to this claim. I write separately to express my thoughts on the difficult statute of limitations issue which has been presented to the Full Commission for the first time in this case.
As I interpret the respondents' brief on appeal, the respondents assert that the statute of limitations began to run when the claimant's doctor first diagnosed the claimant with carpal tunnel syndrome in December of 1993. The dissenting opinion concludes that the two year limitations period for filing a claim for benefits began to run at the point that the claimant's diagnosis of carpal tunnel syndrome was first supported by objective findings, i.e., May 14, 1997, and that the two year period had not yet expired by the time the claimant filed the present claim.
In reaching this conclusion the dissent asserts that the addition of Ark Code Ann. § 11-9-702(a)(1)(B) by Act 796 of 1993 was intended to overrule the line of cases prior to Act 796 which classified Arkansas as a "compensable injury" state and not an accident state. However, the administrative law judge and the principal opinion both conclude that Ark. Code Ann. § 11-9-702(a(1)(B), as added by Act 796, amended prior law only with respect to injuries caused by a specific incident, leaving intact pre-Act 796 case law regarding when the limitations period begins to run for gradual onset type injuries.
I tend to agree with the dissent that, as a matter of public policy, it seems somewhat unlikely that the General Assembly would change the statute of limitations in Act 796 for specific incident injuries only, considering the sweeping changes that Act 796 made in other regards for gradual onset injuries as well as specific incident injuries. However, to the extent that the dissent asserts that the addition of Section 702(a)(1)(B) by Act 796 somehow expresses a legislative intent to establish a new type of statute of limitations for both specific incident injuries and gradual onset injuries, I must agree with the conclusion of the principal opinion that, by its plain language, Section 702(a)(1)(B) applies only to those injuries caused by a specific incident, and therefore does not provide any guidance as to how, if at all, the General Assembly intended to change the statute of limitations for gradual onset injuries in Act 796.
If we assume that the General Assemblydid intend to change the statute of limitations for gradual onset injuries in Act 796, then I believe that the dissent's proposed interpretation, that the limitations period begins to run when the injury manifests itself with objective medical findings, has significant appeal. In this regard, I suspect that, for most injuries, the first date that an injury manifests itself through objective medical findings should be much easier to determine than trying to determine when the gradual onset injury first manifested itself through subjective symptoms, as the respondents in the present case apparently seem to propose as the rule of law for gradual onset injuries under Section 702(a) after Act 796.
Of course, the problem with our adopting the dissent's proposed analysis on the statute of limitations for gradual onset injuries is that, while the dissent has proposed what I believewould be a good statute of limitations for gradual onset injuries, neither the dissent or I can cite any provision of Act 796 indicating that the General Assemblydid in fact intend to adopt the dissent's proposed analysis for the statute of limitations for gradual onset injuries. Arguably, if the General Assembly had intended to amend the statute of limitations for gradual onset injuries in the manner proposed by the dissent, the General Assembly could have done so by plain statutory language to that effect. Instead, Ark. Code Ann. § 11-9-702 issilent as to the specific statute of limitations for gradual onset injuries.
I feel constrained to point out that the Seventy-Ninth General Assembly expressly indicated that if the statute of limitations needs to be liberalized, broadened or narrowed, that function is the prerogative of the General Assembly, and not this Commission. See, Ark. Code Ann. § 11-9-1001. Given that admonishment, I would be reluctant to adopt a new statute of limitations for gradual onset injuries, as proposed by the dissent, without some express directive to that effect from the General Assembly.
On the other hand, I note that Act 796 specifically provides that a latent injury or condition shall not delay or toll the limitation periods specified in Section 702. See, Ark. Code Ann. § 11-9-702(g)(1) (Repl. 1996). I also note that, for claims for additional compensation, Act 796 amended the term "compensation" to include disability paymentsor medical treatment. See, Ark. Code Ann. § 11-9-702(b)(1) (Repl. 1996). Obviously, these amendments in Section 702(b) and 702(g) should be read together with Section 702(a) to determine whether these amendments, taken together, might indicate a legislative intent to amend the statute of limitations for gradual onset injuries in Section 702(a) in the manner suggested by the dissent.
I am somewhat concerned that an interpretation of Section 702(a) should be consistent with the amendment made to Section 702(b). In this regard, as noted by the other Commissioners, under Pre-Act 796 case law, the statute of limitationsnever began to run on a "medical only" claim, because the Court had determined that it was the claimant's entitlement only to indemnity benefits (and not medical benefits) which would start the running of the two year limitations period. It seems rather apparent that, after Act 796, the two year statute of limitations under Section 702(a) for a specific incident injury will begin to run on the date of the incident, and the one year statute of limitations for filing a claim for additional benefits for a specific incident injury will begin to run under Section 702(b) upon the receipt of disability benefits or medical benefits. These are both extremely significant changes from the Pre-Act 796 case law that the statute of limitations never began to run under Section 702(a) or (b) in "medical only" claims.
It seems apparent to me that, how the courts ultimately interpret Section 702(a) for gradual onset injuries will have equally profound significance to claims for additional benefits involving gradual onset injuries under Section 702(b). For example, if the courts were to ultimately accept the dissent's proposition that the date of injury for gradual onset injuries under Section 702(a) should now be the date that objective medical findings were first observed, then the two year statute of limitations would begin to run for gradual onset injuries on the date that those objective medical findings were first observed, and the one year limitation period for filing a claim for additional benefits under Section 702(b) would begin to run upon the receipt of disability benefitsor medical benefits. Therefore, one corollary to the dissent's proposed Section 702(a) interpretation is that the two year statute of limitations could start to run for a "medical only" gradual onset injury under Section 702(a), and the one year statute of limitations for filing a claim for additional benefits for a "medical only" gradual onset injury could also begin to run under Section 702(b) if the respondents provided the claimant medical treatment.
Under the principal opinion's proposed analysis (i.e., that Act 796 did not change prior law on the statute of limitations for gradual onset injuries under Section 702(a), I note that the two year limitations period wouldnever begin to run under Section 702(a) for a "medical only" gradual onset injury — (as under pre-Act 796 case law). Consequently, the one year limitations period for filing a claim for additional benefits would also never begin to run for a "medical only" gradual onset injury under Section 702(b), even if the respondents had accepted the claim as compensable and provided the claimant all appropriate medical benefits.
In short, if the General Assembly's primary intent in amending Section 702 in Act 796 was to change the law so that a limitations period would begin to run under Section 702(a) and Section 702(b) for all (specific incident and gradual onset) "medical only" claims, then I believe that the principal opinion's proposed continued application of Pre-Act 796 case law for gradual onset injuries would not implement that intent with respect to gradual onset injuries (since the limitations period would never begin to run for a "medical only" gradual onset injury), and the dissent's proposed analysis would appear to me to be consistent with that intent.
However, if the General Assembly's primary intent was to change the law under Section 702(a) and 702(b) for specific incident injuries only, and through its silence to otherwise leave intact the Pre-Act 796 statute of limitations case law, for all injuries not caused by a specific incident, then the principal opinion's proposed analysis appears consistent to me with that intent.
ELDON F. COFFMAN, Commissioner
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that Act 796 only changed the law on statute of limitations with respect to specific incident injuries. Although I agree that the statute of limitations has not run in this case, I cannot agree with the rationale the majority employs to reach this conclusion. I further find that the claimant has failed to prove that she sustained a compensable injury in the form of carpal tunnel syndrome and dissent from the majority on this issue as well.
The first issue that must be addressed is whether or not this claim is barred by the statute of limitations in this case. The respondent contends that the statute of limitations bars the claimant's claim for benefits. The respondent argues that it has been more than two years since the claimant was diagnosed with carpal tunnel syndrome. The evidence indicates that the claimant was first diagnosed on December 20, 1993 by Dr. Jansen with bilateral carpal tunnel syndrome. However, the claimant did not file a claim for benefits until she had to undergo surgery in July of 1997.
The Administrative Law Judge found that the statute of limitations had not run because the claimant did not suffer a loss of earnings on account of the injury until July of 1997. In making his findings, the Administrative Law Judge applied the Supreme Court's holding in Hall's Cleaners v. Worthen, 311 Ark. 103, 842 S.W.2d 7 (1992).
The provisions of Ark. Code Ann. § 11-9-702(a) (Repl. 1996) state as follows:
Time for Filing. (1)(A) A claim for compensation for disability on account of an injury, other than an occupational disease and occupational infection, shall be barred unless filed with the Workers' Compensation Commission within two (2) years from the date of the compensable injury. If, during the two-year period following the filing of the claim, the claimant receives no weekly benefit compensation and receives no medical treatment resulting from the alleged injury, the claim shall be barred thereafter.
Therefore, under the provisions of Act 796 of 1993, the claimant must file a claim for compensation within two years from the date of the compensable injury. The respondent in this case argues that the statute began to run on December 20, 1993 when the claimant first received a diagnosis of carpal tunnel syndrome.
It is my opinion, that in order for the statute of limitations to begin running on a gradual onset injury, all of the requirements for a compensable injury under the statute must be met. Not only must the claimant prove that her injury is supported by objective findings, she must also prove that her injury caused internal or external physical harm to the body arising out of and in the course of employment and was the major cause of her disability or need for treatment. The medical evidence indicates that the claimant did not receive a diagnosis of carpal tunnel syndrome based on any objective findings, i.e., nerve conduction studies, until May 14, 1997. The diagnosis that the claimant received in December of 1993 was an opinion Dr. Jansen expressed that she had carpal tunnel syndrome based upon a positive Tinel's test. A positive Tinel's test does not meet the requirement of an objective finding under Ark. Code Ann. § 11-9-102(16). The claimant did not receive a confirmed diagnosis of carpal tunnel syndrome until she had objective testing performed on May 14, 1997 when Dr. Chesser did a nerve conduction velocity study. The results of that test indicated that the claimant had moderately severe right carpal tunnel syndrome. Therefore, the claimant did not meet the criteria under the statute until she received a diagnosis, based on an objective finding, until May 14, 1997.
Arkansas Code Ann. § 11-9-702(a)(1)(b) which sets forth requisite statute of limitations period provides. "For purposes of this section, the date of the compensation injury shall be defined as the date an injury is caused by an accident as set forth in § 11-9-102(5). Because the claimant cannot point to a specific date in which the injury occurred, we do not have an "accident date". Under the provisions of the Workers' Compensation Act, the Court's holding in Hall's Cleaners was overruled. Prior to the amendments of Act 796 of 1993, Ark. Code Ann. § 11-9-702(a)(1987) provided:
TIME FOR FILING. (1) A claim for compensation for disability on account of an injury, other than an occupational disease and occupational infection, shall be barred unless filed with the commission within two (2) years from the date of the injury.
(Emphasis added)
In interpreting the term "date of the injury" under the Pre-Act 796 Code, the Arkansas Supreme Court held that Arkansas is a "compensable injury" stating that the Statute of Limitations begins to run at the time of the injury as opposed to the date of the accident. See, Hall's Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992). In so finding, the Court held that the limitations period did not begin running until the injury becomes "compensable". Id. In this regard, the Arkansas Courts have held on numerous occasions that the Statute of Limitations for workers' compensation claims in Arkansas under the law that existed prior to the amendments of Act 796 did not commence to run until the injury caused an incapacity to earn the wages which the employee was earning at the time of the accident and until the incapacity continued long enough to entitle him to benefits under Ark. Code Ann. § 11-9-501(a)(1987). See, Wortham,supra; Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983); Donaldson v. Calvert-McBride Printing Co., 217 Ark. 625, 232 S.W.2d 651 (1950);Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983); Shephard v. Easterling Construction Co., 7 Ark. App. 192, 646 S.W.2d 37 (1983).
Act 796 of 1993 did not alter the language of that portion of Ark. Code Ann. § 11-9-702(a) quoted above. However, in addition to the language quoted above, Act 796 of 1993 added the following relevant provision now codified at Ark. Code Ann. § 11-9-702(a)(1)(B):
For purposes of this section, the date of the compensable injury shall be defined as the date an injury is caused by an accident as set forth in § 11-9-102(5).
In my opinion, this added provision was intended to overrule the line of cases establishing Arkansas as a "compensable injury" state and not an "accident" state.
The Commission recently found in Jeffery Watkins v. Calvin Watkins Concrete, (Claim No. E700594), May 12, 1998:
Reading Ark. Code Ann. § 11-9-702(a)(1)(B) particularly in light of Ark. Code Ann. § 11-9-102(18), we understand the amendments of Act 796 to have changed the law regarding the commencement of the limitations, so that for injuries which occurred on or after July 1, 1993, and which were caused by a specific incident, the limitations period commences to run on the date of the accident and not the date that the claimant becomes entitled to disability compensation as was the rule of law under the Pre-Act 796 Code. Moreover, we note that injuries allegedly compensable under Ark. Code Ann. § 11-9-102(5)(A)(i) and under Ark. Code Ann. § 11-9-102(5)(A)(iv) must each be causally related to a specific incident to be compensable. See City of Blytheville v. McCormick, 56 Ark. App. 149, 939 S.W.2d 855 (1997). Consequently, we find that the new provisions of Ark. Code Ann. § 11-9-702(a)(1)(B) would apply to this claim regardless of whether the compensability of the claimant's syncope episode was tested under either Ark. Code Ann. § 11-9-102(5)(A)(i) or under Ark. Code Ann. § 11-9-102(5)(A)(iv).
In my opinion, the statute of limitations does not begin to run until the claimant has met all the requirements under the statute. Presumably, if an injury is compensable, the major cause requirement will exist at all times. (I would note that claimant is not required to prove her job duties entailed rapid and repetitive motion. See Kildow v. Baldwin Piano Organ, 333 Ark. 335, ___ S.W.2d ___ (1998)). Likewise, if a claimant must prove rapid repetitive motion, if such a claim is compensable, this requirement will exist at all times. The only element with a specific date certain is the date on which objective findings have been found. Because we do not have a specific date of occurrence with gradual onset injuries, the only date we can use for statute of limitations purposes is the date the claimant has a diagnosis based upon objective findings.
The majority finds that Act 796 only amended the law with respect to specific incident injuries and under the strict construction requirement, the law remains unchanged with respect to gradual onset injuries. I cannot agree. For the legislature to have changed the law with respect to the statute of limitations for specific incident injuries and not gradual onset injuries creates an inequitable and absurd result. In my opinion, if the rationale employed by the majority held true to its purpose, we would have to find that there is no statute of limitations for gradual onset injuries. By overruling the line of cases establishing Arkansas as a "compensable injury" state through the added provisions in Ark. Code Ann. § 11-9-702(a)(i)(B) and by arguing that a gradual onset injury cannot be included in the definition of "accident", leads to the result of no period of statute of limitation for gradual onset injuries. I cannot believe that this was the legislature's intent. Rather, after acknowledging that the legislature overruled previous case law establishing Arkansas as a "compensable injury" state as the Courts had defined that phrase, we must accept that the court's old definition of "compensable injury" state is no longer applicable. Applying a strict interpretation to the term "compensable injury," as that term was defined by the Amendments of Act 796 of 1993, once all the elements of compensability have been met, a compensable injury has occurred which is sufficient to invoke the running of the statute of limitations.
I also dissent from the majority's opinion finding that the claimant sustained a compensable injury in the form of carpal tunnel syndrome. 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, FC Opinion filed Feb. 2, 1995 ( E317744). The claimant does not contend that the injury is identifiable by time and place of occurrence. Indeed, the claimant contends that the injury is a rapid repetition motion injury. Consequently, in order to prevail on a rapid, repetitive motion claim, a 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). A claimant must also prove 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)(A)(ii)(a) and § 11-9-102(5)(E)(ii) (Repl. 1996). Finally, Ark. Code Ann. § 11-9-102(5)(D) requires that a claimant must establish a compensable 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., FC Opinion filed May 12, 1995 ( E404813). The Arkansas Supreme Court recently held in the case of Kildow v. Baldwin Piano Organ, ___ Ark. ___, ___ S.W.2d ___ (1998) that carpal tunnel syndrome is specifically categorized as a compensable injury, therefore, a claimant does not have to prove that her job duties entailed rapid repetitive motion. However, the claimant must still meet the other requirements for a gradual onset injury and must have a diagnosis of carpal tunnel syndrome supported by objective findings, and must prove that the compensable injury is the major cause of the disability alleged or need for treatment.
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, she fails to establish the compensability of the claim and the claim must be denied.Reed v. ConAgra, supra. Although the claimant may have a diagnosis of carpal tunnel syndrome supported by objective findings, she still must prove that the injury arose out of and in the course of her employment and that the injury was the major cause of the disability or need for treatment. Major cause is defined as more than 50% of the cause. Ark. Code Ann. § 11-9-102(14)(A).
In my opinion, a review of the evidence indicates that claimant failed to prove by a preponderance of the credible evidence that she sustained a compensable injury. The claimant has the burden of proving by a preponderance of the evidence that her carpal tunnel syndrome is the major cause of the disability or need for treatment. Tyson Foods v. Griffin, 61 Ark. App. 222, 966 S.W.2d 914 (1998). My review of the evidence indicates that the claimant has failed to prove that her injury was the major cause of her disability or need for treatment. The record contains no evidence whatsoever that the claimant's injury was the major cause of her disability or need for treatment.
Therefore, based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof. Accordingly, for the reasons stated herein, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner