Opinion
I.C. No. 550113
FILED: 27 August 1998
This matter was reviewed by the Full Commission on June 10, 1998 upon the appeal of plaintiff from the Opinion and Award of Deputy Commissioner Kim L. Cramer, filed December 31, 1997. Deputy Commissioner Cramer initially heard this matter on September 25, 1995.
Plaintiff: Law Offices of Lee Smith, Attorneys, Spartanburg, SC; Brian A. Martin, appearing.
Defendants: Hedrick Eatman Gardner Kincheloe, Attorneys, Charlotte, NC; L. Kristin King, appearing.***********
The Full Commission has reviewed the prior Opinion and Award based on the record of the proceedings before Deputy Commissioner Kim L. Cramer and the briefs and arguments on appeal. The appealing party has not shown good ground to receive further evidence or to amend the prior opinion and award. Accordingly, after reviewing the evidence of record, the Full Commission affirms the Deputy Commissioner's decision and enters the following Opinion and Award.
************
The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties at the hearing on September 25, 1995 as:
STIPULATIONS
1. The parties are subject to and bound by the provisions of the North Carolina Workers' Compensation Act.
2. All parties are properly before the Commission and the Commission has jurisdiction of the parties and of the subject matter.
3. An employee-employer relationship existed between plaintiff and defendant-employer on May 22, 1995.
4. Defendant-employer was self-insured with Kemper Risk Management as adjusting agent on May 22, 1995.
5. A Baxter Physical Examination and Health Status Report, a Chronological Employee Health Record, a referral for EMG/NCS of Dr. Andrea Stutesman, medical records of Dr. James Stutesman, Fry Regional Medical Center Same Day Surgery Physician's Orders and Consent to Operation form, Letter of Dr. Andrea Stutesman dated 8/1/95, Physician's Statement of Dr. Catherine Yeagley, Letter of Dr. Andrea Stutesman dated 11/8/95, Baxter Attendance Record for Edie Jones, Handwritten note dated 2/8/96, Personnel Change Notice dated 3/13/96, CNA Summary of Short Term Disability Benefits, Baxter speed Letters of 4/5/96, 6/14/95, and 8/16/95, Form 22 Wage Chart were all submitted into evidence without further authentication.
6. The issues to be determined by the Commission are:
a. Whether plaintiff has sustained a compensable occupational disease as a result of her employment with defendant; and
b. If so, what are the compensable consequences?
***********
The Full Commission adopts the findings of fact found by the Deputy Commissioner as follows:
FINDINGS OF FACT
1. Plaintiff is a female who was born on August 27, 1976. She is a high school graduate.
2. Plaintiff began working for defendant-employer through a temporary service in November 1994 as a dry filling operator. She was hired as a full time employee by defendant-employer in February 1995. Plaintiff was given a physical examination by Charlene Freeman, R.N., which included various hand motions. This examination indicated no significant medical impairment. Shortly thereafter, plaintiff was moved to the position of wet filling operator.
3. In her original position as a dry filling operator, plaintiff performed several different tasks. She rotated between four stations, performing tasks at each one for approximately five to seven minutes per station. These tasks included putting tips on IV bags, placing the bags in pouches and setting them on a conveyor belt.
4. Plaintiff's position as a wet filling operator consisted of three stages: Printing IV bags, filling and plugging these bags, and doing roll outs, where defective bags were removed. Plaintiff was required to fill at least 18 bags per minute, and generally did 20 to 24 per minute. Although this position involved repetitive hand motions, the evidence does not establish that forceful gripping was required.
5. Sometime during early 1995, no later than March, plaintiff began a weight training program. This program included upper body exercises such as shoulder presses and chest presses.
6. During her employment with defendant in the spring of 1995, plaintiff was also using birth control pills. Despite the use of these contraceptives, plaintiff became pregnant around April or May. However, unaware that she was pregnant, she continued on the birth control pills during the early months of her pregnancy.
7. On May 22, 1995, plaintiff reported to the plant nurse with complaints of right hand numbness that had been going on for a few weeks. She returned on June 14, 1995, with complaints of numbness and pain in her fingers. Plaintiff was placed on modified duty pending further evaluation.
8. Defendant-employer arranged for plaintiff to be seen by Dr. Andrea Stutesman on June 20, 1995. Dr. Stutesman examined plaintiff and nerve conduction studies were done on the right hand. The nerve conduction studies showed marked carpal tunnel syndrome. Dr. Stutesman also diagnosed pectoralis minor syndrome, a circulatory condition caused by tight pectoralis muscles, which can cause symptoms similar to carpal tunnel syndrome.
9. Dr. Stutesman was of the opinion that plaintiff's hand symptoms and condition were causally-related to plaintiff's weight lifting program, and so advised plaintiff. Dr. Stutesman's opinion is that plaintiff had carpal tunnel syndrome prior to her employment with defendant. While plaintiff's employment duties could have aggravated her pre-existing carpal tunnel syndrome, her weight lifting and use of birth control pills could also be aggravating factors. Likewise, plaintiff's developing pregnancy could aggravate her carpal tunnel syndrome.
10. Dr. Stutesman did not believe plaintiff's job involved the type of repetitive, forceful motion generally associated with the development of carpal tunnel syndrome. She was unable to give an opinion that plaintiff's job duties placed her at an increased risk of developing carpal tunnel syndrome as compared to the general public.
11. Although defendants paid for plaintiff's initial evaluation with Dr. Stutesman, a determination was subsequently made to deny the claim, and no additional medical and no compensation benefits were paid.
12. Plaintiff continued to work light duty until mid-August, 1985, at which time she went out on maternity leave. Plaintiff continued to be out of work on unpaid medical leave until March 13, 1996. At that time she was terminated effective February 2, 1996, pursuant to company policy, since her leave time exceeded the time period she had actually been working for defendants.
13. The greater weight of the evidence shows that plaintiff had pre-existing carpal tunnel syndrome, which was not symptomatic and did not interfere with her work for Defendant until about May 22, 1995. Several factors, including plaintiff's weight lifting program and her use of birth control pills, may have aggravated her carpal tunnel condition to the point she developed her symptoms.
14. The evidence fails to establish, by the greater weight, that plaintiff's job duties while in defendants' employment, were a significant contributing factor to the development of her carpal tunnel syndrome.
15. The evidence fails to establish, by the greater weight, that plaintiff's employment with defendants placed her at a greater risk of developing carpal tunnel syndrome compared to the general public not so exposed.
***********
Based upon the foregoing findings of fact, the full Commission concludes as follows:
CONCLUSION OF LAW
Plaintiff has failed to prove, by the greater weight of the evidence, that she sustained a compensable occupational disease, carpal tunnel syndrome, as a result of her employment with defendant-employer. The evidence fails to establish that plaintiff's carpal tunnel syndrome was caused or aggravated by her job duties or that plaintiff's job duties exposed her to a greater risk of developing carpal tunnel syndrome, than the general public not so exposed. N.C.G.S. § 97-53-(13); Booker v. Duke Medical Center, 297 N.C. 458 (1979).
***********
Based upon the foregoing findings of fact and conclusions of law, the undersigned affirms the holding of the Deputy Commissioner and enters the following:
AWARD
1. Under the law, plaintiff's claim must be and is hereby DENIED.
2. Each side shall pay their own costs, except that defendants are responsible for the expert witness fees previously approved.
S/ ________________________ CHRISTOPHER SCOTT COMMISSIONER
CONCURRING:
S/ ______________________ DIANNE C. SELLERS COMMISSIONER
DISSENTING:
S/ ______________________ THOMAS J. BOLCH COMMISSIONER
Prior to being hired full time, plaintiff was given a physical examination by Charlene H. Freeman, the defendant's nurse, which showed no problems in her hands. Once hired full time, plaintiff was moved from a position as dry filling operator to a wet filling operator. Plaintiff remained a wet filling operator with defendants until she was placed on light duty by defendant employer because of the problems with her hands.
Plaintiff's position as a wet filling operator consisted of three (3) stages: printing bags, filling and plugging bags, and doing roll outs. She remained at each stage about twenty (20) minutes per hour, and that while filling and plugging, she filled approximately twenty-two (22) to twenty-five (25) bags per minute using the same hand and wrist motion each time she filled a bag. This equates to plaintiff using the same hand motion 400 to 500 times per hour or 3500 to 4000 times per shift.
In November 1994 plaintiff experienced some pain in her hands a few weeks after starting her job with the defendants. At that time, she was given splints to wear and advised to wrap her hands like most other employees did. When she began wearing splints and wrapping her hands before work, she did not experience any further problems until March 1995.
After being moved to wet filling operator, she first began experiencing pain, numbness or tingling in her fingers in early March, but did not report this condition to the plant nurse until May 22, 1995. Plaintiff had delayed reporting the condition to the nurse because she thought it would get better, as it had done in November.
Plaintiff continued to work her regular job until she was placed on light duty June 14, 1995 because of the pain and numbness in her hands and finger. In the employer letter of June 14, plaintiff was specifically instructed not to engage in any repetitive motion. She was then sent by the defendants to see Dr. Andrea Stutesman on June 20, 1995 for evaluation of her hand pain and numbness. Dr. Stutesman continued plaintiff on light duty pending the results of nerve conduction studies, which were ordered. The studies were performed on her right hand and showed marked carpal tunnel syndrome.
Dr. Stutesman's initial diagnosis prior to obtaining nerve conduction studies was pectoralis minor syndrome. Following the nerve conduction studies, her diagnosis changed to severe carpal tunnel syndrome and pectoralis minor syndrome. The symptoms of pectoralis minor are the same as those of carpal tunnel, yet it is possible for both to be present at the same time as in this case.
Dr. Stutesman further agreed that plaintiff's position with the defendant may have caused the pectoralis minor syndrome, based on her observations of the job being performed. Although the doctor indicated a simple exercise program would resolve the pectoralis minor, the defendant never offered to provide plaintiff with any treatment associated with this condition. They did however, schedule the plaintiff to have carpal tunnel release surgery performed.
Dr. Stutesman recommended surgery to correct the carpal tunnel and continued plaintiff on light duty work until surgery was completed. Surgery was authorized and scheduled for July 26, 1995, and was to be performed by Dr. Steven Siciliano. On July 24, the surgery was canceled upon discovery that plaintiff was pregnant and upon determination that she was no longer a surgical candidate because of the pregnancy.
According to Dr. Stutesman, plaintiff was no longer a surgical candidate because of the danger surgery presented to the existing fetus. At this time, Dr. Stutesman informed defendant employer that plaintiff could not return to a repetitive motion job until surgery was completed. No further treatment was ever offered to the plaintiff.
Since plaintiff had used up her allotted "modified duty time" but was still restricted to light duty, the defendants forced plaintiff to go out on maternity leave rather than provide her with additional light duty. Plaintiff was on maternity leave as indicated on her attendance record from August 21, 1995 through November 10, 1995 at which time the maternity benefits she had been receiving were stopped. These benefits were paid as evidenced by plaintiff's pay records by direct deposit by defendant to plaintiffs credit union account with defendant's credit union.
On November 1, 1995, plaintiff's maternity physician, Dr. Yeagley, wrote plaintiffs return to work slip stating that she was not restricted from working as a result of her pregnancy. Upon receipt of this information, the defendant contacted Dr. Stutesman, requesting if plaintiff was able to return to work. Dr. Stutesman answered their inquiry in a letter dated November 8, 1995, indicating that Ms. Jones was still unable to return to a repetitive motion job.
Shortly thereafter, plaintiff was advised by defendant that the time period she had been out thus far was not the result of her pregnancy, but rather due to her pre-existing carpal tunnel syndrome. Plaintiff's attendance record reflects this change in that prior to November 11, plaintiff was absent on "ML" or maternity leave. After November 11, plaintiff's attendance record indicates her absence is "SW" or sick without pay.
At this same time, someone from defendant employer, without notice to the plaintiff, withdrew all maternity benefits from plaintiff's credit union account.
After contacting defendant on February 8, 1996, plaintiff was terminated March 13, 1996 with an effective date of February 2, 1996 for being out on medical leave longer than she had been employed with the defendant. However, plaintiff went out on leave on August 14, 1995 and was therefore had not been absent for six months by February 2, 1996.
Plaintiff has retained other employment as of June 6, 1996 working for a telemarketing company, and has been employed since this date. Her current employment does not require any repetitive motion with her hands and have not caused her symptoms to increase. She does continue to have numbness and tingling in her hands and would like to receive further medical treatment.
Decisions of a Deputy Commissioner and the Industrial Commission must be supported by competent evidence contained in the record. Click v. Freight Carriers, 300 N.C. 164, 265 S.E.2d 389 (1980). In reviewing the findings made by a deputy commissioner, the Full Commission may review, modify, adopt or reject the findings of fact made by the hearing commissioner. Watkins v. Wilmington, 290 N.C. 276, 225 S.E.2d 577 (1976), Godley v. Hackney Sons, 65 N.C. App. 155, 308 S.E.2d 492 (1983).
Carpal tunnel syndrome is considered a compensable occupational disease under N.C. Gen. Stat. § 97-53(13) if it is shown to be (1) causally related to the employment and (2) characteristic of and peculiar to a particular occupation as distinguished from an ordinary disease of life to which the general public is equally exposed outside of the employment. Booker v. Duke Medical Center, 297 N.C. 458, 256 S.E.2d 189 (1979).
The unchallenged evidence from the plaintiff was that she was performing a highly repetitive motion job with the defendant. She had minor pains in her wrists in November 1994, which resolved. She continued to work with no further complaints until March of 1995. Since the pain had gone away in November, she elected to see if it would go away again. When the symptoms did not go away, she reported her injury to the nurse, who placed her on light duty and sent her to Dr. Stutesman for evaluation. Nerve conduction studies showed she had marked carpal tunnel syndrome. Because of the degree of severity, she was scheduled for right carpal tunnel release surgery. The surgery was subsequently canceled when it was discovered that she was pregnant. At that time, July 24, 1995, plaintiff was only a few weeks pregnant. Dr. Stutesman would not allow plaintiff to return to her job because of its repetitive nature and the dangers of aggravating the condition.
The Deputy Commissioner and a majority of the reviewing panel of the Full Commission found that plaintiff's pregnancy was a factor which aggravated her carpal tunnel syndrome. This finding is error. The date the decision of compensability should be based upon is May 22, 1996, when plaintiff was no longer able to perform her job without problems because of her condition, later diagnosed as carpal tunnel syndrome. Plaintiff did not discover she was pregnant until just before her scheduled surgery in July, when she was only a few weeks pregnant. She was not pregnant when the symptoms of carpal tunnel syndrome caused her to seek medical help.
Dr. Stutesman testified that any symptoms of carpal tunnel due to pregnancy do not appear in the first trimester but rather the second and third trimester. Therefore, although the pregnancy might cause the carpal tunnel to worsen during the pregnancy, it is highly unlikely the pregnancy aggravated plaintiffs condition prior to May 22, 1996. Dr. Stutesman testified that if carpal tunnel develops as a result of pregnancy, the symptoms will cease once the pregnancy is concluded. She further indicated that she did not believe the pregnancy was a factor in Ms. Jones' condition because she was not pregnant when she began having complaints. The Deputy Commissioner and the majority of the reviewing panel found otherwise, contrary to all evidence presented.
The Deputy Commissioner also found that birth control pills could have aggravated plaintiff's condition. However, Dr. Stutesman opined that there are some people in which this medicine does not exacerbate carpal tunnel. In fact, she admitted it was possible the birth control pills did not affect plaintiff's carpal tunnel at all. Because of these inconsistencies between different people, Dr. Stutesman could not give an opinion regarding birth control as a cause or aggravation of plaintiff's carpal tunnel. Without an opinion to a reasonable degree of medical certainty, the evidence regarding plaintiff's use of birth control and its possible affects should not have been considered and is also error.
Finally, the majority also base their decision on the finding that plaintiff had engaged in a weight lifting program around the same time she first complained about the pain in her hands. Plaintiff testified that her weight training program consisted only of lower body workouts and that she had not performed any weight training on her upper body or upper extremities, because of the problems she was having with her hands at work. The only evidence to contradict the plaintiff are statements made by Dr. Stutesman, who admitted that although plaintiff told her about several specific instances of pain at work, she never related any specific complaints of pain or numbness while weightlifting.
The doctor agreed that if weight training were a cause of the symptoms, plaintiff would have experienced those symptoms while engaging in that activity. Additionally, Dr. Stutesman agreed that she had assumed plaintiff was using the upper body in her weightlifting and that she did not have any notation in her notes or records to indicate what type of weightlifting plaintiff was doing. Finally, the doctor agreed that if the plaintiff had not used her upper body in weightlifting, she would no longer be of the opinion that the weightlifting caused plaintiff's condition.
Dr. Stutesman agreed that it was possible for a person to develop carpal tunnel from working the same job as the plaintiff. She further gave her opinion to a reasonable degree of medical certainty that plaintiff's job with the defendant could have aggravated her carpal tunnel syndrome.
The evidence in this case may support a finding that plaintiff's condition pre-existed her employment with defendants. However, the aggravation of a pre-existing condition is a compensable injury under the Workers' Compensation Act. Wilder v. Barbour Boat Works, 84 N.C. App. 188, 352 S.E.2d 690 (1987). Dr. Stutesman testified that in her opinion, based on the severity of her condition, plaintiff most likely had an undiagnosed pre-existing condition of carpal tunnel. She went on to testify that given the degree of nerve damage, the plaintiff's condition was likely aggravated by some factor which occurred between the first complaints in November 1994 and June 1995, when she was diagnosed.
The defendants argue this aggravating factor was either the weight training program, plaintiff's pregnancy, or plaintiff taking birth control medicine. Although these arguments have been specifically addressed above, Dr. Stutesman testified that although it was possible those factors aggravated her condition, plaintiff's job with the defendant also exacerbated plaintiff's existing carpal tunnel. Therefore, even assuming plaintiff did have a preexisting undiagnosed carpal tunnel; her last injurious exposure prior to being diagnosed with carpal tunnel was while she was working for the defendant. The evidence presented clearly demonstrated that plaintiff developed carpal tunnel syndrome as a direct result of the repetitive motion job with the defendant, or in the alternative, had a pre-existing condition which was aggravated by her job with the defendant.
The second requirement for a compensable occupational disease is that the plaintiff's employment placed her at a greater risk of exposure to that condition than the general public. Plaintiff presented evidence of increased risk by showing the frequency of other employees of the defendant in the same position that developed compensable carpal tunnel syndrome.
Dr. Stutesman testified that if evidence was presented which demonstrated a definite correlation between the job plaintiff performed and the development of carpal tunnel in employees performing that job, then she would agree that it was likely that plaintiffs condition was either caused by or aggravated by her job with the defendants. Plaintiff submitted Defendant's answers to plaintiffs discovery requests which demonstrate that 56 employees in the filling operator position over the previous five years had workers' compensation claims as a result of carpal tunnel syndrome which were either admitted as compensable by defendant or determined to be compensable by the Industrial Commission. In other words, it has been conclusively admitted that these 56 cases were caused or exacerbated by the plaintiff's job.
Dr. Stutesman testified that although she has treated three to four thousand (3000-4000) cases of carpal tunnel only 5% of those cases were not work related. By examining the statistics provided 6.63% of the employees working in the same position as plaintiff developed carpal tunnel during the last five years. Compared to Dr. Stutesman's 5% of non-work related cases since 1986. Statistically, this evidence clearly shows an increased risk of developing this condition by plaintiff's job.
When dealing with an occupational disease, determination of compensability is based upon the last injurious exposure. Statton v Metro Air Conditioning, 117 N.C. App. 226, 450 S.E.2d 550 (1994). "The Industrial Commission has an obligation to make specific findings of fact and conclusions of law determining each issue which is raised by the evidence and upon which plaintiffs right to compensation depends." Id. at p. 553. In the case at bar, the defendants raised the issues that weight lifting, pregnancy, and birth control were aggravating factors of plaintiff's carpal tunnel syndrome. Plaintiff argues that these factors had no impact on plaintiffs condition, and that even if they did have an impact, plaintiff's last injurious exposure was the employment of defendant. With this issue contested before the Commission, there is an obligation on the Commission to decide all matters in controversy between the parties. Id. at p. 553.
The majority failed to make any findings of fact or conclusions of law as to what or when was plaintiff's last injurious exposure. In fact, the evidence presented supports a finding that plaintiff's last injurious exposure was with defendant. The plaintiff testified that she did not engage in weight lifting with her upper body, and she was not pregnant as of May 22, 1996. She further testified that she had been on birth control pills for some time without any symptoms. Given that Dr. Stutesman was assuming plaintiff utilized her upper body in weight lifting, there is no credible evidence to refute plaintiff's testimony. Based upon the evidence presented and Statton v. Metro Air Conditioning, the decision must be reversed.
My vote is to reverse.
This 25th day of August 1998.
S/ ________________________ THOMAS J. BOLCH COMMISSIONER