Opinion
CLAIM NO. E500084
OPINION FILED APRIL 22, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE RANDY SHOCK, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by HONORABLE DIANE GRAHAM, Attorney at Law, Fort Smith, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an Administrative Law Judge's opinion filed July 23, 2002. The Administrative Law Judge found, inter alia, that the claimant failed to prove that medical treatment for her hands after January 24, 2001 was reasonably necessary for the claimant's compensable injury. After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.
I. HISTORY
Brenda Pierce, age 40, testified that she left school after the tenth grade but later obtained a general education diploma. Ms. Pierce began working for the respondent-employer in October 1993, constructing furniture on an assembly line. The claimant agreed that she was earning $5.60 hourly in November 1994. The parties stipulated that the claimant sustained compensable injuries to her left shoulder and hands on November 5, 1994.
The following impression resulted from an electromyogram report dated December 1, 1994:
1. This is an abnormal study, indicating bilateral carpal tunnel syndrome with moderately severe median nerve neuropathies.
2. Also noted was the presence of bilaterally abnormal ulnar sensory responses. The combination of this with carpal tunnel syndrome does raise the possibility of underlying peripheral neuropathy.
Dr. Claude L. Martimbeau reported on December 20, 1994:
The patient has had an EMG which reveals signs of carpal tunnel syndrome, both sides, moderate to severe. There is a slight change over the ulnar nerve. The diagnosis is bilateral carpal tunnel syndrome with possible ulnar canal syndrome. The patient will need, very soon, a carpal tunnel release.
The claimant at first testified that she did not return to work for the respondent-employer following the compensable injuries, but agreed under cross-examination that she worked for the respondents until January 11, 1995. Dr. Martimbeau performed a "Left carpal tunnel release" in January 1995 and discharged the claimant to return to work in February 1995.
Dr. Martimbeau diagnosed "Bursitis of the left shoulder" on February 21, 1995, and "Chronic impingement syndrome, left shoulder" in June 1995. Dr. Martimbeau performed an "Acromioplasty left shoulder" in August 1995, and he pronounced maximum medical improvement with regard to the claimant's left shoulder in October 1995.
In November 1995, Dr. Martimbeau assigned "a 4% impairment of her whole body following the Guide to the Evaluation of Permanent Impairment." The respondents accepted and paid the 4% rating.
Another electromyogram report was entered on December 20, 1995, with the following impression:
1. There is evidence of generalized axonal sensory neuropathy involving both median nerves. The amplitude loss is quite similar to the study noted of 12/1/94, but the latencies are much improved and essentially normal on the left side and are much improved on the right side but still mildly abnormal. This suggests the possibility of an axonal neuropathy involving both nerves, which could be related to a chronic carpal tunnel syndrome with inability to reinnervate the nerve or it may also implicate the presence of an underlying peripheral neuropathy. Again, compared to the previous study, the latencies are much improved bilaterally but still mildly abnormal on the right. This could implicate the presence of a persistent carpal tunnel syndrome on that side.
2. There is evidence of marked prolongations of both ulnar sensory latencies; however, the current amplitudes are much improved compared to the previous study. This suggests the more likely probability of a demyelinating or compressive disorder involving both these nerves rather than an axonal neuropathy at the wrist or elbow. This study is not conclusive for definite compression of the ulnar nerve at Guyon's canal at both wrists because the motor studies are still normal and the needle exam did not show active denervation. The constellation of findings along with the patient's symptoms does raise this as a possibility. The current study did not include the evaluation of dorsal ulnar cutaneous sensory nerves. If surgery is contemplated, a brief follow-up study to evaluate this portion of the nerve could be performed. If the dorsal ulnar cutaneous sensory nerve findings are normal, this would be strongly suggestive of pathology at the wrist.
3. The constellation of findings could implicate the presence of a sensory motor polyneuropathy with both axonal and demyelinating component such as that seen in diabetes as well as other disorders but is not diagnostic and still could be indicative of underlying traumatic pathology at the wrist.
Dr. Martimbeau performed a "Right carpal tunnel release and right ulnar nerve release" in February 1996. Dr. Martimbeau performed a "Left ulnar nerve decompression" in April 1996. Dr. Martimbeau discharged the claimant p.r.n. on April 29, 1996.
The claimant testified that she began working for another employer, Sharon's Little Angels Day Care, on November 3, 1996. The claimant testified that she began experiencing renewed bilateral wrist pain during this employment. The claimant attributed this pain to picking up children and keying on her computer at home.
Dr. Martimbeau diagnosed "Bursitis of left shoulder" on March 18, 1997.
Dr. Martimbeau reported on November 24, 1999:
The patient is a thirty-seven year old lady who was complaining of bilateral hand pain. The patient started a few months ago to have some dysesthesia and tingling in her fingers and the right side is worse. It is also intermittent at night but it is worse when she works on a computer. The patient has had five or six years ago bilateral carpal tunnel release with good improvement.
Dr. Martimbeau diagnosed "Recurrence of bilateral carpal tunnel syndrome" and ordered diagnostic testing. The following impression resulted from a neurodiagnostic report dated November 29, 1999:
1. Bilateral slowing of the median nerves at the wrist, in the sensory portions which is compatible with findings in a successful carpal tunnel surgery. The motor nerve conduction is normal and the findings in the sensory portions are very mild.
2. The EMG portion of the test is normal; there is no evidence of a radiculopathy or myopathy.
Dr. Martimbeau diagnosed "Impingement syndrome left shoulder" in December 1999.
Dr. Martimbeau reported on December 7, 1999:
The patient has had an EMG that shows a bilateral slowing of the median nerve of the wrist in the sensory portion which is compatible with findings in the previous carpal tunnel surgery. The patient is still having dysesthesia and mild hypoesthesia of both hands.
Since the findings are very mild I do recommend for her to wait but if there is any signs of aggravation or symptoms of pain or numbness that are getting worse then I will repeat the EMG and it should be in a period of 4-6 months from now.
The claimant presented to Dr. Martimbeau on May 2, 2000:
A 38-year-old lady who is complaining of right elbow pain. At times she has pain over the left shoulder but now her right elbow is worse. It hurts all the time and is worse every times (sic) she tries to push, pull, or lift.
Dr. Martimbeau diagnosed "tendinitis." On May 17, 2000, Dr. Martimbeau diagnosed "Tendinitis, right wrist, involving the carpi ulnaris." Examination of the claimant's right wrist on May 31, 2000 showed "crepitus with sensation of popping in flexion/extension with ulnar deviation and pain." The impression from an MRI of the right wrist dated June 10, 2000 was "Unremarkable postsurgical MRI of the right wrist."
Dr. Martimbeau examined the claimant's right elbow in July 2000 and diagnosed "epicondylitis." Dr. Martimbeau again diagnosed "epicondylitis" on January 24, 2001 after the claimant complained of bilateral elbow pain with more pain on the right. The respondents apparently controverted further benefits at this time.
Dr. Martimbeau reported on October 24, 2001:
A 39-year-old lady who is complaining of dysesthesia with pain in both hands, the left being worse. She is having tingling and numbness of the index finger. It has become worse over the last few weeks with no new specific injury or different type of work.
Dr. Martimbeau diagnosed "Recurrence of carpal tunnel syndrome, both hands" and ordered diagnostic testing. The following impression resulted from a neurodiagnostic report dated November 6, 2001:
1. Bilateral carpal tunnel syndromes, the right is moderate to severe, the left is mild.
2. There is no evidence of a diffuse neuropathy.
3. Compared to the previous there appears to be a recurrent carpal tunnel syndrome on the right.
Dr. Martimbeau reported on November 19, 2001:
Status post bilateral hand pain with dysesthesia. She has had an EMG that shows bilateral carpal tunnel syndrome, right worse than the left.
The patient is going to wait, but when ready she will have a left carpal tunnel release.
Ms. Pierce claimed entitlement to additional worker's compensation. The claimant contended that she had sustained wage-loss disability exceeding her 4% anatomical impairment. The claimant contended that she had sustained a "recurrence" of her bilateral carpal tunnel syndrome, for which she was entitled to reasonably necessary medical treatment. The respondents contended that they had paid all benefits for which the claimant was entitled. The respondents contended that the claimant's complaints were not the result of her November 5, 1994 injury. The respondents also contended there had been an "independent intervening cause."
A hearing was held before the Commission on May 23, 2002. The claimant agreed that she remained employed at the day care, and that she was earning $7.40 hourly.
The Administrative Law Judge found that the claimant failed to prove she was entitled to additional benefits. The claimant appeals to the Full Commission.
II. ADJUDICATION
A. Additional medical treatment
Employers must promptly provide for injured employees such medical treatment which is reasonably necessary for the compensable injury. Ark. Code Ann. § 11-9-508(a). The claimant has the burden of proving by a preponderance of the evidence that she is entitled to additional medical treatment. Beatty v. Ben Pearson, Inc., Workers' Compensation Commission D612291 (Feb. 17, 1989).
In the present matter, the Full Commission affirms the Administrative Law Judge's finding that the claimant failed to prove she was entitled to additional medical treatment after January 24, 2001. The parties stipulated that the claimant sustained compensable injuries to her left shoulder and "hands" on November 5, 1994. The parties did not explicitly stipulate that the claimant's injury to her hands was in the form of carpal tunnel syndrome; however, Dr. Martimbeau did diagnose bilateral carpal tunnel syndrome shortly after the admittedly compensable injury. The claimant underwent a left carpal tunnel release in January 1995, a right carpal tunnel release in February 1996, and a left ulnar nerve decompression in April 1996.
Dr. Martimbeau diagnosed "recurrence" of the claimant's bilateral carpal tunnel syndrome in October 2001. The dissent cites this diagnosis and extrapolates that Dr. Martimbeau must have meant that the claimant's problems in 2001 and beyond were related to the claimant's November 5, 1994 compensable injury. The dissent ponders whether Dr. Martimbeau employed the term "recurrence" in "the legal sense" or "the medical sense."
The injured party bears the burden of proving that she is entitled to benefits, and she must establish that burden by a preponderance of the evidence. Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W.3d 543 [ 989 S.W.2d 543] (1999). A recurrence is not a new injury but merely another period of incapacitation resulting from a previous injury. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). A recurrence exists when the second complication is a natural and probable consequence of a prior injury. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). The basic test is whether there is a causal connection between the two episodes. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). The determination of whether a causal connection exists is a question of fact for the Commission to determine. Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998).
In the present matter, the Full Commission finds that the claimant failed to prove by a preponderance of the evidence that her continued problems were a natural and probable consequence of the compensable injury. The parties stipulated that the claimant sustained a compensable injury to her "hands" on November 5, 1994. The claimant subsequently underwent a left carpal tunnel release, left shoulder acromioplasty, right carpal tunnel release, and left ulnar nerve decompression. The claimant began working for another employer in November 1996 and also began reporting renewed bilateral wrist pain. The claimant did not attribute these symptoms to her compensable injury; rather the claimant reported that her wrists hurt after picking up children and keying on her home computer. A neurodiagnostic reported arranged by Dr. Martimbeau in November 1999 showed "Bilateral slowing of the median nerves at the wrist, in the sensory portions which is compatible with findings in a successful carpal tunnel surgery. The motor nerve conduction is normal and the findings in the sensory portions are very mild." Additionally, an EMG was "normal." Based on these findings, the record does not indicate that the claimant sustained a compensable recurrence of her prior injury.
Dr. Martimbeau diagnosed "Recurrence of carpal tunnel syndrome, both hands" in October 2001. The Commission is authorized to accept or reject medical opinion, and we are authorized to determine its medical soundness and probative force. Hill v. Baptist Medical Center, 74 Ark. App. 250, 57 S.W.3d 735 [ 48 S.W.3d 544] (2001). Based on the entire record, we disagree with the dissent that this diagnosis of "recurrence" means that the claimant's condition was causally related to her 1994 injury. The preponderance of evidence before us indicates otherwise. The claimant attributed her renewed pain to picking up children with a new employer, and to her computer activities at home. The record does not show a causal relation between the claimant's renewed symptoms and the 1994 compensable injuries. Nor did Dr. Martimbeau "unequivocally state" that the claimant had sustained a recurrence of her initial compensable injuries. But even if Dr. Martimbeau did mean "recurrence . . . in the medical sense," as the dissent implies, we need not base a decision on how the medical profession characterizes a given condition, but we must base our decision on factors germane to workers' compensation law. Weldon, supra.
The Full Commission finds that the claimant failed to prove by a preponderance of the evidence that her condition in January 2001 was a natural and probable consequence of the claimant's November 5, 1994 compensable injury. We find that the dissent's attempt to causally link the claimant's "recurrence" to her compensable injury is based on speculation and conjecture, which can never be substituted for probative evidence. Dena Constr. Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1980).
Based on our de novo review of the entire record, the Full Commission finds that the claimant failed to prove that medical treatment subsequent to January 24, 2001 was reasonably necessary for her compensable injury. We find that the claimant failed to prove she was entitled to wage-loss disability. We find that the claimant failed to prove a compensable injury to her elbows, and that the claimant failed to prove entitlement to temporary partial disability compensation. Finally, the Full Commission finds that the claimant failed to prove that her continued symptoms constituted a "recurrence" of her 1994 compensable injury. We therefore affirm the opinion of the Administrative Law Judge. This claim is denied and dismissed.
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
______________________________ JOE E. YATES, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion, which affirms the decision of the Administrative Law Judge that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional benefits.
The majority has concluded that claimant's current carpal tunnel syndrome is not a recurrence of her prior admittedly compensable carpal tunnel syndrome. This conclusion is reached despite the fact that Dr. Martimbeau, on two separate occasions, diagnosed the claimant with a recurrence of her carpal tunnel syndrome first diagnosed in 1994. See Respondents' Exhibit One, pages 57,69.
Apparently, the majority has concluded that, while Dr. Martimbeau did diagnose claimant with recurrence, he did not mean that the claimant's 1994 carpal tunnel syndrome had recurred in the legal sense. However, Dorland's Illustrated Medical Dictionary defines a "recurrence" as "the return of symptoms after a remission." Therefore, if it is assumed that Dr. Martimbeau was using the term "recurrence" in the medical sense, he must have meant that the carpal tunnel syndrome he diagnosed in 2001 was a return of the condition he first diagnosed in 1994. Had it been Dr. Martimbeau's opinion that the claimant's carpal tunnel syndrome observed in 2001 bore no causal relation to her 1994 carpal tunnel syndrome, it would seem that the use of the term "recurrence" would be misplaced.
In support of their conclusion that "an attempt to causally link [Dr. Martimbeau's diagnosis of recurrence in 2001] to the claimant's 1994 compensable injury would be based on improper speculation and conjecture," the majority first notes that the claimant began working for a new employer in November 1996 and began reporting renewed bilateral wrist pain. The majority then states that "the claimant did not attribute these [renewed] symptoms to her compensable injury; rather the claimant reported that her wrists hurt after picking up children and keying on her home computer." However, if the claimant's subjective belief as to the etiology of her symptoms is deemed relevant, then I would note that my review of the evidence does not indicate that claimant "attributed" her renewed problems entirely to picking up children in her new job, or to typing on her home computer. Rather, I interpret claimant's testimony to indicate that claimant simply began to notice symptoms once again after engaging in these activities. The mere fact that symptoms became noticeable after claimant engaged in certain physical activities cannot, in my estimation, reasonably support a conclusion that the symptoms bore no causal relation to a prior injury which initially caused the very same symptoms. Were the Commission to adopt such reasoning in every case of alleged recurrence of injury, then it would seem that the claimant's ability to prove a recurrence would be severely limited. It would seem to be the rare case indeed in which there is absolutely no subsequent activity which brought about the recurrence of symptoms.
Second, the majority states that the electrodiagnostic examination performed in November 1999 was essentially normal. However, I would point out that it is not legally necessary for the claimant to show that she was constantly symptomatic in order to prove that her current carpal tunnel syndrome is a recurrence of her 1994 compensable injury. The very definition of recurrence is another period of incapacitation resulting from a previous injury. See Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996).
In summary, I find that the claimant's treating physician since 1994, Dr. Martimbeau, unequivocally stated that the claimant's current carpal tunnel syndrome constitutes a recurrence of her 1994 compensable carpal tunnel syndrome. Unlike the majority, I do not conclude that Dr. Martimbeau was using the term "recurrence" in a sense which is incompatible with the legal definition of that term. I find that Dr. Martimbeau's use of the term "recurrence" indicates that in his opinion, the claimant's current problems relate back to her initial 1994 compensable injury, and thus that claimant has proven that her current problems are the natural and probable consequence of her compensable injury.
For these reasons, I respectfully dissent.
_______________________________ SHELBY W. TURNER, Commissioner