Opinion
CLAIM NO. F201311
OPINION FILED JUNE 17, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant appeared PRO SE.
Respondents represented by HONORABLE ANDREW IVEY and HONORABLE MIKE ROBERTS, Attorneys at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal an Administrative Law Judge's opinion filed September 27, 2002. The Administrative Law Judge found that the claimant sustained "compensable bilateral carpal tunnel syndrome." The Administrative Law Judge also found that the compensable injury "aggravated the claimant's preexisting degenerative cervical disc disease." After reviewing the entire record de novo, the Full Commission reverses the opinion of the Administrative Law Judge.
I. HISTORY
Debra Lynn Yearwood, age 47, testified pro se that she became employed with Wal-Mart in about October 1999. Ms. Yearwood testified that she worked in inventory control, which involved stocking and lifting freight. The claimant testified that she was working as an overnight stocker in May 2001. The Administrative Law Judge examined the claimant:
Q. And, what duties did you do during this time frame?
A. Wal-Mart calls it stocking. It has a lot of freight handling involved in it, a lot of heavy lifting, a lot of repetitive, heavy work going up and down the ladders, carrying lunch containers on what would be my shoulder. I would have to bend down and pick up and hold and carry up the ladder and carry freight up a ladder, put it in a riser. Take freight out of a riser, bring it down, work pallets with freight. Some of it very heavy. Some of it ranging in different sizes, shapes and weights. Cutting down cardboard. This could also be repetitive at times when you had the case cut, say like coat hangers and I would stand there and repetitively case cut every single one of them and carry them up top the risers stacking them two or three or four high, depending on the size. . . .
Q. Okay, you mentioned at some point the pain became so severe, your symptoms became so severe that you finally sought medical treatment?
A. Yes. . . . The first time I sought medical treatment was May 14th, I went to Dr. Bay. . . .
The claimant presented to her family doctor, Dr. Kevin D. Bay, on May 14, 2001:
Complains about numbness in the right arm and hand which she cannot characterize real well for me. . . . Some pain in the right forearm and upper arm as well. She relates this to having to do a lot of heavy lifting at her work.
Dr. Bay placed the claimant in a nocturnal splint, prescribed medication, and scheduled electrodiagnostic testing. The claimant testified that Dr. Bay gave her a note for light duty, and that she gave the note to the employer, but there is no such light-duty note in the record. The claimant testified that she filed a claim for Dr. Bay's treatment with her private health insurance. The claimant testified that she continued to perform her regular employment duties.
A nerve conduction study dated May 16, 2001 gave the following impression:
The findings of this study are consistent with moderately severe bilateral carpal tunnel syndrome, right greater than left.
The claimant testified, "In September it was one of the things that motivated me towards not filing a workman's comp case was that I was promised a dollar an hour raise." The claimant continued to work full duty, and agreed with the Administrative Law Judge that she experienced pain in her wrists bilaterally. The claimant testified that she was suffering from "Vertigo, headaches, a lot of pain in my arm and my shoulder. But, my main concern at that point, I could have even cared less of my carpal tunnel was the headaches and the vertigo were so bad that I couldn't have cared less about the carpal tunnel."
Audrey Ramsey, a support manager for Wal-Mart, testified that the claimant never reported a work-related injury to her. Dustin Blankenship, the claimant's direct supervisor, testified that the claimant never reported a work-related injury to him. Mr. Blankenship also testified that the respondent-employer had no record of the claimant being placed on light duty.
The claimant testified:
Q. So, what happened on September 30th?
A. Okay. I came in, the paint machine was broken. . . . I informed management that I could fix that. . . . It took me about I guess to the middle of the afternoon to get the machine cleaned up. . . . There were a lot of customers requesting to have bikes. I had vertigo. I did not want to get them down. I called for a stockman. I called for an assistant repeatedly. I had customers screaming at me. . . .
Q. Did you finish your shift that day?
A. Yes, sir. . . .
Q. What transpired at that time?
A. I was very burned out. I was very agitated. I had a dispute with Ms. Audrey, several incidents with Ms. Audrey, actually disagreements on different subjects. . . . They told me that if I left that it was insubordination. . . .
Q. Okay. So, as a result of that day your employment was terminated?
A. Yes.
The claimant testified that she would have continued to work had she not been terminated. The claimant also testified that she was denied unemployment benefits.
Dr. Bay reported on January 25, 2002, "She continues to have problems with headaches and dizziness although she has less of the right arm pain." Dr. Bay arranged an MRI of the cervical spine, which was taken on January 25, 2002, with the following impression:
1. Degenerative disc disease with posterior osseous ridging with associated annular disc bulge at the C4-5 and C5-6 levels as above. Mild effacement of the anterior CSF space is appreciated. There is no significant central canal stenosis. Bilateral neural foraminal narrowing is appreciated secondary to uncovertebral joint hypertrophy, right greater than left, as above. There is no myelomalacia on this examination.
2. Mild loss in normal cervical lordosis as before.
A neurological surgeon, Dr. Wilbur M. Giles, reported on February 5, 2002:
Ms. Yearwood was seen in the office on 2/5/02 with a history of bilateral carpal tunnel syndrome, which has been associated with neck pain as well as bilateral shoulder and right arm pain, associated headaches and dizziness following an injury in December of 2000 and May 2001 when she was employed by Wal-Mart, and she has apparently filed for workers' compensation claim, which has not been allowed. In fact, she has been fired by Wal-Mart during this period of time. Her complaints of pain have persisted in the neck as well as shoulder, worse on the right than the left, but some arm pain down to the hand and numbness in her arm as well as neck and shoulder pain, and occipital headaches. She states she hurts constantly and stress makes her worse when using her right arm. . . .
She has not worked since 9/30/01. . . .
Her MRI scan shows mild cervical disease at 4-5 and 5-6 with EMG and nerve conduction findings compatible with severe carpal tunnel syndrome, worse on the right than the left.
Dr. Giles diagnosed "Carpal tunnel syndrome, bilateral, greater right than left; cervical degenerative disc disease." Dr. Giles' recommendations included the following:
I feel she should go ahead and do a right volar carpal ligament release as there is a strong possibility that her carpal tunnel syndrome is aggravating her neck disease and she may well improve with correction of the carpal tunnel . . . We will go ahead with a volar carpal ligament release on the right, and pending how she does, consider possible intervention at a later date on the left. I feel her neck disease can be treated conservatively at this point in time.
The claimant's testimony indicated that she elected not to undergo surgery from Dr. Giles. "No, sir, if I can't even lay down to sleep I was not going to go through a surgery and put myself in more pain without any solutions," the claimant testified. The claimant also testified on cross-examination that she did not claim entitlement to worker's compensation until March 2002, after unemployment benefits were again denied in February 2002.
Ms. Yearwood claimed entitlement to worker's compensation. The respondents contended that the claimant could not prove she sustained a compensable injury. The respondents alternately contended "a notice defense to any medical or indemnity benefits incurred prior to March 15, 2002 when the claimant first gave notice" by filing an AR-C. The parties agreed to litigate the following issues:
(1) Compensability;
(2) Temporary total disability compensation from September 30, 2001 until a date to be determined;and
(3) Reasonably necessary medical treatment.
Hearing before the Commission was held on August 22, 2002. The claimant testified:
Q. Do you feel physically capable of working at this point?
A. The only thing holding me back, sir, is the threat of the increased activity getting to a point where I would have large headaches again. . . .
Q. And, you don't feel like you are physically capable of working at this time?
A. Not a full day.
Even though the claimant had previously refused to undergo a right volar release, she testified at hearing, "The solution to my problem is surgery in my arm."
The Administrative Law Judge found that the claimant sustained a compensable bilateral carpal tunnel syndrome injury which aggravated a pre-existing cervical condition. The Administrative Law Judge awarded medical treatment and temporary total disability from October 1, 2001 until a date to be determined. The respondents appeal to the Full Commission.
II. ADJUDICATION
Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(4)(A), defines "compensable injury":
(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(a) Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as a compensable injury falling within this definition[.]
A claimant that is diagnosed as having carpal tunnel syndrome is not required to prove that her condition was caused by rapid repetitive motion. Kildow v. Baldwin Piano and Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D).
In the present matter, the Full Commission reverses the Administrative Law Judge's finding that the claimant sustained a compensable bilateral carpal tunnel syndrome injury which aggravated a pre-existing cervical condition. Initially, we point out that the determination of the credibility of the witnesses and the weight to be given their testimony are matters exclusively within the province of the Commission. Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000). The instant claimant was not a credible witness. She agreed on cross-examination that she felt "pins in her arm" while previously working for another employer. The claimant provided varied and conflicting explanations for this circumstance and was not believable. The record indicates that the claimant never reported a work-related injury to the respondent-employer during May 2001, the time her symptoms purportedly became acute. Nor is there a record of any physician providing light duty at this time. The claimant was terminated in October 2001 for reasons having nothing to do with the alleged injury. She refused to undergo recommended surgical treatment by Dr. Giles in February 2002. The claimant did not file a claim for worker's compensation until March 2002, when it became apparent she would not receive unemployment benefits. The record contains an undated report from Dr. Bay, where he wrote, "I can't say whether probs are related to repetitive." Although the claimant does not have to prove rapid repetitive motion, this is further evidence that the claimant's problems did not arise out of her employment.
However, even if the claimant had proven by a preponderance of the evidence that she had sustained a compensable injury to her right upper extremity, which we do not find, the evidence does not indicate that the claimant sustained a compensable injury to her left upper extremity. Further, there is simply no evidence of record supporting the Administrative Law Judge's determination that the claimant's "compensable carpal tunnel syndrome . . . aggravated" her pre-existing cervical degenerative condition. Nor does the record show that the claimant's alleged injuries led to her leaving work. The record indicates that the claimant argued with a supervisory employee and voluntarily quit.
Finally, we again note that the respondents contended "a notice defense to any medical or indemnity benefits incurred prior to March 15, 2002 when the claimant first gave notice" by filing an AR-C. Ark. Code Ann. § 11-9-701(a)(1) provides:
(a)(1) Unless an injury either renders the employee physically or mentally unable to do so, or is made known to the employer immediately after it occurs, the employee shall report the injury to the employer on a form prescribed or approved by the Workers' Compensation Commission and to a person or at a place specified by the employer, and the employer shall not be responsible for disability, medical, or other benefits prior to receipt of the employee's report of injury.
We agree with the respondents, in that the claimant did not file a formal claim until March 2002, so that she would not be entitled to benefits before then, if the claimant had established compensability. Nor does the record otherwise show that the employer had knowledge of the claimant's alleged injuries.
Based on our de novo review of the entire record, the Full Commission finds that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable bilateral carpal tunnel syndrome injury. The claimant also failed to prove by a preponderance of the evidence that she aggravated a pre-existing cervical condition. The Full Commission therefore reverses 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.