ALLEN v. KOPPERS INDUSTRIES, INC., 2010 AWCC 21


CLAIM NO. F808614

LONZO ALLEN, EMPLOYEE CLAIMANT v. KOPPERS INDUSTRIES, INC., EMPLOYER RESPONDENT, NATIONAL UNION FIRE INSURANCE, INSURANCE CARRIER RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 25, 2010

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE BRITT C. JOHNSON, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Reversed.

OPINION AND ORDER
The claimant has appealed an Administrative Law Judge’s decision filed on July 1, 2009. In the decision, the Administrative Law Judge found that the claimant had not met his burden of establishing a compensable injury to either his wrist or elbow. After ourde novo review of the record, we find that the Administrative Law Judge’s decision was in error and is hereby reversed.

The claimant alleged that he sustained a gradual onset injury to his wrist, in the form of carpal tunnel syndrome, and to his elbow, in the

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form of cubital tunnel syndrome. The claimant also asserted that he was entitled to appropriate medical treatment for those injuries and for temporary disability benefits during the time he was within his healing period.

I Compensability1. Background
The respondent employer is in the business of manufacturing treated wood products. The claimant testified he was a 29-year employee and was still working for them at the time of the hearing. He stated that he worked inside the production facility when he was first hired but, after a few years, was moved into a position designated as an “A Mechanic.” The claimant had worked in this position for approximately 25 years prior to the onset of the symptoms associated with this claim.

Testimony as to the nature of the claimant’s employment was provided by the claimant and Matthew Conway, a co-worker. Mr. Conway stated that he worked with the claimant as a maintenance mechanic. Mr. Conway stated that he had been both a “C” mechanic and a “B” mechanic. According to Mr. Conway, the letters indicated an individual’s increasing knowledge and experience. When one started at a “C” level, they were learning the job and, as they progressed and became more experienced, their designation would be upgraded until finally reaching the level of an “A” mechanic, as was the claimant.

Mr. Conway described the mechanic’s job as one involving extensive use of hand tools to repair various equipment at the respondent’s facility. Most significantly, Mr. Conway described using rachet wrenches extensively. He described this operation as:

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A Well, the ratchet has gears which allow you to turn nuts and bolts faster, and you may not have to apply as much pressure as you would with a regular wrench. You could turn the nuts and bolts faster with a ratchet. You could set your dial to tighten or untighten; and until you got it tightened or untightened using that ratchet, you’d have to apply a lot of pressure to it sometimes.
Q And the demonstration you just gave, you would be doing that for hours at a time?
A Yeah, until the job is complete and you fix the problem.
Q So the ratchet allows you to go faster?
A Exactly.
Q So you’re exerting or bending your elbow faster than you would if you were using a regular wrench; is that right?
A Yes.
Q Okay. So you start off as a laborer and then a C mechanic?
A That’s correct.
Q What is your current position?
A I’m currently a B mechanic.

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Q Well, let’s back up. How long were you a C Mechanic?
A Approximately two years, I guess.
Q And then you moved to B Mechanic?
A Yes.
Q And that’s your current position?
A Yes.
Q What do you do as a B Mechanic?
A It’s pretty much the same job. As you move up in rank, the jobs get just a little harder; but you’re pretty much doing the same things. The jobs basically don’t change. You just — as you move up, you’ll be asked to take on harder jobs.
Q Can you give an example of what you would consider a harder job?
A As a C Mechanic, I might not be asked to replace a steering cylinder on one of the lift trucks alone. Then as you start to learn and progress, I might be asked to do that job by myself.
Q And I take it you are familiar with Mr. Lonzo Allen?
A That’s correct.
Q How do you know him?
A I’ve worked with Lonzo ever since 2000.

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Q So you’ve worked with him ever since 2000?

Mr. Conway went on to state that the mechanic job required intensive and extensive use of the hands and arms and he described it as, “A very hard job. Sometimes it would be very difficult.” He also stated that, while the job did not require constant use of a particular tool, they were, throughout the day, using their wrists and elbows to turn ratchets, wrenches, screw drivers, and similar tools. He also stated that there was hammering and welding involved and the claimant, in particular, was an experienced welder who used a welder a great deal.

The claimant also provided considerable testimony about his job activities. As described by the claimant, the respondent-employer had a lot of equipment, much of which often needed repair. He said the use of the wrenches involved placing a ratchet on one side of the bolt and another wrench on the other and twisting them simultaneously with both arms. The claimant stated that most of the equipment had large, heavy parts, the replacement of which required removal of 15 or more bolts. According to the claimant, ratchet-style wrenches were used because the employer wanted the jobs done quickly, and using hand wrenches was too slow.

The machinery and equipment the claimant repaired included everything from trucks, forklifts, large machinery, and even a locomotive.

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In addition to the hammering and twisting, the claimant also described extensive use of a welder which required him to grip and hold the controls for significant periods of time while in an awkward position. The claimant described an onset of pain in July 2008 which he reported to his employer as a work-related injury.

After reporting his injury, the claimant came under the treatment of Dr. David Rhodes. Dr. Rhodes saw the claimant on July 31, 2008, and consequently diagnosed him as suffering from a nerve impingement in his left upper extremity. At Dr. Rhodes’ direction, the claimant underwent a nerve conduction study on August 4, 2008, performed by Dr. Barry Baskins. In his report, Dr. Baskins confirmed the presence of carpal tunnel syndrome, and noted an ulnar nerve abnormality in the forearm.

Dr. Rhodes set out the results of the nerve conduction study in a report dated August 7, 2008. Dr. Rhodes stated the study established the claimant suffered from left carpal tunnel syndrome and recommended the claimant undergo carpal tunnel release surgery. The surgery was performed on August 29, 2008.

In a report dated September 25, 2008, Dr. Rhodes confirmed the claimant’s decreased ulnar nerve sensation and diagnosed the

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claimant as having left cubital syndrome. He later performed a surgical release of this condition on the claimant’s left elbow.

2. Carpal Tunnel Syndrome
Carpal tunnel syndrome is a gradual onset injury. The Workers’ Compensation Act specifically allows these types of injuries to be compensable, but requires a claimant establish several factors for the claim to be compensable. These factors were set out by the Arkansas Court of Appeals in Cottage Café v. Collette, 94 Ark. App. 72, 226 S. W. 3d 27 (2006). (Interestingly, the claimant in that case also sustained a gradual onset injury in the form of carpal tunnel syndrome and cubital syndrome). In considering Ms. Collette’s carpal tunnel injury, the Court stated: “A claimant seeking workers’ compensation benefits for a gradual-onset injury must prove by a preponderance of the evidence that (1) the injury arose out of and in the course of his or her employment; (2) the injury caused internal or external physical harm to the body that required medical services or resulted in disability or death; (3) the injury was a major cause of the disability or need for treatment. Ark. Code Ann. § 11-9-102 (4)(A)(ii) and (E)(ii) (Repl. 2002). Because carpal-tunnel syndrome is by definition a gradual-onset injury, it is not necessary that the claimant prove that this

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injury was caused by rapid repetitive motion. See Kildow v. Baldwin Piano Organ, 333 Ark. 335, 969 S. W. 2nd 190 (1998).

In affirming the Commission’s award of benefits inCollette, the Court noted the testimony regarding the claimant’s duties as a cook which required her to extensively move her hands and arms. In this case, there was testimony by two witnesses about the hand-intensive nature of the claimant’s work and how he was constantly twisting his wrists and elbows on hard-to-turn bolts and screws.

This case is also similar to Collette, in that, medical opinion supports a finding of compensability. In a report dated November 13, 2008, Dr. Evans stated: “It is not unusual for carpal tunnel syndrome to come on slowly over time; i.e. due to repetitive use injury which builds until the pain becomes unbearable. I believe this is the case in Mr. Allen’s situation.” Dr. Rhodes reached a similar conclusion as set out in a treatment note dated November 20, 2008, where he stated: “As Mr. Allen has been a mechanic for 28 years it is my opinion that greater than 50% of his carpal tunnel symptoms are related to work.”

We are mindful of the insurance forms submitted by the respondent in which the claimant’s doctors indicate the injury was not job related. However, we find these forms are entitled to less weight than the specific reports we cite above. In completing the insurance forms, the

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doctors checked fill-in-the-blank forms which did not call for the type of considered opinion reflected in the written opinions we have quoted.

The evidence amply supports the written opinions of the two doctors. The claimant and Mr. Conway testified as to the hand-intensive nature of the claimant’s work. In his job as a mechanic, the claimant performed repairs and maintenance to a wide variety of equipment being used in the respondent employer’s production facility. This included working on forklifts, large trucks, a variety of heavy equipment, and a locomotive. The claimant’s job required him to spend almost the entire day using a rachet wrench, tightening or loosening bolts, swinging a heavy hammer, using screwdrivers, and welding equipment. The claimant and Mr. Conway testified in a typical day, someone doing the claimant’s job would spend hours twisting a rachet with his wrist and elbow and using a hammer. As the claimant explained, much of the respondent’s equipment was left outdoors in the weather and the bolts frequently became rusted or otherwise stuck and it was necessary to strike them with a hammer before they would move. Once the bolt started moving, the claimant would have to repeatedly use the wrenches to twist the bolts.

In short, there is no doubt the claimant’s job required heavy use of his hands and arms. Being left-hand dominant, the claimant did most of the twisting and gripping with his left arm. Likewise, pulling the

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rachet, as demonstrated both by Mr. Conway and the claimant, and, as noted by the Judge during the testimony, required him to bend his wrist and elbow over and over. Significantly, both Drs. Evans and Rhodes opined this was the type of activity which would likely cause the claimant’s problems. At the hearing, the claimant testified he had been performing this kind of work for 25 years.

We find the evidence offered in this case conclusively establishes the claimant’s carpal tunnel syndrome was occasioned by his employment related duties. His job was hand intensive, requiring frequent twisting and gripping of a variety of tools, a known cause of carpal tunnel syndrome. See AWCC Rule 099.37. We also note, no evidence was offered showing any other activity or event involving the claimant which could have caused him to develop this condition, a factor cited by the Court of Appeals in reversing us inSally v. ServiceMaster, ___ Ark. App. ___, ___ S, W. 3d ___ (March 18, 2009). Further, medical evidence objectively confirms the claimant sustained an injury in the form of carpal tunnel syndrome and considered medical opinion clearly supports a finding of a causal connection between the claimant’s employment and his carpal tunnel syndrome. For that reason, the Administrative Law Judge’s decision to the contrary is reversed and we find the claimant has met his burden of establishing a compensable carpal tunnel injury.

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3. Cubital Tunnel Syndrome
As the Court indicated in the Collette case, cubital tunnel syndrome, in addition to the other requirements for establishing a gradual onset injury, also requires a claimant to prove their job involved rapid, repetitive motion. Neither the Workers’ Compensation Act or various Courts which have interpreted it, have clearly defined the phrase “rapid and repetitive.” In Malone v. TexarkanaPublic Schools, 333 Ark. 343, 969 S. W. 2d 644 (1998), the Arkansas Supreme Court stated, to meet the requirement the work must be repetitive and performed rapidly. The claimant inMalone was a school custodian who performed a wide variety of jobs with her hands. The Court affirmed the Commission’s findings the claimant’s job was not sufficiently rapid to meet the definition.

Many cases which have found jobs met the rapid, repetitive requirement involved assembly line work. In those cases, evidence was offered showing a worker performing a series of movements within a specific period of time and then repeating that cycle of movements over and over. However, no Court, nor this Commission, has ever held that assembly work is the only type of employment which can meet the rapid repetitive motion requirement. In fact, the Court specifically rejected a definition from earlier Commission Opinions which held that rapid repetitive motion had be the same task performed over and over in a demonstratively

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rapid manner. For example, in the Collette case cited above, the claimant worked as a cook and it was held that her job-related duties were performed sufficiently rapid and repetitively to establish her claim for cubital tunnel syndrome, the same problem suffered by the claimant in this case.

Our review of the evidence convinces us the claimant has met his burden of establishing his work was rapid and repetitive. We note the description by Mr. Conway that the use of a rachet-style wrench required quick and frequent movements of the claimant’s elbow. This testimony is corroborated by the claimant, who testified extensively to the same effect. We also note the evidence establishing the employer required the claimant to use a rachet-style wrench because it was faster than using a traditional hand wrench. These factors, in conjunction with the opinions of the claimant’s treating physicians and the ulnar nerve latency discovered by NCV testing, are sufficient to convince us the claimant established his cubital tunnel injury was the result of his job-related activities and these job-related activities involved rapid and repetitive motion. The Administrative Law Judge’s decision to the contrary is hereby reversed.

II Disability Benefits

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One of the issues presented for determination to the Administrative Law Judge was the claimant’s benefit rate. The Judge found the claimant was entitled to the maximum benefit rate for injuries sustained in 2008. As neither party appealed that decision, it is now final. Accordingly, we find the claimant was entitled to receive $522.00 per week for total disability and $392.00 per week for permanent partial disability.

We also note that the claimant underwent surgery for his compensable injury and was disabled for a significant period of time. According to testimony, which the respondents did not dispute, the claimant began missing work on July 27, 2008, when the respondent stopped providing him light-duty work. No evidence was presented suggesting he refused a suitable offer of re-employment or in any other way disqualified himself for disability benefits during the time he was disabled. We also note from the medical records, the claimant was treated primarily by Dr. Billy Evans, his personal physician, and Dr. David Rhodes, an orthopedic surgeon. In a treatment note dated January 12, 2009, Dr. Rhodes indicated that the claimant could return to full-duty work on January 27, 2009. According to the claimant’s testimony, he returned to work at approximately that time. We find, therefore, the claimant reached the end of his healing period on or about January 27, 2009, and would

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have been entitled to receive temporary total disability benefits from July 27, 2008 to January 27, 2009.

We also note the claimant received group disability insurance benefits during the time he was disabled. The respondents have requested they be awarded a credit for those benefits pursuant to Ark. Code Ann. § 11-9-411. That statute provides a respondent is entitled to a dollar-for-dollar offset in the amount of benefits any worker has received for the same period of disability under a group insurance plan. The respondents are hereby authorized to receive this credit. However, the statute also requires the respondent to hold in reserve all sums so credited for a period of five years to allow the group disability provider to assert a claim for such benefits. The respondents are hereby ordered to hold such sums in reserve and, if no claim has been made in five years, to pay said amount to the Death and Permanent Total Disability Trust Fund.

III Medical Expenses
As indicated above, the claimant has undergone surgical treatment both for carpal tunnel syndrome and cubital tunnel syndrome. The surgeries were performed by Dr. Rhodes and were successful in resolving the claimant’s difficulties. We also note he had returned, by the time of the hearing, to his pre-employment work. No evidence was offered

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questioning the reasonableness or necessity of the treatment and we, therefore, find all medical treatment the claimant received by, and at the direction of, Drs. Evans and Rhodes, and all other appropriate referrals and diagnostic testing was reasonable and necessary and is the responsibility of the respondent. We also find some or all of these medical expenses have been previously paid by the claimant’s group disability insurance carrier. The respondents are also entitled to a credit pursuant to the provisions of Ark. Code Ann. § 11-9-411, discussed above. The respondents are likewise ordered to set out a reserve account for the amount of their credit and, if the health insurance provider has not asserted a claim for reimbursement within five years, they are to pay said amount to the Death and Permanent Total Disability Trust Fund.

IV Conclusion
For the reasons explained above, we find the claimant has established that he sustained compensable injuries to his left upper extremity in the form of carpal tunnel syndrome and cubital tunnel syndrome. The respondents are hereby ordered and directed to pay all reasonable and necessary medical expenses the claimant has incurred for treatment of those conditions subject to the credit provided above. They are also ordered and directed to pay to the claimant temporary total

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disability benefits at the maximum benefit rate for injuries sustained in 2008 for all periods of disability, likewise subject to the appropriate credit provided for by Ark. Code Ann. § 11-9-411.

We also find that the claimant’s attorney has provided appropriate legal services to the claimant in connection to this claim. He is, therefore, awarded an attorney’s fee in the amount equal to 25% of all benefits paid to the claimant, with one-half of that amount to be paid by the respondent and the balance to be withheld from the claimant’s benefits and paid directly to the claimant’s attorney. All benefits awarded herein shall be paid in lump sum without discount and shall bear interest at the lawful rate until paid. For prevailing on this appeal, the claimant’s attorney is awarded an additional fee of $500.00 as provided in Ark. Code Ann. § 11-9-715.

IT IS SO ORDERED.

___________________________________ A. WATSON BELL, Chairman

___________________________________ PHILIP A. HOOD, Commissioner

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Commissioner McKinney dissents.

DISSENTING OPINION
I must respectfully dissent from the majority opinion reversing the decision of the Administrative Law Judge and finding that the claimant sustained compensable injuries of carpal tunnel syndrome and cubital tunnel syndrome for which the respondents are liable. Based upon my de novo review of the entire record, without giving the benefit of the doubt to either party, I find that the claimant has failed to meet his burden of proof.

The claimant was a mechanic for respondent employer. However, during his deposition the claimant described his job as primarily welding. Claimant contends that he sustained a compensable injury for which he is entitled to benefits. Claimant first reported an injury following a incident on July 13, 2008, when he was carrying sheet metal to weld together. The claimant testified that once he got home that evening he noticed that his left side started hurting in his shoulder, elbow and wrist. The claimant reported this incident and was sent to the company doctor. Claimant was diagnosed with a shoulder, elbow and wrist strain and provided medication. In addition, the claimant sought treatment from his primary care physician, but he did not provide his doctor with a history of having strained himself carrying sheet metal. Instead, the claimant

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provided a history of severe pain in his left shoulder, wrist and elbow for 3 days. Claimant was referred to Dr. David Rhodes and an EMG of the left hand was ordered.

The medical records reveal that the claimant has suffered from pain and numbness in his arms and hands for several years. In fact, the claimant was first diagnosed with carpal tunnel syndrome by his primary care physician in September of 2004. At that time the claimant complained that his hands would go numb at night and that he had pain in his right wrist and elbows. Claimant was diagnosed with bilateral carpal tunnel syndrome at that time with his right side being worse than his left. Upon a return visit to his primary care physician on March 14, 2005, the claimant advised that he continued to have the arm pain, but that it had gotten a bit better. By May of 2007, the medical records reveal that the claimant began complaining of pain in his left shoulder as well, and he was noted to have a decrease in the range of motion of his left shoulder. Upon claimant’s visit with his primary care physician on November 13, 2007, the claimant complained of continued left shoulder pain, left arm pain and that his the fingertips of his left hand were numb. Again, the claimant was diagnosed with carpal tunnel syndrome. Claimant’s complaints of numbness continued when he returned to the doctor on May 13, 2008,

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when he was again diagnosed with carpal tunnel syndrome with his physician noting that the left side was worse than the right.

The claimant asserts that he sustained a work-related gradual onset of carpal tunnel syndrome. Therefore, the claimant is not required under the provisions of Act 796 of 1993 to establish that his/her work duties required rapid repetitive motion in order to establish the compensability of his/her carpal tunnel syndrome injury. See Kildow v. Baldwin Piano Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).

Ark. Code Ann. § 11-9-102(4)(A)(ii)(a) (Supp. 2005) defines a “compensable injury” as:

(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[.]

The meaning of the term “rapid repetitive” motion has been construed many times. See Lay v. United ParcelService, 58 Ark. App. 35, 944 S.W.2d 867 (1997); Kildow v.Baldwin Piano Organ, 58 Ark. App. 194, 948 S.W.2d 100 (1997); and Baysinger v. Air Sys., Inc., 55 Ark. App. 174, 934 S.W.2d 230 (1996). On May 21, 1998, the Arkansas Supreme Court reversed the decision of the Arkansas Court of Appeals in Kildow.

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See Kildow v. Baldwin Piano Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). It held that the Commission, and consequently the Court of Appeals, had erred in its interpretation of Ark. Code Ann. § 11-9-102(5)(A()(ii), now codified § 11-9-102(4)(A)(ii), and said:

[T]he meaning of section 11-9-102(5)(A)(ii) is plain and unambiguous. That statute explicitly provides that CTS is both compensable and falls within the definition of rapid repetitive motion. To accept the Commission’s interpretation that CTS is merely a type of rapid and repetitive motion still requiring proof of that element would be to ignore the second sentence of the provision. We do not interpret statutes to create superfluity. The statute provides that CTS is specifically categorized as a compensable injury, not that it is categorized as a type of rapid repetitive motion. We will not add words to convey a meaning that is not here. Moreover, we will not disregard the legislative intent expressed in Ark. Code Ann. § 11-9-1001 (Repl. 1996) mandating strict and literal construction of the workers’ compensation statutes and admonishing the court to leave policy changes to the legislature. (Emphasis in the original.]

The Supreme Court went on to say that the statute safeguards employers because a claimant must prove the injury arose out of and in the course of employment, provide objective medical evidence of the physical harm, and show that the rapid-repetitive-motion injury is the major cause of the disability or need for treatment.

In sum, the claimant must still prove that he sustained a carpal tunnel syndrome injury arising out of and in the course of employment, that a work-related injury is the major cause of his disability or need for medical treatment, and the compensable injury must be established by objective medical findings.

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In the present claim, the claimant’s treating physician, Dr. David Rhodes continuously opined that the claimant’s carpal tunnel syndrome was not work related and provided the claimant with forms for short term disability so stating. It was not until after the claimant sought to obtain worker’s compensation benefits that Dr. Rhodes issued a report stating that greater than 50% of the claimant’s carpal tunnel syndrome was related to his work as a mechanic. This opinion is in direct conflict with the previous forms completed by Dr. Rhodes finding that the claimant’s carpal tunnel syndrome was not related to his work. There is no explanation in the record for this complete about face by Dr. Rhodes. Accordingly, I am unable to accord any weight to either of Dr. Rhodes’s causation opinions. Without a medical opinion regarding causation, we are faced with the claimant’s testimony and his medical records to determine whether the claimant’s condition arose out of and in the course of his employment.

The claimant has complained about pain and numbness in his upper extremities for several years. Claimant first complained about pain

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in his right upper extremity in 2004, when he was diagnosed with bilateral carpal tunnel syndrome. By November 2007, the claimant’s left sided symptoms had progressed to include numbness in his fingertips, causing his left side carpal tunnel syndrome by now be greater than his right. The claimant is left hand dominate, and although he demonstrated using his right hand to some degree when using a ratchet at work, he primarily described having to use his dominate hand to use ratches, wrenches, and hammers at work. This description of the claimant’s work activities fails to explain why the claimant would first develop carpal tunnel syndrome in his non-dominate arm. Although the claimant is not making a claim for his right side complaints, these complaints cannot be ignored when determining causation. Simply stated, I cannot find that the claimant has proven by a preponderance of the evidence that he sustained either carpal tunnel syndrome or cubital tunnel syndrome which arose out of and in the course of his employment as he suffers from this condition bilaterally, and there is insufficient evidence in the record to conclude that claimant’s non-dominate arm complaints are work related. Therefore, I must respectfully dissent.

___________________________________ KAREN H. McKINNEY, Commissioner

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