CLAIM NO. E614083
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 10, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by DONNIE RUTLEDGE, II, Attorney at Law, Springdale, Arkansas.
Respondent represented by ANGELA DOSS, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER[2] Respondent appeals from a decision of the Administrative Law Judge filed May 5, 1997 finding that claimant has proven that she sustained bilateral carpal tunnel syndrome while employed by respondent. Based upon our de novo review of the entire record, we find that claimant has failed to meet her burden of proof. [3] The record reveals that claimant, a 45 year old female, has worked for respondent numerous times beginning in 1967. Beginning in 1978, claimant became a full time employee of respondent and has worked for respondent continuously since that time. In 1980, claimant was promoted to the position of packing supervisor and worked in that capacity until 1983. In 1983, claimant was promoted to the position of cryovac supervisor. Claimant continued to work as a cryovac supervisor until August of 1989 when she was promoted to the position of cryovac packing superintendent. Shortly after her promotion to the superintendent position, claimant was moved to the third shift where she continued to work until her termination in 1996. The evidence reveals that when the third shift was first implemented the superintendent and supervisors were required to work on the line until the third shift got up and running. The evidence reveals that this took approximately eight or nine months. However, since that time, the superintendent and supervisors were to devote more time to their supervisory positions. As superintendent over the cryovac packing area, claimant was responsible for the sizing/grading department, cryovac department, and packing department. Claimant’s job duties as the superintendent including supervising employees on the line, completing paperwork, insuring that the equipment ran properly, training new employees and supervising them, safety hazard enforcement, and occasionally working on the line. [4] It is claimant’s testimony that she developed carpal tunnel syndrome symptoms in 1989 just prior to being promoted to the superintendent position. Claimant testified that she would have to work on the cryovac line doing reruns, that is re-bagging and sealing chickens, which caused her to develop numbness and pain in her arms. Claimant did not present to a doctor regarding her complaints of numbness and pain in her arms and hands until 1996. However, the record does reflect that beginning in the early 1990’s or 1991 claimant did present to the plant nurse, Glenda Kirk, complaining of numbness in her arms and was given wrist splints. [5] The first notation in the medical records of any complaints claimant made regarding her hands is in Dr. Bailey’s office notes of May 10, 1996. Claimant testified that she saw Dr. Bailey for an unrelated problem but when he noticed her splints he referred claimant for nerve conduction tests. These tests revealed that claimant had bilateral carpal tunnel syndrome. Claimant underwent carpal tunnel release surgery in October and November of 1996. [6] At first glance, it appears as if the issue of which law, Pre-Act 796 or Act 796, controls this case. However, in our opinion, the controlling question is that of causal connection. Under either the old or new act, claimant must still prove that her alleged injury is causally connected to her employment. Claimant testified that she worked on the line 75% of the time each night. Claimant offered supporting testimony from two former disgruntled employees of respondent, Marlene Hall and John Francis. However when the testimony of Ms. Hall and Mr. Francis is reviewed we cannot find that their testimony corroborates the claimant’s testimony that she actually worked on the production line 75% of the time. Neither of these employees were in a position inside the plant to observe claimant throughout claimant’s entire shift. Both Mr. Francis and Ms. Hall only observed claimant sporadically throughout the work shift. Mr. Francis testified that he could not stand and watch claimant throughout the work shift, he merely saw her on occasion as he passed through her department. In addition, Ms. Hall testified that she did not work in the same building as the claimant and only occasionally saw her during the shift. Conversely, respondent offered testimony of Glenda Kirk, Denise Johnson, Robert Raley, William Lovette and Joyce Reed who all testified that claimant did not work on the production line 75% of the time as claimant contends. [7] Denise Johnson worked for claimant as a supervisor since 1990. Robert Raley was a supervisor under claimant in the cryovac department from June 1993 until October 1994 and from March 1996 until October 1996. Likewise, William Lovette worked immediately under claimant from August 1996 until October 1996. Each of these supervisors who worked directly under the claimant and who each reported directly to the claimant all testified that claimant did not work on the line 75% of the time. Mr. Raley testified that claimant would spend 50% of her time during each shift in his department, the cryovac department. However, he testified he never observed her spending a majority of her time actually physically working on the line as claimant testified. Rather, Mr. Raley testified that claimant only worked sporadically on the line to demonstrate how the work on the line should be properly performed. Joyce Reed, the complex personnel manager, testified that if claimant actually worked on the line 75% of the time while she was the cryovac superintendent, Ms. Reed would have recommended that claimant be terminated. According to Ms. Reed, a superintendent cannot properly perform the functions of his job if he is performing the functions of a line worker, and not the job duties of a superintendent. [8] Accordingly, when all the evidence is reviewed as a whole, we cannot find that claimant actually worked on the production lines 75% of the time as claimant contends. Claimant’s job duties required her to perform much more detailed supervisory functions of paperwork, counseling supervisors and employees, overseeing the entire area, and generally observing and managing three separate departments. When this evidence is compared to the numerous other activities maintained by claimant, such as racquetball, wallyball, and volleyball we cannot find that claimant has proven that her carpal tunnel syndrome is causally related to her work as a superintendent in a supervisory position. The hand grip required to play racquetball and the jarring force on both hands and wrists
when playing these sports are just as likely as claimant’s occasional work on the line to be the cause of claimant’s condition. Each time claimant mentioned her hand problems to the plant nurse or to Ms. Reed claimant would always attach a qualifying statement that she would have to stop playing racquetball or wallyball. These qualifying statements indicated to the listeners that claimant contributed the onset of her problems to these sports related activities. Although claimant testified that she complained to her many co-workers that the work actually caused her carpal tunnel syndrome symptoms, claimant did not present corroborating testimony to that effect. Moreover, claimant did not present to any medical care provider, outside of the plant nurse, with complaints of hand, arm or wrist pain until May of 1996. Claimant was seen by her family physician on numerous times throughout this time frame but at no time did claimant complain to her physicians about her hand or arm problems. [9] We place no weight on claimant’s allegations that she failed to report a work-related problem to respondent for fear of being terminated. Claimant was a superintendent responsible for training supervisors in reporting work-related injuries. Claimant testified that she never advised her supervisors to tell employees or implied to employees that if they reported a work-related problem they would be terminated. Claimant’s allegations are simply inconsistent with claimant’s testimony. [10] In our opinion, if claimant’s carpal tunnel syndrome were related to her job with respondent, one would expect the symptoms to develop at a time when claimant was actually performing the majority of her work on a production assembly line which required intensive hand and arm movement. However, claimant’s symptoms did not develop until after she had been a supervisor and superintendent for a number of years. In her supervisory positions, claimant was not required, and we cannot find that the evidence proves, that claimant worked extended periods of time on the assembly line. Moreover, it was after claimant became a supervisor and superintendent that claimant became involved in hand intensive sports. Accordingly, we cannot find that claimant has met her burden of proof. Therefore, we reverse the decision of the Administrative Law Judge. [11] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[12] Commissioner Humphrey dissents. [13] DISSENTING OPINION[14] I respectfully dissent from the majority opinion which reverses the decision of the Administrative Law Judge. The Administrative Law Judge held that the claimant proved that she sustained a compensable gradual onset injury in the form of bilateral carpal tunnel syndrome, and that she was entitled to the cost of her medical treatment. The Administrative Law Judge further held that the claimant was entitled to temporary total disability benefits for the period from October 9. 1996, through October 20, 1997, and from November 5, 1996, until released by Dr. Donald Bailey following the surgery on the claimant’s right wrist. Based upon my de novo review of the record in this case, I believe that the Administrative Law Judge’s decision should be affirmed. [15] The claimant in this case, a full time employee of the respondent for over twenty years, contends that she sustained a gradual onset injury in the form of carpal tunnel syndrome as a result of her work related duties with the respondent. The evidence in this case reveals that the claimant began working for the respondent in 1967, when she was sixteen years old. However, the claimant did not begin her full time employment with the respondent until 1978, remaining employed with the respondent for approximately twenty years. Over the twenty years of employment the claimant performed various positions with the respondent which consisted of hand/wrist intensive job duties. The claimant worked hanging chickens which consisted of picking up chickens which were partially frozen and wet, pulling them apart to separate, and twisting, lifting, and turning her hands in order to hang the chickens on shackles as the line kept moving. The claimant’s uncontradicted testimony indicated that she personally hung 30-60 birds per minute, and she performed that position for approximately nine months. The evidence in this case clearly indicates that these duties were performed in a rapid repetitive manner. [16] The claimant also performed the position of working the “gib table.” This position required the claimant to collect the neck, liver, gizzards, and hearts, using both hands, sort out the proper pieces, flip or twist open a bag, place the pieces in, and twist the bag closed. The uncontradicted testimony indicated that the claimant did approximately 45 bags per minute, and she performed that position for approximately six to eight months for 50 to 60 hours per week. I believe this position also was performed in a rapid repetitive fashion. [17] In 1980, the claimant was promoted to Packing Supervisor. Both the claimant and one of the respondents’ witnesses testified that when the claimant and others began the night shift they were required to work on the line the majority of the time for more than six months. The testimony indicated that as Packing Supervisor the claimant’s duties consisted of taking processed frozen chickens in bags, and place them into the boxes by twisting, turning, and sorting them in order to make them fit the box. The claimant testified that she placed 24 chickens in each box and filled each box in approximately one minute. I find that this position also required that the duties be performed in a rapid repetitive motion. Although the claimant was the supervisor, she testified that she worked directly on the line approximately 75% of her time. [18] In 1983, the claimant was promoted to Cryovac Supervisor and continued to work on the line 75% of her time. Testimony indicated that this position required the claimant to grip, twist, pull, push and lift frozen, wet chickens and bag them at the rate of 58 birds per minute. I find these duties were also rapid and repetitive in nature. In 1989, the claimant was once again promoted to the position of Cryovac Packing Superintendent, which placed her in charge of sizing, grading, cryovac, and packing. While this position was clearly a supervisory role, testimony indicated that the claimant actually worked the line a majority of her working hours. I find that the positions and duties performed by the claimant over her twenty years of service for the respondent were clearly performed in a rapid and repetitive manner. [19] The majority opinion holds that the claimant failed to prove that her injuries arose out of her employment. The respondent contends that the claimant did not work on the line 75% of the time, challenging her credibility. They also contend that because the claimant failed to seek medical treatment prior to 1996, that her carpal tunnel syndrome must have been caused by another source. The issue in question is not whether the claimant was actually working on the line 75% of the time, but whether the duties in question cause her carpal tunnel syndrome and her need for treatment. While the amount of time the claimant actually spent on the line is a factor to consider, it is only a factor and is not determinative of her claim for compensability. I believe that the evidence is clear that the claimant’s performance of various duties over a twenty year period was the cause of her carpal tunnel syndrome, and that her injury “arose out of” and during the course of her employment. [20] While the respondent and majority opinion point to the fact that witness, Billy Joyce Reed, testified that she played racquetball with the claimant on a regular basis, and that she was her “friend,” I find her testimony is entitled to no weight. While the majority opinion implies that this was the cause of the claimant’s carpal tunnel syndrome, such testimony failed toexplain how a right handed person holding the racquet in her righthand could develop carpal tunnel syndrome in the left wrist. Also, on the one hand Ms. Reed discussed what good friends they were, and in the next breath disputed every aspect of the claimant’s testimony. While I would not expect a witness to lie for a friend, at the same time I would not expect her to be so forthcoming in disputing everything without at least being cross-examined on these subjects. Ms. Reed obviously had her own job to protect, but yet went to extremes and gave testimony without a question on subjects which could have been damaging to the claimant’s credibility, the claimant being her “friend.” [21] The claimant in this case was provided with wrist splints as early as 1991 by the company nurse, Glenda Kirk. While the majority opinion points out that Ms. Kirk indicated in a report that the claimant had been playing racquetball during that period of time, on cross-examination Ms. Kirk had to admit that the claimant never attributed her condition to playing racquetball rather than her work related activities, failing to prove any correlation between the recreational activities and the carpal tunnel syndrome. Testimony further indicated that the claimantwent through 6-8 pairs of wrist splints. It was not until May of 1996 that her condition reached the extent of needing to seek medical treatment due to the constant numbness and lack of feeling in her hands. The claimant was eventually seen by Dr. Bailey for her hand problems, and she underwent a nerve conduction study on May 20, 1996. Due to the positive nerve conduction study, the claimant was diagnosed with bilateral carpal tunnel syndrome. The claimant underwent release surgery on her left hand on October 9, 1996, under Dr. Bailey’s care, and she was off work as a result of the surgery until October 20, 1996. Upon returning to work on October 20, 1996, the claimant testified that she was fired. The claimant further testified that her right wrist surgery was performed on November 5, 1996, by Dr. Bailey. [22] The majority opinion holds that the claimant failed to prove a causal connection between her carpal tunnel syndrome and her work related duties. However, the majority opinion fails to discuss any of the medical evidence which clearly contradicts their opinion. ALL of the medical exhibits in this case indicate that the claimant’s duties were the major cause of her disability and need for treatment. In his October 1996 report, Dr. Bailey stated:
[23] In his report dated August 14, 1996, Dr. Peter R. Heinzelmann stated:Based upon objective medical findings and within a reasonable degree of medical certainty, it is my opinion that Peggy Arnold has bi-lateral carpal tunnel syndrome, and her job at Tyson Foods was the major cause (over 50% of the cause) of her disability and need for treatment. My opinion is the same for each wrist. [Emphasis supplied.]
A nerve conduction test performed by Dr. Morse on 05/20/96, was compatible with significant bilateral carpal tunnel syndrome. . . .
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[24] In his letter of August 14, 1996, the same day as the report above, Dr. Heinzelmann stated:IMPRESSION: Bilateral carpal tunnel syndrome, of a moderately severe degree which is work related. [Emphasis supplied.]
[25] The respondent in this case has offered no medical opinion or evidence to rebut the evidence presented by the claimant. The majority opinion fails to even address the overwhelming medical evidence which contradicts the whole basis for their opinion. I find the medical opinions in this case are totally consistent and they are extremely credible. Accordingly, I find that the claimant has proven that her carpal tunnel syndrome was the major cause of her disability and need for treatment, and that this was proven with objective medical findings in the form of the nerve conduction study. [26] The claimant in this case worked for the respondent for twenty years, performing the duties which were rapid and repetitive in nature for the majority of that time. The evidence clearly show that her condition arose out of her employment, and the medical evidence is all consistent that her work related duties were the major cause of her disability and need for treatment. I find that the claimant was an extremely credible witness, and that she has met her burden of proving her carpal tunnel syndrome is compensable. Accordingly, I would affirm the Administrative Law Judge’s decision, and I must respectfully dissent from the majority opinion reversing the Administrative Law Judge’s decision. [27] PAT WEST HUMPHREY, CommissionerI do feel that her problem is work related and I have recommended carpal tunnel release surgery. [Emphasis supplied.]