CLAIM NO. E615082
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 20, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILIP WILSON, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE MICHAEL RYBURN, Attorney at Law, Little Rock, Arkansas.
[1] OPINION AND ORDER[2] This case comes before the Full Workers’ Compensation Commission on remand from the Arkansas Court of Appeals. In an unpublished opinion delivered February 24, 1999 (CA98-799), the Court reversed the Commission’s finding that the claimant failed to prove a compensable carpal tunnel syndrome injury and remanded for further proceedings in accordance with Kildow v. BaldwinPiano Organ, 333 Ark. 335, 969 S.W.2d 190 (1998) andMalone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W.2d 644 (1998). Consequently, we reverse our earlier finding, and we now find that the claimant sustained a compensable “gradual onset” injury pursuant to Act 796 of 1993, which culminated on September 4, 1996. [3] The claimant repaired defective lamps for Cheyenne Industries beginning in 1992 and again beginning in 1995. The claimant worked 40 hours weekly and used a variety of hand tools. The claimant testified that she had right carpal tunnel syndrome in 1992 which alleviated after therapy and caused no missed work time. The claimant became pregnant and left the respondent-employer in 1992. Act 796 of 1993 became effective on July 1, 1993, and the claimant returned to work for Cheyenne on June 26, 1995. Over one year later, the claimant again began experiencing problems with her right hand and wrist. The claimant reported these problems in September, 1996, and Dr. Archie Hearne subsequently confirmed carpal tunnel syndrome through EMG and NCV testing. [4] In an opinion filed July 23, 1997, an administrative law judge found that the claimant did not sustain an injury arising out of and in the course of her employment. The administrative law judge stated that the claimant’s work duties were repetitive but not rapid. The Full Commission affirmed the administrative law judge in an opinion delivered March 18, 1998. We found that the claimant failed to prove that her right side carpal tunnel syndrome injury was caused by rapid repetitive motion. The Commission was aware of Dr. Sheppard’s opinion that the claimant’s condition was related to her work for the respondents. In November, 1996, Dr. Sheppard stated, “I think her occupation is responsible for her current problem.” However, the Commission stated that the claimant worked at her own pace, and that the claimant failed to prove that her job duties were “swift” or “quick.” The Full Commission thus affirmed, with one dissenting vote, the administrative law judge’s dismissal of the claim. [5] The Court of Appeals has reversed and remanded, directing the Commission to enter further findings pursuant toKildow and Malone. In what is now well-established law, the Arkansas Supreme Court held inKildow that Act 796 explicitly provides that carpal tunnel syndrome is both compensable and falls within the statutory definition of rapid repetitive motion. See
Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) (Repl. 1997). The Supreme Court delivered Malone v. Texarkana PublicSchools one week after its Kildow decision. The claimant in Malone had been diagnosed with work-related carpal tunnel syndrome, yet the Court affirmed the Commission’s finding that the claimant’s job duties did not satisfy the definition of rapid repetitive motion. The Malone
Court noted that the statutory construction argument had not been raised as an issue, as had been done in Kildow. In the present matter, Patricia Baker did not contend that her work duties were rapid and repetitive; rather the claimant contended that she had sustained a “gradual injury which culminated on September 4, 1996.” The respondents stipulated that the claimant had sustained a gradual injury, but contended that her job duties were not rapid and repetitive. Therefore, we find thatKildow applies, and the claimant does not have to prove that her work duties were rapid and repetitive. [6] Temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that she is within her healing period and totally incapacitated to earn wages. Arkansas State Highway and Transportation Departmentv. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). On October 29, 1996, Dr. Sheppard diagnosed carpal tunnel syndrome and took the claimant off work. The claimant testified that she returned to work on November 11, 1996. We thus find that the claimant was within her healing period for her compensable injury and totally incapacitated to earn wages from October 29, 1996 through November 10, 1996. [7] Therefore, we reverse our previous findings, including the denial of benefits by the administrative law judge, and award compensability. After de novo review of the entire record, we conclude that the claimant has proven, by a preponderance of evidence, that she sustained a carpal tunnel syndrome injury arising out of and in the course of her employment, that the work-related injury is the major cause of her disability and need for medical treatment, and that the compensable injury is established by objective medical findings. We order the respondents to provide reasonable and necessary medical treatment related to the compensable injury, and to provide appropriate temporary total disability benefits. [8] All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). [9] For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715(b) (Repl. 1996). [10] IT IS SO ORDERED.
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ELDON F. COFFMAN, Chairman _______________________________ PAT WEST HUMPHREY, Commissioner _______________________________ MIKE WILSON, Commissioner