CLAIM NO. E603971
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 13, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE BILL WIGGINS, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE WALTER MURRAY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the Administrative Law Judge on September 24, 1996. In that opinion and order, the Administrative Law Judge found that claimant failed to prove by a preponderance of the credible evidence that her bilateral carpal tunnel syndrome condition was caused by rapid repetitive motion arising out of and occurring during the course of her employment with respondent. In addition, the Administrative Law Judge found that the claimant failed to prove by a preponderance of the credible evidence that her employment was the major cause of her disability or need for treatment. After conducting a de novo review of the entire record, we find that the claimant proved by a preponderance of the evidence that she sustained a compensable injury. Therefore, we find that the decision of the Administrative Law Judge must be reversed.
[4] The claimant testified that her quota was between 4,000 and 5,000 parts per day. She stated that “something happened” to her at work, affecting her hands, wrists, and arms, but primarily her right hand. She reported pain in her elbows and hands to the plant nurse on September 26, 1995. On that date, the company authorized the claimant to present to Convenient Medical Center in Fort Smith, where she was examined by Dr. Maria Mason. Dr. Mason assessed wrist pain, radiating to the elbows to tendonitis or “repetitive movements.” Dr. Mason noted “borderline carpal tunnel” in the claimant’s right hand, prescribed medication, a splint, and placed the claimant on light duty. [5] The claimant denied any improvement in a follow-up appointment one week later, October 4, 1995. Dr. Mason thus began a series of six “shock treatments,” viz., iontophoresis, to claimant’s right hand, right wrist and right and left forearms. The claimant was treated in this fashion every other day, from October 6 — 27, 1995. The claimant did not benefit from this treatment and even reported new symptoms, cramps on her fingers. Dr. Mason continued the claimant on light duty and referred her to Dr. R. Cole Goodman, a hand specialist. Dr. Goodman first examined claimant on November 9, 1995. Dr. Goodman’s assessment was early carpal tunnel syndrome. His treatment plan included splinting and anti-inflammatories, along with continuing light duty and avoidance of repetitive motion. During Dr. Goodman’s treatment, the claimant stated, the fingers on her right hand “started going to sleep on me at night and had more tingling in them and more pain.” Dr. Goodman referred the claimant to Holt-Krock Clinic for Nerve Conduction Velocity (NCV) testing. Dr. Ernest Serrano of the Holt-Krock Clinic reported a normal study, showing no evidence of carpal tunnel syndrome. However, in December 19, 1995 correspondence, Dr. Goodman reported:The roller welder has got four different positions on the job; there is fixtures on this line and it makes freezer shelves in one position that you do; you put trim in this fixture with your right hand; you put the trim in and you flip this little door and then it goes under this welder and it comes around. You take the shelf out of the fixture, which at times it is real hard to pull out because this machine does not pop them out correctly some of the times. After you take the shelf out, you have to put it into this trimmer and trim the excess wire on the shelf, then you set the — then, you take the shelf after that and you put it on this front bar machine and it puts a front bar underneath the front trim, and you have to push this button for the front bar machine to weld it. Then, after you get so many stacked up, you pack them into the box.
[6] Respondent referred the claimant to Dr. Michael Moore of Arkansas Center for Surgery of the Hand and Upper Extremity. In January 3, 1996 correspondence, Dr. Moore reported:Ms. Barnette is in today and she is doing very well, is not progressing. Her NCVs were negative but I think with her physical findings and everything else that she is a false negative and that she has carpal tunnel syndrome. She is not progressing. We talked about doing an open release and she is tentatively scheduled for that. We will keep her on light duty, splinting, and anti-inflammatories until then and hopefully if she should get better we will cancel the surgery.
[7] The claimant returned to Dr. Goodman on January 9, 1996, and admitted that she had not been taking the prescribed anti-inflammatory medication. The claimant missed work entirely on January 9-17, 1996. On January 16, 1996, Dr. Goodman scheduled surgical “decompression,” as he opined conservative treatment was not helping the claimant. However, respondent did not approve the surgery. Dr. Goodman did not agree with this decision and resigned from the case. In February, 1996 correspondence, respondents stated they were denying the claim in its entirety. The claimant’s last day of employment with respondent-employer was April 24, 1996 (she testified she was scheduled to return to work August 27, 1996, the day after the hearing). Respondents repeated their position in a May, 1996 letter, declaring they would authorize no further medical treatment. [8] Nevertheless, the claimant sought further medical treatment on her own from her family doctor, Dr. Kyle. Dr. Kyle referred the claimant to Dr. Cheyne of the Holt-Krock Clinic. Dr. Cheyne ordered EMG/NCV testing, carried out April 29, 1996, with the following diagnosis:It is my impression that Ms. Barnette’s clinical history and physical examination are consistent with mild carpal tunnel syndrome. I agree with Dr. Goodman regarding Ms. Barnette’s diagnosis. However, she had undergone a Nerve Conduction/EMG study which was normal. In this regard, I do not feel that Ms. Barnette is a candidate for surgical treatment. If Ms. Barnette were my patient, I would recommend treating her with a right wrist injection and splint. I would recommend that Ms. Barnette perform light duty work for approximately four weeks. Following this treatment, I would have Ms. Barnette return to work on a graduated basis. It may also be reasonable to have Ms. Barnette evaluated for a job transfer. If Ms. Barnette should have persistent symptoms in the future, it is my opinion that she should consider finding work which is less stressful to her hands. I would also repeat the Nerve Conduction/EMG study in three to six months. If the repeat study reveals carpal tunnel syndrome, it is my opinion that Ms. Barnette would be a candidate for surgical treatment. It should be understood that I feel Ms. Barnett is a legitimate patient. She underwent a validity test which suggested an excellent effort.
[9] From there, Dr. Cheyne referred the claimant to Dr. Timothy Wright. Dr. Wright examined the claimant in May, 1996 and noted symptoms consistent with carpal tunnel syndrome. Dr. Wright planned conservative treatment, including wrist splints and medication, and kept the claimant off work. Dr. Wright performed right carpal tunnel release surgery on July 26, 1996 and released the claimant for a return to work beginning August 27, 1996. However, he directed restrictions of no lifting in excess of five pounds with the right hand, no repetitive movement with the right hand. [10] Since the claimant contends that she sustained an injury after July 1, 1993, this claim is controlled by the Arkansas Workers’ Compensation Law as amended by Act 796 of 1993. Consequently, to establish the compensability of the claim, the claimant must satisfy the requirements for establishing one of the five categories of compensable injuries recognized by the amended law, including the requirements common to all categories of injuries. See, Jerry D. Reed v. Con Agra Frozen Foods, Full Workers’ Compensation Commission, opinion filed Feb. 2, 1995 (Claim No. E317744). In the present claim, the claimant does not contend that her injury was caused by a specific incident and identifiable by time and place of occurrence. Instead, she contends that she sustained an injury as a result of repetitive motion. Therefore, the requirements of Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) (Repl. 1996) control, and the following must be satisfied:1. Carpal tunnel syndrome, mild, on the right. There is no evidence for a carpal tunnel syndrome on the left.
2. The EMG portion of this test is normal, showing no evidence for radiculopathy, myopathy or for entrapment of the median nerve higher than the wrist.
[11] In the present claim, we find that the claimant established by a preponderance of the evidence each of the requirements necessary for establishing the compensability of her right side carpal tunnel syndrome. [12] The claimant testified that “something happened” at work, causing pain in her hands, wrists, and arms. After considering the claimant’s testimony in conjunction with the nature of her work duties, we find that the claimant proved by a preponderance of the evidence that she sustained a right carpal tunnel injury which arose out of and in the course of her employment. Moreover, we note that the record does not contain any evidence of any non-work activities that may have caused or contributed to the claimant’s condition, nor have the medical personnel in this case noted any other factors which might have predisposed the claimant to developing carpal tunnel syndrome. Consequently, we also find that the claimant proved by a preponderance of the evidence that her work-related injury was the major cause of her need for more medical treatment and disability. We also note that objective medical findings, EMG/NCV testing ordered by Dr. Cheyne, establishes that the claimant’s injury caused harm to the right carpal tunnel. [13] We also find that the claimant’s injury was caused by rapid repetitive motion. In reaching that conclusion, we note from the claimant’s testimony and the respondents’ videotape that the claimant engaged in essentially assembly line work at four stations and that the work was very hand-intensive. The claimant’s production quota was 4,000 to 5,000 parts per shift, and the quota was met approximately 80% of the time. The claimant worked from 7:00 a.m. until 3:00 p.m., with a ten minute break in the morning and a twenty minute break for lunch. Moreover, we find that the claimant’s combined work duties at her four assigned work stations required repetitive motion. [14] The Administrative Law Judge found, in essence, that the claimant’s job duties did not involve rapid motion. However, we note that the evidence regarding the speed at which the claimant worked, and the swiftness of the hand-intensive motion involved, appears to be much better developed and much more compelling than the evidence developed in Kildow v. Baldwin Piano Organ, CA96-1268 (Jul. 2, 1997), where the Court of Appeals determined that the claimant’s injury was caused by rapid motion. Since we find the evidence of rapid motion in the present case significantly more compelling than the evidence presented inKildow, and since the Court of Appeals found the evidence inKildow sufficient to establish work-related rapid motion, we are constrained to find in the present case that the claimant proved by a preponderance of the evidence that her hand intensive work duties involved “rapid” motion, as well as “repetitive” motion. [15] 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. ArkansasState Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). In the present case, Dr. Goodman took the claimant off work from January 16-18, 1996, and Dr. Cheyne and Dr. Wright took her off work from April 24, 1996 through August 27, 1996, when the claimant was scheduled to return to work. Therefore, we find that the claimant proved that she remained within her healing period and incapacitated to earn wages from January 16 through January 18, 1996, and also from April 24, 1996 through August 26, 1996 (the date of the hearing). We also find that the claimant is entitled to reimbursement for the reasonably necessary medical expenses that she has incurred as a result of her injury. In addition, we find that the respondents are liable for any additional medical treatment which is reasonably necessary to treat the claimant’s carpal tunnel injury. The claimant’s attorney is entitled to the maximum attorney’s fee on the benefits awarded. [16] 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). 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 (Repl. 1996). [17] IT IS SO ORDERED.(1) proof by a preponderance of the evidence of an injury arising out of and in the course of her employment (see, Ark. Code Ann. § 11-9-102(5)(A)(ii) (Repl. 1996); Ark. Code Ann. § 11-9-102(5)(E)(ii) (Repl. 1996); see also, Ark. Code Ann. § 11-9-401(a)(1) (Repl. 1996));
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body (see, Ark. Code Ann. § 11-9-102(5)(A)(ii) (Repl. 1996));
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury (see, Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996));
(4) proof by a preponderance of the evidence that the injury was caused by rapid repetitive motion (see, Ark. Code Ann. § 11-9-102(5)(A) (Repl. 1996));
(5) proof by a preponderance of the evidence that the injury was the major cause of the disability or need for treatment (see, Ark. Code Ann. § 11-9-102(5)(E)(ii) (Repl. 1996)).
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[18] Commissioner Wilson dissents.[19] DISSENTING OPINION
[20] I must respectfully dissent from the majority finding that claimant sustained compensable bilateral carpal tunnel syndrome during the course and scope of her employment. Based upon my denovo review of the entire record, I find that claimant has failed to meet her burden of proof. The majority relies heavily upon claimant’s testimony that she works in a factory doing repetitive type work and must meet a quota. However, when the evidence is reviewed it is clear that the quota mentioned by claimant is not solely met by claimant’s work efforts. Claimant testified that she has three additional co-workers who work on the roller welder machine with her and as a group they must meet a quota. Accordingly, I cannot find based upon the evidence presented that claimant has proven by a preponderance of the evidence that her work actually required rapid motion. Moreover, when the videotape is viewed, it is clear that claimant’s job while performing repetitive motions throughout the day was not performed at a swift, quick, or notably high rate of motion. Rather, claimant’s work was performed at a steady, manageable work pace. In my opinion, in order to meet one’s burden of proof regarding the rapid aspect of rapid repetitive motion injury claims, claimant must present enough evidence upon which it can be determined that rapid motion is actually required. To find that rapid motion was required based upon the evidence presented by claimant in this case, specifically a quota which has no real meaning in light of the fact that claimant’s work duties were shared by three additional co-workers and the videotape showing a manageable steady pace, requires one to resort to speculation or conjecture. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v.Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). Accordingly, for those reasons stated herein, I must respectfully dissent from the majority opinion.