CLAIM NO. F303479
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 24, 2005
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant appears pro se.
Respondents represented by the HONORABLE MICHAEL J. DENNIS, Attorney at Law, Pine Bluff, Arkansas.
Decision of administrative law judge: Reversed.
OPINION AND ORDER
The claimant, pro se, appeals an administrative law judge’s opinion filed November 5, 2003. The administrative law judge found, “The claimant does not meet his burden of proving by a preponderance of the evidence that his carpal tunnel syndrome complaints are related to his work. Specifically, the claimant does not meet his burden of proving by a preponderance of the evidence that his work activity in the year 2002 was the major cause of his current disability or need for treatment as required by Ark. Code Ann. § 11-9-102(4)(E)(ii).” After reviewing the entire record de novo, the Full Commission reverses the opinion of the administrative law judge. The Full Commission finds that the claimant proved he sustained a compensable injury.
I. HISTORY
Nathaniel Bolden, age 55, testified that he began working for International Paper in August 1989. The record indicates that the claimant complained to the respondent-employer in January 1990 that his left arm was hurting. The claimant was treated with hot packs and was advised to talk to a physician about changing or increasing medication. A note from July 1990 indicated, “Unable to work 7/25/90 because both hands were swollen — Rt worse — Did not see a Dr”. The claimant complained of discomfort in his right wrist in January 1991; a note indicated, “? strain.”
The administrative law judge questioned the claimant at a hearing before the Commission:
Q. Tell me just briefly, I know you’ve got a job description introduced in the packet there, but tell me briefly what did you do for IP last year.
We don’t need to cover it all from `89.
A. Yes, sir. I was Service Operator II, which was pulling wood. The basic term is pulling wood. And in pulling wood, it’s a process of an individual having to hook a rung, which I have a hand-drawn diagram of what we call a wood hook, and pulling logs off of a rubberized belt. And these logs range in diameter from four inches to twenty-five inches, and forty-eight to fifty-two inches long. Those are the specifications that they sent to us. And these are pine logs, they’re green, and most of the time they’re very heavy. . . .
Q. And you hook that log?
A. You hook that log, and you pull it.
Q. And you pull it and get it into the grinder, I guess, or into that machine?
A. Yes, sir, in the grinder.
Q. You have what, an eight hour shift?
A. Yes, we do.
Q. Do you have breaks?
A. No breaks, Your Honor, it’s a continuous operation. The breaks that you get are basically the ones that you make for yourself if you can. . . .
Sometimes the grinders dump every three-and-a-half minutes, sometimes they don’t dump but every seven or eight minutes, but we used six times an hour for a conservative number, which comes up to pulling 380 logs an hour, which adds up to over thirteen hundred logs over an eight hour shift.
Q. Do you have any lulls in there when things slow down where you’re not pulling them, or are you pretty much continually pulling logs for an eight hour shift?
A. Yeah, you’re pulling for an eight hour shift. Now the only lulls or breaks is, you know, if we fill up, which sometimes we do, most of the time we don’t. Or if we have a process where it breaks down, and then you do whatever you can to fix it and then you’re right back up pulling logs.
The claimant agreed on cross-examination that he rotated jobs for the respondent-employer. The claimant worked in a control room where he operated a computer and did not pull logs, the claimant worked on a “flue operation” or conveyor, where he used a six-foot pike pole, and the claimant worked the log pulling job about which he testified. The claimant testified on cross that handling the pike pole “seemed to hurt more than pulling wood.”
The parties stipulated that the employer-employee relationship existed in November and December 2002. That period of time, the claimant testified, was when his bilateral wrist problems “got to the point that it was affecting my work, my job performance. . . . I’ve had pain or numbness and waking up with hands clawed for a long period of time, but that’s when it got to the point that I felt like that it was becoming more difficult for me to do my job, yes, sir.”
The administrative law judge questioned the claimant:
Q. When did you first — I want to try to get this in the right order. When did you first decide that you needed to seek some treatment?
A. I imagine it was in October or early November. As I said, when it got to the point that it was getting hard to do — Well, my job had changed to where I didn’t pull wood every day, but I still had a job to where I had to grasp the wood and pull on it real hard. And this was in October or November. And I went and discussed it. And I say “discussed” for lack of a better term, with the people in first aid. I discussed it with my operator, who is my immediate supervisor, and I also —
Q. Who in first aid did you have a discussion with?
A. Mrs. Gloria, one of the witnesses here. . . .
Q. What was the nature of the discussion, that you were having some problems, you were having some pain?
A. Basically the conversation went like, “My hands are hurting, I think it’s carpal tunnel, and I believe that I did it pulling wood.”
Q. All right. And this lady is a nurse, one of the plant nurses —
A. Yes, Your Honor.
Q. And you also had — Did you have a similar discussion with someone in a supervisory position?
A. Yes, I did, Your Honor, I told my supervisor, Tom Pasadera, who has since transferred to another state, another company, and I told my operator that I worked with on a daily basis. . . .
Q. You actually sought treatment when, first?
A. For this injury I finally went, after discussion with the nurses and so forth, I had an idea what it might have been, but I didn’t know, the nurses didn’t know, because it wasn’t like an injury, a specific injury. . . .And that could have been any number of things, so I told her that I was going to go to the doctor and see what the doctor said.
On December 31, 2002, Dr. John O. Lytle entered a preoperative diagnosis of “Carpal tunnel syndrome of the right wrist.” Dr. Lytle performed a “carpal tunnel release right wrist” on December 31, 2002:
The contents of the carpal canal were protected with a Freer elevator while this was released under direct vision with loupe magnification. . . . The nerve was inspected and found to be severely hour-glassed and discolored through the level of the transverse ligament. This was objective evidence of carpal tunnel disease. . . .
The claimant testified that he had surgery on “one hand, because I had vacation time that would cover it.”
Dr. Lytle indicated on January 9, 2003 following the right carpal tunnel release that the claimant’s pain was gone, and that the claimant could return to work on January 20, 2003.
The claimant prepared a “To Whom This May Apply” document on or about January 22, 2003:
I hired in on 8-21-1989 into the groundwood mill and have been there since then. From approx. 8-21-89 till 1991 I was a process specialist.
This job consisted of two responsibilities which rotated daily. Loading the belt required straightening logs as they came off a conveyor, to a speed up roll, and then onto a long rubberized belt. This required the pulling and or pushing of logs, with a pike pole (6ft. long handle with a spear and hook combination tip) to get the logs on the belt straight.
From approx. 1991 or early 1992 until 2001 I was a service op. II. This job required the pulling of logs off the belt into grinders. The grinders had 6000 hp. Motors and would grind the wood as we put it into them. . . .
While loading grinders this was, and is repetitive process requiring the pulling of logs from 4 inches in diameter to 26 inches, and from 48 inches long to 56 inches in length. They were not all that size but those were the specs. And we pulled plenty of big ones.
Some mornings after work I would wake up with my fingers (middle) cramped and hurting. Sometimes it took hours to get them straightened out. I would go to first aid and complain about my hands being sore and they would give me motrin or muscle relaxers.
I had been told to report an injury we must have a specific incident (trigger) to have caused the injury. My hands became so sore that I could not hardly use them. I reported it to first aid that I was having trouble with my hands and thought it may be carpal tunnel. I requested and was given information on carpal tunnel causes and treatment.
I had carpal tunnel surgery on 12-31-02 by Dr. Lytle on my right wrist. . . .
I talked to our safety coordinator Eric Roberts, and Eric asked me to write in detail what the sequences were. I am now working as a soI and load the belt every three days. All the details if (sic) this statement are true to the best of my knowledge.
The claimant prepared another “To Whom This May Apply” document on or about January 30, 2003:
This letter is in response to our conversation on 1-28-03 in which I was asked about filing a workman compensation claim. I was asked repeatedly about the reason and manner I reported the injury. As I stated to you my hands were hurting constantly. I stood this until I could no longer bear the pain. There was no specific incident that I can recall that would cause the pain. . . . One thing that I forgot to mention is when Dr. Lytle x-rayed and examined my hands I told him that I was going to wait a while before scheduling surgery so I could line up things — time off etc. Dr. Lytle advised me it was best not to wait too long because there would be more damage and loss of muscle mass which I would not be able to regain. I thought about what was said and talked to my operator, personnel in first aid, and my wife before deciding to go ahead with the surgery. I told each person who I spoke with that it was from pulling wood. I got some information on causes and cures of carpel (sic) tunnel syndrome and then called and scheduled the procedure.
My first and major concern was to get my hands fixed. You asked me why did I not tell nurses that I wanted I.P. to pay for the surgery? This was reported to the nurse but not as a specific incident. It is not my intention to deceive anyone, or falsify any statements concerning this matter. . . .
A supervisor with Sedwick CMS informed the claimant on March 20, 2003, “After careful consideration of all available information, it has been determined that your claim for Workers’ Compensation benefits is not compensable. Therefore we must deny your claim.” The March 20, 2003 correspondence indicated “D/L 1/20/03,” and handwritten on the letter was “Approved: Wayne Jordan H.R. Manager.”
The claimant signed a Form AR-C, Claim For Compensation, on or about April 9, 2003. The claimant described the cause of injury: “Hands were hurting and cramping continuously, from pulling wood repetive (sic) motion.” The claimant contended that he was entitled to medical expenses and “surgery on left hand.”
Al Henderson, apparently a representative of the respondent-employer’s Pulp Mill Department, wrote on June 16, 2003, “TO WHOM IT MAY CONCERN: Nat Bolden I.D. #2068 was off on emergency vacation from 12/29/02 until 1/18/03.”
A pre-hearing order was filed on August 25, 2003. The claimant contended that he “developed carpal tunnel syndrome bilaterally as a result of his work with International Paper Company, and that the problem manifested itself in October or November of 2002.” The claimant contended that he was entitled to “medical benefits as result of treatment he has received for bilateral carpal tunnel syndrome.”
The respondents controverted the claim. The respondents contended that the claimant “did not report his carpal tunnel syndrome to the company until after he had had surgery. Respondents contend that the claimant will not be able to demonstrate by a preponderance of the evidence a causal connection between his carpal tunnel syndrome and job activities he was performing for the respondent-employer.”
The parties agreed to litigate the issue of “compensability.”
Hearing before the Commission was held on October 3, 2003. Gloria Tidwell testified that she was a nurse for the respondent-employer. The administrative law judge questioned Ms. Tidwell:
Q. Now Ms. Tidwell, you have been subpoenaed here this morning by Mr. Bolden, and you heard his testimony relative to having some discussions with you back in maybe October or November or December of 2002 about his complaints with his hands and wrists. What’s your recollection of that?
A. My first recollection is when he returned to work and filled out the form, Return to Work form.
Q. Which would have been?
A. I can’t remember the exact date. I don’t have access to the charts to look all that up.
Q. Would it have been after the first of the year 2003?
A. It would have been the day that he returned to work after he had his surgery, whatever it says in there. I’m sure it’s documented or in his medical chart.
Q. All right. You don’t recall, then, him coming to you and having a discussion or complaining about these problems in October, November or December of 2002?
A. Not specifically, no, sir. . . .
The claimant examined Ms. Tidwell:
Q. Do you recall me coming in to First Aid before being treated or returning to work, as you say was your first recollection of this injury? Do you recall me coming in to First Aid and talking to you and asking you for information on carpal tunnel causes and treatments?
A. Not specifically, but there’s a lot of people that come in ask for me to download things off the computer about particular ailments, and I don’t specifically — We don’t do document requests like that, we just get the information and give it to people.
Q. So you’re saying not specifically, and that’s the second time you’ve said that. Is that a yes or a no?
A. No, I don’t.
Q. Okay. Then I would gather that you also have no recollection of my sitting in First Aid and alluding to you after I went to Dr. Lytle and discussing whether or not I should have the surgery, or whether I should file it on workmen’s comp?
A. I remember suggesting that you talk to Eric Roberts about it, because it was totally out of my area of control at that point. Usually, you know, the routine is if someone reports an injury, my job is pretty simple: Fill out the forms, workmen’s comp, and employee investigation form, which is International Paper. . . .
The administrative law judge interjected:
Q. This surgery done by Dr. Lytle, did he come before and have a discussion with you and that’s when you said, “You need to maybe talk to Eric Roberts,” or was it after?
A. I think —
Q. And then you told him he needed to talk to Eric Roberts about whether the company should pay for it or not?
A. Okay.
Q. Did I do any better?
A. Yes, I do understand now. I’m sorry. I do remember him saying that he was going to go ahead and have surgery, and I do remember him saying,
“Well, I’m going to do it and we’ll fight about it later.” I do remember that. . . .
The claimant continued:
Q. I would like to ask her again if she recalled, if she remembered what I said was, “I’ll just go ahead and fight about it.” Why did I say I would go ahead and fight about it? Why would I have to fight about it if I did not mention workers’ compensation? Do you remember anything else about it?
A. Because you were not following the procedure that I was familiar with that every new employee is handed when they come to work there, that all injuries must be reported first to First Aid before the company can be expected to pay for them.
The administrative law judge found, “The claimant does not meet his burden of proving by a preponderance of the evidence that his carpal tunnel syndrome complaints are related to his work. Specifically, the claimant does not meet his burden of proving by a preponderance of the evidence that his work activity in the year 2002 was the major cause of his current disability or need for treatment as required by Ark. Code Ann. §11-9-102(4)(E)(ii).” The administrative law judge therefore denied and dismissed the claim. The claimant appeals to the Full Commission.
II. ADJUDICATION
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[.]
It is unnecessary to prove rapid repetitive motion when there is a diagnosis of carpal tunnel syndrome.Kildow v. Baldwin Piano 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). The burden of proof shall be by a preponderance of the evidence, and the resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment. Ark. Code Ann. § 11-9-102(4)(E)(ii).
In the present matter, the Full Commission finds that the claimant proved he sustained a compensable injury in the form of carpal tunnel syndrome on the right. The claimant was a credible witness, and the description of his work leads the Full Commission to find that the claimant sustained an injury causing physical harm to his right upper extremity and arising out of and in the course of his employment with the respondents. The claimant credibly testified regarding the manual and physical nature of his work with the respondents, and the record shows various complaints of work-related symptoms involving the claimant’s upper extremities. In addition, we find from the evidence that the respondents were aware of the claimant’s complaints no later than November 2002. The claimant testified that he informed the respondent-employer about his work-related wrist pain, and the plant nurse agreed that she was aware of the claimant’s complaints. (The respondents do not argue statutory lack of notice pursuant to Ark. Code Ann. § 11-9-701.) The correspondence from Mr. Henderson confirmed the claimant’s “emergency vacation” beginning in December 2002, and the claimant testified that he clearly made the respondents aware his symptoms were related to his work.
The Full Commission recognizes that the primary medical evidence consists of a single report from Dr. Lytle, that is, the surgical report of December 31, 2002. Dr. Lytle diagnosed “carpal tunnel disease,” established by the objective finding, “severely hour-glassed and discolored through the level of the transverse ligament.” The Full Commission finds that the claimant’s “carpal tunnel disease” was compensable, that is, that the condition arose out of and in the course of the claimant’s employment, and that the compensable injury was the major cause of the claimant’s need for medical treatment. Based on the record of the instant claimant’s work activities for the respondent-employer, and the claimant’s credible testimony, the Full Commission finds that Dr. Lytle’s surgical report is sufficient to establish compensability. See, Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).
Based on our de novo review of the entire record, the Full Commission reverses the opinion of the administrative law judge. The Full Commission finds that the claimant proved his carpal tunnel syndrome of the right wrist was an injury causing physical harm to the body which arose out of and in the course of the claimant’s employment with the respondents. The claimant established his compensable injury by medical evidence supported by objective findings, and the claimant proved his compensable injury was the major cause of his need for treatment. The Full Commission finds that the claimant did not prove he sustained a compensable injury to his left wrist, because the claimant did not establish a compensable injury on the left by medical evidence supported by objective findings. The claimant did not contend he was entitled to temporary total disability compensation. Pursuant to Ark. Code Ann. § 11-9-508(a), the claimant proved he was entitled to reasonably necessary medical treatment provided in connection with the compensable injury, including the surgery performed by Dr. Lytle on December 31, 2002.
IT IS SO ORDERED.
________________________________ OLAN W. REEVES, Chairman
________________________________ SHELBY W. TURNER, Commissioner
Commissioner McKinney dissents.
DISSENTING OPINION KAREN H. McKINNEY, Commissioner.
I must respectfully dissent from the majority opinion finding that the claimant sustained a compensable carpal tunnel syndrome injury to his right wrist. Based upon my de novo review of the entire record, I find that the claimant has failed to prove that this condition arose out of and in the course of his employment. The majority finds that the claimant’s description of his work is sufficient to find that the claimant sustained carpal tunnel syndrome which arose out of and in the course of his employment. While I agree that the description of the work as provided by the claimant consists of upper extremity body movement on a repetitive basis, I cannot find that the claimant’s work is the cause of his carpal tunnel syndrome. While the claimant did not prove the compensability of his left carpal tunnel syndrome as the record is void of any medical records related to this left arm injury, the claimant maintains that he has bilateral carpal tunnel syndrome. From my review of the record, I am unable to find any evidence regarding whether the claimant used the wood hook with his right hand, his left hand or both. In my opinion, such evidence is crucial to a determination of whether the claimant’s work resulted in his carpal tunnel syndrome. Moreover, the record reflects that the claimant did not develop pain in his arms until October or November of 2002, before he proceeded with surgery in December of 2002. The claimant acknowledged that he changed jobs in July of 2001 and he was not longer using the wood hook, the activity he claims caused his carpal tunnel syndrome. The record reflects that in July of 2001, the claimant became a Service Operator I and that he rotated through three different job duties, performing a different duty every day. The claimant testified that out of these three different job duties, only one activity which was only performed every third day caused pain in his arms. In this regard, the claimant testified:
And when the wood comes onto the rubberized belt, it does not come and just stack itself, so as it is loading, you have to push with the pike pole to get it straight.
And then sometimes we don’t get the type of wood that we should get and they have , what do they call them? Stumps, they have stumps, and they have little edges — “edges” is not the right word — but on the trees where it hasn’t been cut off, and the wood will hit it and it tangles up.
And so therefore you have to take your pike pole and reach over and pull and try to straighten it out, you’re pushing or pulling. And it was in the process that I alluded to later on, that loading the belt, the pulling part was when I first experienced the pains up and down my wrists here.
Commission Rule 37 entitled “Occupational Carpal Tunnel Syndrome” states in subsection VI:
Work-relatedness
Carpal tunnel syndrome occurs both from intrinsic or patient factors (e.g. small carpal tunnel from arthritis or congenitally, metabolic derangement, etc.) and extrinsic factors, which for Occupation CTS would be job activities. That is, if the predominant cause of the CTS is from job activity, then the CTS is work-related.
Job activity that regularly requires extensive use of the hands may be an appropriate exposure. Such activity involves repetitive hand use, especially:
for prolonged periods;
against force;
with strongly vibrating equipment;
with repeated wrist flexion, extension, deviation, forearm rotation, or constant firm gripping;
or, with awkward hand or wrist positions.
Conceivably, the claimant’s work involved repetitive hand use in one or more of these manners, however, I am unable to find so based upon the record before me. The claimant testified that he had to pull wood using a wood hook, or that he had to push wood using a pike pole. The record is silent as to whether this was done right handed, left handed or with both hands. Likewise the record is silent with regard to whether these activities were against force, required repeated wrist flexion or extension or forearm rotation, or constant firm gripping. While it is highly probably that the claimant’s upper extremity activities consisted of the activities listed in section VI of Commission Rule 37, in order to make such findings I would have to resort to speculation. 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). Therefore, I cannot find that the claimant has met his burden of proof.
Accordingly, for those reasons set forth herein, I find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable carpal tunnel syndrome injury. Therefore, I must respectfully dissent.
___________________________________ KAREN H. McKINNEY, Commissioner