CLAIM NO. E611161
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 13, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by SCOTT HUNTER, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by KEITH M. McPHERSON, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] Claimant appeals and respondent cross appeals from a decision of the Administrative Law Judge filed April 8, 1997 finding that claimant failed to prove that he sustained a gradual onset injury to his left upper extremity during the course and scope of his employment with respondent. Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof. Therefore, we find that the decision of the Administrative Law Judge should be affirmed. [3] The record reveals that claimant began working for respondent on July 28, 1996. During his short tenure claimant performed the jobs of “part-hammering,” “surf tram” operator and was finally taught how to “run metal.” The record reveals that claimant only worked for respondent four nights, was off two nights and then returned to work for three additional nights, two of which at reduced hours before claimant left work due to pain in his left elbow. Claimant described his job duties for the first two nights as sorting parts which he described as follows:
[4] According to claimant he did this for two nights and on the third night he was taught how to run the “surf tram.” Claimant described the surf tram as follows:You have to take, there is giant boxes of parts, they dump them on the table, you take one part with one hand, you put it on this little piece of metal that knocks off the excess metal, you hit it and throw it in a box. I did that all night long.
[5] Claimant’s third job was that of running metal which he described as follows:Its another machine. You pick up these 50 to 75 pound tubs full of parts and you do a pallet full of them, of the crates, you’ve got to pick them all up and dump them into a holding spot, I guess for the machine. Then you get these little round tub like things and you fill them up with parts. You put them up on a five spindle thing that turns. So you fill each center there, you hit a button it goes in, it pops and then another one comes up, back out until this five, you’re constantly picking it up, bending it, scooping it, getting some more and put it in there all night long.
[6] On cross examination, claimant was asked if the hammering, using the mallet on his first two nights was the most bothersome job to his elbow to which claimant responded “no.” When asked if the scooping of the metal was more bothersome to his elbow claimant responded; “The metal and the vibes, that was the most strenuous things. Everything else was strenuous but them were the things that weighed the most, and I had to do more of.” [7] The claimant’s injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Ark. Code Ann. § 11-9-102My third job was running the metal, it was liquid metal, these giant tubs, you put metal in it and it liquefies it. You get the scoop, you have to scoop and you have six machines, sometimes eight machines, it just matters how many machines they had set up that was running right. You scoop the metal, you have to bring it up about shoulder high and twist and dump the metal off and you have to be real slow because the metal is kind of hot. You do that, you know you can only do it like one machine with your right arm and then you have to switch to your left arm because that one’s so tired by doing it five times. It usually takes about five to ten times to fill up the machine. You know within 10 minutes you have to do it all over again but you do it a certain amount of time with your right hand and then I’d switch to my left arm. When I got all of that caught up I went and ran the vibes. It’s a machine that vibrates all the excess parts and it runs into the 5 gallon buckets. The 5 gallon buckets probably weight 50 pounds. You have to pick them up, pick it up with your left arm and grab the bottom of the bucket with your right arm and turn.
as amended by Act 796 of 1993. We have held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Act 796. Jerry D. Reed v. ConAgraFrozen Foods, FC Opinion filed Feb. 2, 1995 (E317744). The claimant does not contend that the injury is identifiable by time and place of occurrence. Indeed, the claimant contends that the injury is a rapid repetition motion injury. Consequently, in order to prevail on a rapid, repetitive motion claim, a claimant must prove by a preponderance of the evidence that he sustained an injury causing internal or external harm to the body which arose out of and in the course of his employment and which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(5)(A)(ii) and § 11-9-102(5)(E)(ii) (Repl. 1996). A claimant must also prove by a preponderance of the evidence that the injury was caused by rapid repetitive motion, and that the injury was the major cause of the disability or need for treatment. See Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) and §11-9-102(5)(E)(ii) (Repl. 1996). Finally, Ark. Code Ann. §11-9-102(5)(D) requires that a claimant must establish a compensable injury “by medical evidence supported by `objective findings’ as defined in § 11-9-102(16).” Ark. Code Ann. §11-9-102(5)(D) (Repl. 1996). See also Jean Carter v. AidTemporary Services, Inc., FC Opinion filed May 12, 1995 (E404813). [8] If an employee fails to establish by a preponderance of the credible evidence any of these requirements for establishing the compensability of the alleged injury, he fails to establish the compensability of the claim and the claim must be denied. Reed v.ConAgra, supra. [9] Even assuming that claimant’s condition was caused by rapid, repetitive motion, a finding we need not reach, we find that claimant has failed to establish a compensable injury by objective medical findings and that his injury was the major cause of his disability or need for treatment. [10] Although Dr. Stroope diagnosed claimant with “a hypermodal ulnar nerve with subluxation of the ulnar nerve over the medial epicondyle with flexion of the elbow,” we cannot find that this diagnosis is supported by objective and medical findings. Dr. Stroope performed a Tinel’s test on claimant’s left elbow which proved positive. It has previously been found that a Tinel’s test does not produce objective medical findings upon which compensability may be based. Duke v. Regis Hairstyles, 55 Ark. App. 327, 935 S.W.2d 600 (1996). Dr. Stroope further surmised that the subluxation over the medial epicondyle was creating inflammation in and around claimant’s ulnar nerve. Inflammation may be an objective finding if it is observed by the physician. However, Dr. Stroope did not and could not observe internal inflammation around claimant’s ulnar nerve from a mere physical examination. The diagnosis of inflammation is clearly based upon claimant’s subjective response during the exam. There is no evidence anywhere in Dr. Stroope’s medical record that he performed any objective diagnostic testing to support his diagnosis. The x-ray conducted on claimant’s left upper extremity proved negative. Claimant did not undergo a NVC/EMG study to verify Dr. Stroope’s diagnosis with objective medical findings. In short, Dr. Stroope did not perform any objective tests to confirm his diagnosis. Dr. Stroope’s diagnosis, is an hypothesis based upon his physical examination of the claimant and claimant’s subjective responses to that examination. While claimant did eventually undergo surgery to transpose his ulnar nerve, the operation report was not introduced in evidence. If there was subluxation of the ulnar nerve, or inflammation as Dr. Stroope assumed, it is expected that the operation report would bear such findings. However, since the operation report was not introduced into evidence, we cannot reach a finding that Dr. Stroope’s diagnosis is based upon objective medical evidence. Therefore, even if one were to assume that claimant’s job involved rapid repetitive motion, we cannot find that claimant has proven that his left upper extremity complaints are compensable based upon a lack of objective medical evidence. [11] Furthermore, we cannot find that claimant has proven that his injury is the major cause of disability or treatment. Although Dr. Henry F. Stroope indicated that claimant’s work activities irritated claimant’s ulnar nerve, this is insufficient evidence to meet the major cause requirement. [12] The Commission need not base a decision on how the medical profession may characterize a given condition, but rather primarily on factors germane to the purposes of the workers’ compensation law. Weldon v. Pierce Bros. Constr. Co., 54 Ark. App. 344, 925 S.W.2d 179 (1996). The evidence reveals that claimant is right-hand dominant. However, claimant sought treatment for his left arm. According to claimant, he suffered no problems with his right arm; yet Dr. Stroope diagnosed a preexisting subluxation of both claimant’s right and left ulnar nerve. Claimant obviously used his dominant arm more often when employing his job duties. However, when involved in his recreational pursuits of weight lifting and baseball, both extremities are utilized more equally. Claimant’s recreational pursuits have been a part of claimant’s life for a long time, while claimant only worked for respondent for seven nights. Given the exceedingly short duration of claimant’s employment we cannot find that his work activities were more than 50% responsible for claimant’s condition. In our opinion, seven nights of work cannot be the major cause of claimant’s disability or need for treatment when compared with all of claimant’s past work activities and recreational activities which are physically demanding of both upper extremities. Consequently, we also find that claimant has failed to prove the major cause element of a compensable injury. [13] Accordingly, for those reasons set forth herein, we find that the decision of the Administrative Law Judge finding that claimant failed to prove the compensability of his claim should if affirmed. [14] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[15] Commissioner Humphrey dissents.