CLARK v. HAYWORTH, 2001 AWCC 49

CLAIM NOS. E912587 and E913062

BRENDA CLARK, EMPLOYEE, CLAIMANT v. HAYWORTH, INC., EMPLOYER, RESPONDENT, TRAVELERS, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 16, 2001

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE JOHN BARTTELT, Attorney at Law, Jonesboro, Arkansas.

Respondents represented by the HONORABLE PHILLIP CUFFMAN, Attorney at Law, Little Rock, Arkansas.

Decision of administrative law judge: Affirmed.

OPINION AND ORDER
The respondents appeal to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed July 20, 2000. The administrative law judge found that the claimant proved that she was entitled to payment of benefits for bilateral carpal tunnel syndrome. The administrative law judge directed the respondents to provide reasonable and necessary medical treatment pursuant to Commission Rule 30. The administrative law judge also directed the respondents to pay temporary total disability compensation from October 27, 1999 to a date yet to be determined. After de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge.

I. HISTORY
Brenda Lee Clark, age 38, began working for Baldwin Piano in 1995. Ms. Clark did not work on an assembly line at Baldwin. Rather, she performed “touch-up” work on wood upright pianos. Ms. Clark sustained an accidental injury while working for Baldwin Piano in approximately 1996. “I was wiping down a piano . . . my hand slipped off and I hit a push pin which was also a tuning pin,” she testified. Ms. Clark stated that she was hit just below the palm on the inside of her right wrist. The claimant testified that she was told her median nerve had been injured, and that she had been diagnosed with carpal tunnel syndrome. There are no medical records before the Commission with regard to this injury. Ms. Clark received a very short course of conservative medical treatment and said that she missed no work time. Ms. Clark testified that her hand stopped hurting after several days, and that she had no further problems with her right wrist or hand.

Ms. Clark began working for Haworth, Inc. on October 27, 1998 as a “laminate puller.” Her job changed to “T-mold assembly” in January, 1999. This job entailed manually placing molding around a laminate. The employee testified that her right hand “started tingling, going numb a little bit” around May, 1999, and that her right hand “started hurting real bad” in June and July.

The parties stipulated that the claimant suffered a compensable injury to her right wrist on August 2, 1999, on which date the respondent-employer sent her to Dr. Michael D. Lack. The claimant wrote on a Patient Information form that the specific part of her body injured was “Right hand elbow shoulder.” The claimant wrote that she first noticed the injury approximately two months earlier, and she explained on the form, “My hand is hurting with a tingling sensation and I am losing my grip dropping things the pain is moving up into my elbow shoulder. I also have knots in palm of hand.” Dr. Lack’s August 2, 1999 report is nearly incomprehensible, but it appears that he prescribed conservative treatment measures. The employee testified that she missed no work time.

The claimant returned to Dr. Lack on August 5, 1999. She complained of swelling in her fingers and pain in her right wrist radiating to the elbow and sometimes the shoulder. Dr. Lack appears to have assessed “tendinitis” in the right wrist, and he indicated that the injury was work-related. Dr. Lack stated that the claimant could return to work on August 5, 1999, restricted to a left-handed job, no repetitive tight gripping with hand or wrist movement. Ms. Clark testified that she put cardboard boxes together after returning to work, and that she used her left hand to place brackets on boards with an air screwdriver.

The claimant stated on August 25, 1999 that she had not used her right wrist for three weeks, and that her wrist seemed to be better. Dr. Lack appears to have assessed “tendinitis resolved.” Dr. Lack released the claimant from his care and returned her to regular work on August 25, 1999. He again indicated that the injury was work-related. Dr. Lack authored a Final Narrative Report on August 25, 1999:

Ms. Clark is a 36-YO assembler from Haworth who comes in complaining of gradual onset of numbness on the right hand and some on the left.
It has gotten so bad that she dropped a cup of coffee at home over the weekend. She did not know she was getting ready to drop it until it fell. She is having pain in her hand along the forearm at night. . . .She does not have any medical problems that would contribute to this problem.
She has worked as an assembler for approximately nine months. She uses an air hammer to put T-
molding in place. . . .Assessment was that of right wrist pain, probable tendinitis.
This was treated with RICE (rest, ice, compression, elevation) protocol, Anaprox, and a splint. She was to return to work with restrictions to be followed up in approximately a week. However, in the interim, the patient came in stating that her hand had been very painful, even with the splint, and that her fingers had been swelling. After examination, it was thought that the swelling of the fingers was probably due to the splint being on too tight. . . .
The patient failed to keep her f/u appointment and returns today stating that she wants to have her wrist examined and to be done with this.
She says it was not hurting and gestures in the air, moving her hands in all directions to show me that there was no tenderness. . . .I think the patient has a lot of psychological overlay to her symptoms.

ASSESSMENT: Tendinitis, resolved.

INSTRUCTIONS: The patient was released to return to regular work on 08/25/99.
DISPOSITION: The case was closed; no permanent impairment.

The claimant returned to Dr. Lack on October 18, 1999. The claimant now complained of pain in both wrists, right worse than left. The claimant said she had a knot on her right wrist, and that the middle finger of her right hand was numb. Dr. Lack’s assessment included “wrist pain”; he apparently referred the claimant to Dr. Demetrius Spanos in order to rule out carpal tunnel syndrome. Dr. Lack returned the claimant to work on October 18, 1999, “No repetitive tight gripping with hand or wrist movement.” Dr. Lack once more indicated that the claimant’s injury was work-related.

After performing electrodiagnostic testing on October 20, 1999, Dr. Spanos gave the following impression:

Abnormal nerve conduction velocity studies of both upper extremities.

CONCLUSION:

1.) Worsended (sic) carpal tunnel syndrome of the right upper extremity from moderately severe to severe since last study from three years ago.
2.) Mild carpal tunnel syndrome of the left upper extremity (no previous study).
3.) Normal palmar studies of the right upper extremity were absent on previous testing.
At that time patient had sustained an injury to site. Presumably condition has resolved given neurophysiologic results.

The parties stipulated that the respondent-employer terminated the claimant’s employment on October 20, 1999, for “failing to disclose a preexisting condition (right carpal tunnel syndrome).” The respondents controverted compensation related to the right wrist beginning October 22, 1999. Despite the stipulation regarding the date of her employment termination, Ms. Clark testified that she continued working at light duty until October 27, 1999, on which date she was terminated for alleged “falsification of my employee records.”

Ms. Clark filed a claim for worker’s compensation. The claimant contended that she developed bilateral carpal tunnel syndrome as substantiated by a positive EMG/NCV study conducted October 20, 1999. The claimant sought payment of medical expenses and asked the Commission to approve a referral from Dr. Lack to Dr. Ball. The claimant contended that she was entitled to temporary total disability compensation from October 27, 1999 to a date yet to be determined.

The respondents contended that the right hand injury was not compensable, “because her injury is not the major cause of her need for treatment.” The respondents asserted that the claimant’s right carpal tunnel syndrome “was diagnosed three years earlier.” The respondents contended that the left-hand injury was not compensable, “because her job duties did not require use of the left hand. Neither claim is causally related to the claimant’s job duties.”

After a hearing before the Commission, the administrative law judge found that “the claimant has met her burden of proof and is entitled to payment of benefits for bilateral carpal tunnel syndrome (CTS).” The respondents appeal to the Full Commission.

II. ADJUDICATION A. Compensability of Carpal Tunnel Syndrome
Ms. Clark contends that she is entitled to compensation for a gradual-onset injury. To sustain her claim, the employee is not required to prove that her bilateral carpal tunnel syndrome was caused by rapid and repetitive motion, but she must prove by a preponderance of the evidence that:

(1) the injury arose out of and in the course of her employment;
(2) the injury caused internal or external physical harm to the body that required medical services or resulted in disability or death; and
(3) the injury was a major cause of the disability or need for treatment.

Ark. Code Ann. § 11-9-102(4)(A)(ii) (E)(ii) (Supp. 1999); Crudupv. Regal Ware, Inc., 341 Ark. ___, ___ S.W.3d ___ (2000). In addition, a compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Supp. 1999); Kildow v. Baldwin Piano Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).

After our de novo review of the entire record, the Full Commission affirms the administrative law judge’s award of benefits to the claimant for bilateral carpal tunnel syndrome. The claimant began working for the respondent-employer in October, 1998, performing vigorous manual labor with her hands. She reported a tingling/numbness on the right in 1999. The respondents provided medical treatment by Dr. Lack; in fact, the respondents stipulated that the claimant sustained a compensable injury to her right wrist. Dr. Lack expressly indicated on three occasions that the claimant’s injury was work-related. Dr. Lack did not qualify his opinions with words such as “could” or “may.”See, Freeman v. Con Agra Frozen Foods, 71 Ark. App. ___, ___ S.W.3d ___ (2000).

There are objective findings of a bilateral carpal tunnel injury. EMG/NCV testing performed in October, 1999 showed “worsened right carpal tunnel syndrome” from the 1996 injury and “mild” carpal tunnel syndrome on the left. The respondents seem to assert on appeal that the claimant’s 1999 carpal tunnel syndrome was a “recurrence” of an injury she sustained while working for another employer in 1996. The claimant indeed testified that she suffered a previous accidental injury to her right median nerve/carpal tunnel in 1996. However, the preponderance of evidence does not support the respondents’ assertion that the 1999 injury was a recurrence of her 1996 injury, because: (1) the claimant testified, without rebuttal, that following the 1996 specific incident, she had right wrist problems for only a few days thereafter; (2) the claimant’s 1999 electro-diagnostic report states that her objective findings in the right wrist were worse in 1999 than in 1996; (3) the claimant injured her right wrist in 1996, but developed bilateral carpal tunnel syndrome while working for the respondents in 1999. From the record before us, the Full Commission affirms the administrative law judge’s determination that the claimant’s 1999 injury was an “aggravation” of a pre-existing condition rather than a mere “recurrence.”

After de novo review of the entire record, the Full Commission finds that the claimant’s bilateral carpal tunnel syndrome arose out of and in the course of her employment. The claimant’s injury caused physical harm to her body, required medical services, and was established by medical evidence supported by objective findings. We also find that the claimant’s injuries were the major cause of her disability and need for treatment. The Full Commission therefore affirms the administrative law judge.

B. Temporary Disability
The claimant sustained bilateral carpal tunnel syndrome, a compensable scheduled injury. Hallsell v. Levi Strauss Co., Full Workers’ Compensation Commission, March 7, 1995 (E113512 E101707). The claimant is therefore entitled to temporary total disability compensation while she is within her healing period and has not returned to work. See, Ark. Code Ann. § 11-9-521(a) (Supp. 1999); Armstrong v. Wheeler Construction Co., Full Workers’ Compensation Commission, May 26, 2000 (E615744). The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102(12). The healing period continues until the employee is as far restored as the permanent character of her injury will permit. When the underlying condition causing the disability becomes stable, and when nothing further will improve that condition, the healing period has ended. The claimant is no longer entitled to receive temporary total disability compensation, regardless of her physical capabilities. Brock v. Elk’s Lodge #1714, Full Workers’ Compensation Commission, May 13, 1997 (E407346).

The present claimant suffered a compensable injury to her right wrist on August 2, 1999, and bilateral carpal tunnel syndrome was objectively confirmed in October, 1999. Yet, the respondents controverted medical treatment for the claimant beginning October 22, 1999, and they terminated her employment on October 27, 1999. The record indicates that Dr. Lack intended to refer the claimant for a surgical consultation at the time the respondents controverted further medical treatment. We can find no evidence that the claimant’s healing period for her compensable injuries has ended. We recognize that the claimant attempted to return to work at a Family Dollar Store for a short period in January, 2000. This attempt to return to work was unsuccessful, however, and there is no indication of record that the claimant is physically able to return to her work for the respondents. Therefore, the Full Commission affirms the administrative law judge’s award of temporary total disability compensation from October 27, 1999 to a date yet to be determined.

Based on our de novo review of the entire record, the Full Commission finds that the claimant sustained a compensable injury in the form of bilateral carpal tunnel syndrome, for which she is entitled to reasonable, necessary, and related medical treatment. We find that the claimant proved that she was entitled to temporary total disability compensation from October 27, 1999 until a date yet to be determined. The Full Commission therefore affirms the opinion of the administrative law judge.

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).

IT IS SO ORDERED.

________________________________ ELDON F. COFFMAN, Chairman
________________________________ SHELBY W. TURNER, Commissioner
________________________________ MIKE WILSON, Commissioner

Commissioner Wilson dissents.

I respectfully dissent from the majority opinion finding that the claimant proved that she was entitled to payments of benefits for bilateral carpal tunnel syndrome. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof. In my opinion, the claimant has failed to prove that her injury is the major cause of her disability or need for treatment.

Therefore, I respectfully dissent from the majority opinion.

____________________________ MIKE WILSON, Commissioner