COX v. COOPER TIRE AND RUBBER COMPANY, 1995 AWCC 165

CLAIM NO. E408120

KENNETH COX, SR., EMPLOYEE, CLAIMANT v. COOPER TIRE AND RUBBER COMPANY, SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 14, 1995

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

Claimant represented by the HONORABLE PAUL MILLER, Attorney at Law, Texarkana, Arkansas.

Respondents represented by the HONORABLE WILLIAM G. BULLOCK, Attorney at Law, Texarkana, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on February 1, 1995. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury. After conducting a de novo review of the entire record, we find that the claimant failed to sustain his burden of proving by a preponderance of the evidence that his employment duties are the major cause of his carpal tunnel syndrome, as required by the Arkansas Workers’ Compensation Law as amended by Act 796 of 1993. Therefore, we find that the administrative law judge’s decision must be affirmed.

[3] The claimant has worked for the respondent employer for approximately 29 years. He worked in the tire room for approximately four years, and he worked in the warehouse for the remaining 25 years. As a warehouseman, his duties involve driving a forklift and loading tires. To assemble tires for a load, he is required to manually take the tires off of one skid and throw them onto another skid. At one point, he testified that he would handle 1000 to 1700 tires during a day in this manner. However, at another point, he indicated that he handled this volume of tires when he first began working in the warehouse but that this has diminished. He also testified that he engages in few activities away from work, and he testified that the activities he does engage in away from work do not result in trauma to his arms. [4] He has experienced problems with his arms to some extent for a few years. However, on approximately December 17, 1993, these problems became so severe that he sought medical treatment from Dr. Jerry Bales, his family physician. Dr. Bales caused electrodiagnostic tests to be performed, and these tests indicated carpal tunnel syndrome. However, he ultimately came under the care of Dr. Mark Young, the respondent employer’s doctor. A carpal tunnel release was performed on January 24, 1994. [5] Since the claimant contends that he 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 his injury was caused by a specific incident and identifiable by time and place of occurrence. Instead, he contends that he sustained an injury as a result of repetitive motion. Consequently, the requirements of Ark. Code Ann. § 11-9-102
(5)(A)(ii)(a) (Cumm. Supp. 1993) are controlling, and the following must be satisfied:

(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment (see, Ark. Code Ann. § 11-9-102
(5)(A)(ii) (Cumm. Supp. 1993); Ark. Code Ann. § 11-9-102 (5)(E)(ii) (Cumm. Supp. 1993); see also, Ark. Code Ann. § 11-9-401 (a)(1) (Cumm. Supp. 1993));
(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) (Cumm. Supp. 1993));
(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) (Cumm. Supp. 1993));
(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) (ii) (a) (Cumm. Supp. 1993));
(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) (Cumm. Supp. 1993)).

[6] If the employee fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, he fails to establish the compensability of the claim, and compensation must be denied. Reed, supra. [7] In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that the alleged compensable injury is the major cause of the disability or need for treatment. Under the amended law, “[m]ajor cause means more than fifty percent (50%) of the cause.” In addition, “[a] finding of major cause shall be established according to the preponderance of the evidence.” In a narrative statement dated February 3, 1994, Dr. Young stated that the claimant’s “symptoms are usually related to microtrauma, overuse and hypertrophy of the transverse carpal ligament, which eventually compresses the underlying nerve which causes these symptoms.” Then, in a narrative statement dated February 16, 1994, Dr. Young made the following statements:

The patient’s carpal tunnel is related to his numerous years of fine manual labor with his hand. It is a work related injury; with microtrauma and hypertrophy at the transverse carpal ligament. This should account for approximately 50% of the injury, the other 50% is probably normal wear related to activities at home.

[8] With regard to this statement, we note that the evidence indicates that Ricky Norton, manager of health, safety, and security for the respondent employer erroneously provided Dr. Young with the job description for an oiler. However, Mr. Norton testified that the description of the oiler job “could just as easily have been the warehouse job.” However, this error does render Dr. Young’s February 16, 1994, opinion subject to some doubt. Nevertheless, we also point out that the definition of “major cause” is not satisfied if the compensable injury is only 50% of the cause of the disability and need for treatment. [9] Nevertheless, the claimant suffers from adult-onset diabetes, and, as early as October 24, 1989, he was diagnosed with a possible peripheral neuropathy secondary to diabetes or a related potassium deficiency affecting his right upper extremity. Furthermore, in a narrative report dated February 25, 1994, Dr. Young opined that the claimant’s “diabetes and neuropathy associated, is playing a large component of his disease process,” and he opined that the symptoms are an “overlying component of diabetes,” which he opined was “more probably the underlying cause for such clinical symptoms.” In this regard, contrary to the arguments of the claimant, we note that, although symptoms consistent with carpal tunnel syndrome are quite commonly caused by repetitive trauma, these symptoms and diagnostic findings are also associated with diabetes. See, The MerckManual, 15th ed. (1988). [10] In short, even if we were to conclude that the claimant’s employment duties involved rapid repetitive motion, which we do not necessarily conclude, we would find that the greater weight of the evidence does not establish that the alleged compensable injury is more than 50% of the disability and need for treatment. The claimant functioned in this job for over twenty years with relatively little problems, and it was not until after he was diagnosed with diabetes that he began to experience significant problems. Furthermore, the problems that he began to experience are just as consistent with a diabetes related neuropathy as they are with trauma caused carpal tunnel syndrome. [11] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that his alleged compensable injury is the major cause of his disability and need for treatment. Therefore, we find that he failed to prove by a preponderance of the evidence that he sustained a compensable injury, as that term is defined by the Arkansas Workers’ Compensation Law as amended by Act 796. Consequently, we find that the administrative law judge’s decision must be, and hereby is, affirmed. This claim is denied and dismissed. [12] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[13] Commissioner Humphrey dissents.