DUKE v. REGIS HAIRSTYLISTS, 1995 AWCC 188

CLAIM NO. E402336

CYNTHIA DUKE, EMPLOYEE, CLAIMANT v. REGIS HAIRSTYLISTS, EMPLOYER, RESPONDENT and WAUSAU INSURANCE CO., INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 12, 1995

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

Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE MARIAM T. HOPKINS, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on November 7, 1994. In that opinion and order, the administrative law judge found that the claimant sustained a compensable injury. After conducting a de novo review of the entire record, we find that the claimant failed to satisfy the requirements necessary to establish a compensable injury. Therefore, we find that the administrative law judge’s decision must be reversed.

[3] The claimant has been employed by the respondent employer as a hairstylist for approximately seven years. In early 1994, she began experiencing sharp pains in the palms of the hands and wrists of both extremities, with the problems in the left extremity being more severe. When the problems persisted, she sought treatment from her family physician, Dr. Timothy Hodges, and, after examining the claimant on March 7, 1994, Dr. Hodges diagnosed carpal tunnel syndrome. Dr. Hodges subsequently referred the claimant to Dr. Earl Peeples, an orthopedic specialist. Based solely on his clinical examination of the claimant on April 4, 1994, Dr. Peeples concluded that the claimant demonstrated “classic findings” consistent with carpal tunnel syndrome, and he opined that the condition was directly related to the claimant’s employment activities. [4] 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 carpal tunnel syndrome as a result of the gradual onset of her employment duties. 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)).

[5] If the employee fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, she fails to establish the compensability of the claim, and compensation must be denied. Reed, supra. [6] We find that the claimant failed to establish her injury with medical evidence supported by objective findings, as required by Ark. Code Ann. § 11-9-102 (5)(D) (Cumm. Supp. 1993). In this regard, Ark. Code Ann. § 11-9-102 (5)(D) provides the following:

A compensable injury must be established by; medical evidence, supported by “objective findings” as defined in § 11-9-102 (16).

[7] With regard to “objective findings,” Ark. Code Ann. § 11-9-102
(16) provides the following:

“Objective findings” are those findings which cannot come under the voluntary control of the patient. When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers’ Compensation Commission, nor the courts may consider complaints of pain; for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg raising tests or range-of-motion tests shall not be considered objective findings. Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty. [Emphasis added].

[8] Neither this Commission nor the Court has previously considered the meaning of the statutory definition of “objective findings.” In considering the meaning of this statutory provision in light of the evidence presented in this claim, we note that, as amended by Act 796, the provisions of the Arkansas Workers’ Compensation Law are now to be strictly construed. Ark. Code Ann. § 11-9-704 (c)(3) (Cumm. Supp. 1993). A strict construction “is construction of a statute or other instrument according to its letter, which recognizes nothing that is not expressed, takes nothing that is not expressed, takes the language used in its exact and technical meaning and admits no equitable considerations or implications.” Black’s Law Dictionary,sura at 283; see also, Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993; (1993); Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980); Arkansas State Highway Commission v. S.W.Bell, 206 Ark. 1099, 178 S.W.2d 1002 (1944) (McFaddin, J., dissenting). Furthermore, we note that the General Assembly expressly admonished this Commission not to liberalize, broaden, or narrow the workers’ compensation statutes. Ark. Code Ann. § 11-9-1001 (Cumm. Supp. 1993). Thus, applying the strict construction doctrine and considering this legislative admonishment, we cannot read anything into the Act that is not clearly stated in its language, unless the failure to do so would do manifest violence to the intent of the General Assembly. [9] With regard to the medical findings presented in this claim, the diagnosis of carpal tunnel syndrome by Dr. Peeples and by Dr. Hodges was based solely on their clinical findings. Dr. Peeples described his findings as follows:

On examination the patient is in no acute distress. Examination of the hands reveals a strongly positive left and mildly positive right Tinel’s sign. She has a positive compression test on the left. Hyperextension and hyperflexion tests also tend to cause discomfort and numbness in the median nerve distribution.

[10] In deposition testimony, Dr. Peeples described each of the clinical procedures upon which he based his diagnosis, and his testimony indicates that a positive finding for each test is based solely on the patient’s description of the sensation produced by a physical stimulus created by the physician. According to Dr. Peeples’ testimony, a physician performs the Tinel’s test by lightly tapping the median nerve, and the finding is considered positive if the patient describes a tingling sensation distally in the distribution of the nerve. Similarly, Dr. Peeples testified that the finding of a positive compression test is based on the patient’s description of tingling after the physician applies pressure to the median nerve with two fingers. Likewise, Dr. Peeples testified that positive findings to the hypertension test and hyperextension test are based on the patient’s description of specific sensations that he asks about. With regard to the lack of any diagnostic procedures such as electrodiagnostic studies to confirm his diagnosis, Dr. Peeples testified as follows:

I did not need to confirm it. I was able to make the diagnosis based on her physical exam.

[11] With regard to the basis of his diagnosis, Dr. Peeples also testified as follows:

Based upon my expertise as a fellowship trained hand surgeon, based upon the history the patient gave me, and based upon examination of thousands of patients I made a diagnosis based on my expertise, not on the patient’s response. That was merely one part of the pieces of the puzzle that go together to make the diagnosis.

[12] Dr. Hodges’ report indicates that his diagnosis was based on a positive Tinel’s test and a positive Phalen’s test, which is also based on the patient’s description of the sensation produced by the physician’s clinical procedure. [13] As indicated, we find that these findings do not satisfy the statutory definition of “objective finding.” As discussed, medical findings are objective findings under the amended law only if they “cannot come under the voluntary control of the patient.” Where the finding is based solely on the patient’s description of physical sensations which cannot otherwise be observed and evaluated by the physician, the patient obviously has the ability to knowingly and intentionally influence the finding by feigning the sensation or by exaggerating the nature or extent of the sensation experienced. Therefore, since the patient can voluntarily control findings which are based solely on the patient’s description of physical sensations produced by the physician’s clinical procedures, we find that such findings do not satisfy the statutory definition. [14] In reaching this conclusion, we recognize, as Dr. Peeples testified, that the physician may limit the patient’s ability to voluntarily influence the finding by using procedures designed to determine whether the patient’s responses are not straightforward and genuine. However, even though the use of such procedures may limit the patient’s ability to voluntarily influence the finding, that ability cannot be eliminated entirely, and the statutory definition of “objective finding” is couched in very clear and precise language which precludes any finding from satisfying the definition if there is any reasonable possibility that the finding could come under the voluntary control of the patient to any extent whatsoever. While such findings remain an invaluable tool for the physician to use in making diagnoses and evaluating the condition of the patient, such findings simply are not sufficient to establish that the existence of a condition is compensable under the Arkansas Workers’ Compensation Law, as amended by Act 796 of 1993. [15] In the claim presently before us, the only medical findings contained in the record are based solely on the claimant’s description of physical sensations elicited by her physician’s clinical procedures. Therefore, we find that the claimant failed to establish a compensable injury with medical evidence, supported by objective findings, as required by Ark. Code Ann. § 11-9-102 (5)(D). Consequently, we find that the claimant failed to satisfy the requirements necessary to establish a compensable injury under the amended law. [16] Although not necessary for this decision in light of our resolution of this claim, we note that the administrative law judge found that carpal tunnel syndrome is specifically categorized as a condition caused by rapid, repetitive motion and, consequently, that claimants seeking compensation for carpal tunnel syndrome are not required to present proof that their condition was caused by rapid, repetitive motion which is work related. We do not accept this interpretation of the statute. Clearly, the General Assembly sought to establish safeguards to assure that only workers sustaining legitimate work-related injuries are compensated, and the General Assembly sought to achieve this goal, in part, by creating additional requirements for establishing the compensability of conditions where, due to the nature of the condition, the causal relationship between the employment and the disability is more difficult to determine. Carpal tunnel syndrome is such a condition, and nothing in the language of the statute indicates that the General Assembly intended to except carpal tunnel syndrome from the heightened proof requirements imposed on other similar conditions. Instead, due to the complicated nature of carpal tunnel syndrome and its prevalence, the General Assembly obviously wanted to assure that the Act was not construed in such a manner that carpal tunnel syndrome did not fall into either category of compensable injury recognized by the amended law. Therefore, we conclude that all of the requirements necessary to establish an injury caused by rapid, repetitive motion must be established in order to establish the compensability of carpal tunnel syndrome, including proof that the condition was caused by rapid, repetitive motion. [17] 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 she sustained a compensable injury. Therefore, we find that the administrative law judge’s decision must be reversed. This claim is denied and dismissed. [18] IT IS SO ORDERED.

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

[19] Commissioner Humphrey dissents.