CLAIM NO. E603760
FRANCILLE K. HENDERSON, EMPLOYEE, CLAIMANT v. CHEM-FAB CORPORATION, EMPLOYER, RESPONDENT and WAUSAU INSURANCE COMPANIES, INSURANCE CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 20, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by CHARLES R. PADGHAM, Attorney at Law, Hot Springs, Arkansas.
Respondents represented by MICHAEL P. VANDERFORD, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] In an opinion filed December 19, 1996, the Administrative Law Judge held that the claimant proved, by a preponderance of the evidence, that she sustained a gradual onset injury in the form of carpal tunnel syndrome. The Administrative Law Judge awarded all appropriate benefits, which included future surgery and temporary total disability benefits for the claimant’s healing period if the surgery is performed. Based upon our de novo review, we find that the claimant proved she sustained a work-related injury in the form of carpal tunnel syndrome. Accordingly, we affirm the decision of the Administrative Law Judge.
[3] At the hearing below, the claimant contended that she sustained bilateral carpal tunnel syndrome during the course and scope of her employment with the respondent. The respondent contended below, as they contend on appeal, that the claimant did not sustain a compensable injury. The respondent specifically argues that the claimant’s employment duties did not involve rapid repetitive motion, and that the alleged injury was not the major cause of her disability or need for treatment. [4]
Act 796 of 1993 is applicable to the facts of this case as the claimant contends she sustained a compensable injury after July 1, 1993. Because the claimant contends that she sustained a gradual onset injury in the form of carpal tunnel syndrome, and not an injury from a specific incident, the claimant must prove by a preponderance of the evidence that she sustained an “injury causing internal or external harm to the body and in the course of employment.” Ark. Code Ann. §
11-9-102(5)(A)(ii) (Repl. 1996). The claimant must also prove that the gradual onset injury of carpal tunnel syndrome was “caused by rapid repetitive motion,” and work was the major cause of her injury. What constitutes rapid repetitive motion is a question of fact for the Commission to resolve and must be determined on a case by case basis. [5] The respondent first contends that the claimant failed to prove her employment duties were rapid and repetitive in nature. The Arkansas Court of Appeals has very recently discussed carpal tunnel syndrome in the case of Kidlow v. Baldwin PianoOrgan, ___ Ark. App. ___, ___ S.W.2d ___ (Opinion del. July 2, 1997). The Court reiterated its ruling in Baysinger v. AirSystems
55 Ark. App. 174,
934 S.W.2d 230 (1996), that carpal tunnel syndrome does not require that the claimant proved she was performing the “exact, or almost exactly, the same movement again and again,” ruling that the Commission’s decision inThrockmorton v. J J Metals, Full Commission Opinion filed August 14, 1995 (
E405318), is erroneous as a matter of law. The court held in Baysinger that carpal tunnel syndrome can be compensable even if it is a result of various multiple tasks and not the same task over and over again. Kidlow, supra, went on to define rapid in its “ordinary usage” as meaning “swift or quick.” [6] The evidence presented in this case clearly indicated that the claimant’s job duties were rapid and repetitive in nature. Terry James Rowton testified that he worked in the same position in the paint room as the claimant. Mr. Rowton classified the claimant’s position as being rapid and repetitive, using a six pound paint gun for several hours each shift. He testified their position required them to mix paint, load the paint guns, place the parts to be painted on trays, and then spray the parts with paint in a continuous sweeping motion. While the respondent attempts to argue that the duties of painting did not require the wrist to bend, Mr. Rowton disputed this argument, testifying “you’ve got to twist” your wrist to reach the “negative angles.” The claimant, and Mr. Rowton, were also required to clean the parts and use a scribe knife to cut away excess. Mr. Rowton corroborated the claimant’s testimony that the position and duties were hand intensive, “using your hands constantly.” The testimony indicated that the painting required a constant and consistent sweeping motion in a fast manner so the paint went on evenly, constantly pulling the gun’s trigger. Testimony indicated that up to seventy-five percent of the claimant’s work time was actually spent in the booth painting. [7] The claimant testified that she had previously been employed by the respondent in 1989, and she developed carpal tunnel syndrome shortly thereafter in 1990. However, the claimant did not contend that the 1990 carpal tunnel syndrome was work-related. She testified she underwent carpal tunnel syndrome release surgery in 1990, and she was laid off by the respondent in November 1991. The claimant was re-hired by the respondent in November of 1994 and began buffing on skins, a position which obviously requires rapid repetitive motions as the claimant’s unrebutted testimony clearly indicated. [8] The claimant was eventually moved to the paint room in July 1995, where she performed the duties as Mr. Rowton described above. She testified that while she did experience numbness a little after her 1990 surgery, the claimant did not experience continuous problems with her wrists until two or three months after beginning the paint position. The claimant presented unrebutted testimony that she reported her wrist problems to three different supervisors: Keith Jacobs, Rick Golden, and David Webb. The claimant’s testimony was essentially the same as Mr. Rowton’s concerning her job duties in that it entailed rapid repetitive motion. [9] We believe that the testimony presented above is credible and clearly supports the claimant’s argument that her position was a hand intensive position which required fast and constant movements with various tasks. Because of the fast-paced painting, the constant motion required, and the other preparation tasks that were done at a fast pace, we find that the claimant proved her duties required rapid repetitive motion, and we affirm the Administrative Law Judge’s decision. [10] The respondent also contends that the claimant failed to prove compensability, arguing the claimant failed to show her employment duties were the “major cause” of her carpal tunnel syndrome. As the respondent correctly points out, the burden of proof as set out in Ark. Code Ann. §
11-9-102(E)(ii) (Repl. 1996), requires the claimant to prove that her “compensable injury is the major cause of the disability or need for treatment.” “Major cause”, as defined in Ark. Code Ann. §
11-9-102(14) (Repl. 1996), “means more than fifty percent (50%) of the cause” or need for treatment. [11] The respondent cites Dr. Harris Gellman’s deposition and argues that he never could conclude that the major cause of the claimant’s carpal tunnel syndrome was a result of her job duties. However, a thorough review of all of Dr. Gellman’s testimony indicates that he was simply refusing to speculate on the major cause aspect of the claimant’s case due to not knowing her work history. Dr. Gellman did set out certain factors which the Commission could consider in deciding if the major cause of her condition was a result of her duties with the respondent. Dr. Gellman testified that if you do surgery on carpal tunnel syndrome the first time and there is “at least a one-month period of relief of your symptoms, then I feel comfortable saying that this is a new onset problem because you were better for awhile and then something happened to cause it to recur.” [12] The evidence in this case indicated that the claimant underwent her initial carpal tunnel syndrome release surgery in early 1990. The claimant worked five years without any significant wrist complaints until she reported new problems in October 1995. EMG and nerve conduction studies performed in June 1996, were consistent with bilateral carpal tunnel syndrome. [13] Based on the testimony and clear facts of this case, we find that the claimant’s compensable injury was the major cause of her need for treatment. The claimant was able to work for five years after the 1990 surgery without any complaints. It was not until October of 1995 that her wrist problems arose which was the cause and need for her treatment. The claimant performed two jobs for the respondent, both of which required rapid repetitive motion. This evidence all indicates that the major cause of the claimant’s current carpal tunnel syndrome problems were a direct result of her employment duties with the respondent. It had been years since she needed any treatment, evidence which supports Dr. Gellman’s opinion that this was a “new onset problem” and not simply a recurrence of her earlier problem. [14] Accordingly, we affirm the Administrative Law Judge’s opinion in all respects. 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). [15] For prevailing on this appeal before the Commission, the claimant’s attorney is here by awarded an additional attorney’s fee in the amount of $250.00 as provided by Ark. Code Ann. §
11-9-715(b) (Repl. 1996). [16] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[17] Commissioner Wilson dissents.
[18] DISSENTING OPINION
[19] I respectfully dissent from the majority’s opinion finding that claimant sustained compensable carpal tunnel syndrome. Based upon my de novo review of the entire record, I find that claimant has failed to meet her burden of proof. Specifically, I find that claimant has failed to satisfy the major cause requirement for gradual onset injuries.
[20] The medical evidence is clear that claimant has failed to satisfy the major cause requirement of a gradual onset injury. Claimant complained of increased pain and numbness over the pastseveral years, including the time prior to returning to work for respondent. The objective nerve conduction test revealed that claimant suffers from a “chronic,” meaning longstanding, and “acute,” meaning present, problem of carpal tunnel syndrome. Dr. Harris Gellman, claimant’s treating physician specifically testified that the increased pain and numbness over the past few years “lead me to believe it’s an ongoing problem. I can’t give you a beginning point; I can only say that it’s an ongoing problem.” When asked if he could determine whether claimant’s current condition was from her long-standing chronic carpal tunnel syndrome or from a more recent incident Dr. Gellman testified:
It’s almost impossible for me to tell whether they are due to from before her first surgery or anytime since then. You know, again, I don’t know if she ever had relief of her symptoms after the second surgical procedure, which is usually to me a good indicator. In other words, if I do surgery on you, and you have carpal tunnel syndrome and I release your carpal tunnel and you have at least a one month period of relief of your symptoms, then I feel comfortable saying that this is a new onset problem because you were better for a while and then something happened to cause it to re-occur. Whereas, if you come to me and you have carpal tunnel syndrome and I do a surgery — and I know that if I do it, it’s an adequate decompression — but you never get any better, then I don’t know why you’re — whether it’s your original carpal tunnel that’s causing your problem or if it’s an ongoing issue or if there is something else. There is no way of sorting out — you have to have some point of reference.
[21] Even assuming that claimant received a period of relief following her first two carpal tunnel surgeries, the evidence does reflect that claimant’s increase in pain and numbness over the past few years preceded claimant’s re-employment with respondent. Dr. Gellman testified that this increased pain and numbness over the past several years reveals that claimant’s carpal tunnel syndrome was of an ongoing problem. All of this medical evidence combined clearly shows that claimant’s alleged work-related injury was not the major cause of her disability or need for treatment. Claimant’s need for treatment was due to her chronic, long-standing carpal tunnel syndrome condition, which preceded her return to work with respondent. [22] Accordingly, based upon all the evidence as a whole, and without giving the benefit of the doubt to either party, I find that claimant has failed to meet her burden of proof. Therefore, I respectfully dissent from the majority opinion. [23] MIKE WILSON, Commissioner