CLAIM NO. F112572
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 25, 2003
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by HONORABLE WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal to the Full Commission an Administrative Law Judge’s opinion filed on May 15, 2002, which found that the claimant had proven by a preponderance of the evidence that her bilateral carpal tunnel syndrome is compensable, and that she is entitled to temporary total disability benefits and related medical treatment. After reviewing the entire record de novo, the Full Commission finds that the claimant failed to prove by a preponderance of the evidence that her alleged work-related injury was the major cause of her disability and need for treatment. We therefore reverse the opinion of the Administrative Law Judge.
The issue presented is the compensability of the claimant’s carpal tunnel syndrome. Since the claimant asserts that she sustained a work-related gradual onset of carpal tunnel syndrome, she is not required under the provisions of Act 796 of 1993 to establish that her work duties required rapid repetitive motion in order to establish the compensability of her carpal tunnel syndrome injury. Kildow v. Baldwin Piano Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). However, she must still prove by a preponderance of the evidence that her injury arose out of and in the course of her employment, and that this work-related injury is the major cause of her disability or need for medical treatment. Ark. Code Ann. §§ 11-9-102(4)(A)(ii) and 11-9-102(4)(E)(ii)) (Repl. 2002).
The Administrative Law Judge’s opinion attached great weight to a note from Dr. Heinzelmann, written on October 26, 2001, which stated that the claimant’s bilateral carpal tunnel syndrome was related to her work, and was not caused by her diabetes. The Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Green Bay Packing v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999).
While objective medical evidence is not required to establish a causal connection between the claimant’s employment and her injury, and while the claimant is not required to establish that her work duties required rapid, repetitive motion, Dr. Heinzelmann’s deposition testimony reveals that his opinion was based upon inaccurate information provided to him by the claimant regarding the nature of her employment duties, as the evidence demonstrates that the claimant’s job duties were not as repetitive and hand-intensive as she described to Dr. Heinzelmann.
Dr. Heinzelmann’s written opinion of October 26, 2001, was based upon his understanding that the claimant worked as a “computer data entry clerk” and performed rapid, repetitive work with both hands in the form of constant computer data entry. The testimonial evidence in this case does not support that characterization of the claimant’s work. The claimant agreed during her testimony that she made telephone calls to as many as 150 people daily, using a mouse to command her computer to dial the telephone numbers, and agreed that the majority of her time was spent talking to the customers she reached. This characterization of the claimant’s job duties was corroborated by the testimony of Ms. Claesen, who once performed the same job. While the claimant used her mouse to move between various computer screens during the course of her conversations, and typed notes to herself regarding the contacts she had made, these activities in no way amounted to “constant computer data entry.”
When Dr. Heinzelmann was provided with a more complete picture of the claimant’s actual daily job duties during his deposition, he indicated that such activities were not the sort that would cause carpal tunnel syndrome. He even indicated that he would not object to the claimant returning to her job duties, as they would not be expected to cause a recurrence of her condition.
The claimant testified that she first noticed her symptoms while driving and gripping a steering wheel. She acknowledged that during the pertinent time frame, she was making a 30-mile drive almost every night. The evidence also demonstrated that the claimant was in a motor vehicle accident in August 1993, which caused her to seek medical care for headaches, neck pain, and tingling in her arms and hands bilaterally which occurred while at rest and while driving. The claimant’s medical treatment for the injuries resulting from the 1993 MVA continued in 1994 and 1995, at which time an MRI identified an HNP at the C5-6 level. Past medical records also demonstrate that when the claimant was working for the post office in early 1998 she was treated for cervical radiculitis, and shooting neuropathic pain in both upper extremities.
Dr. Heinzelmann’s deposition testimony demonstrated that the inaccurate work history provided to him by the claimant was not the only misconception upon which he based his opinion. The claimant provided a history to him of intermittent pain and numbness in both hands, ongoing only since the latter part of the year 2000. Dr. Heinzelmann was given no information regarding claimant’s previous treatment for the HNP; no information about her problems with bilateral arm pain and numbness of the fingers in 1994 and 1995; and no information about her employment with the post office in 1998 and the neuropathic pain she developed in both upper extremities during that time.
The claimant’s burden of proof regarding causation cannot be satisfied by merely dismissing her diabetic condition as the source of her carpal tunnel syndrome, as argued by the claimant in her brief. Even if her work-related activities did aggravate her bilateral carpal tunnel syndrome symptoms, we could not find that such an injury was the major cause of the claimant’s disability and need for treatment. We find that Dr. Heinzelmann’s note of October 26, 2001, is entitled to little weight, as it was based on erroneous information regarding the claimant’s actual job duties and upon an incomplete medical history. The claimant’s history of symptoms similar to those she experienced with her carpal tunnel syndrome dating back to 1993, are evidence of alternate reasonable non-work-related explanations for her carpal tunnel syndrome. Therefore, we cannot find that the claimant proved by a preponderance of the evidence that her alleged work-related injury was the major cause of her disability and need for treatment. We reverse the Administrative Law Judge’s opinion and deny and dismiss this claimant’s claim.
IT IS SO ORDERED.
_______________________________ JOE E. YATES, Commissioner
Chairman Reeves concurs.
CONCURRING OPINION
OLAN W. REEVES, Chairman
I concur in the principal opinion’s findings. I write separately only to address the issue of the weight to which Dr. Heinzelmann’s deposition opinions are entitled.
The Administrative Law Judge’s finding on causation states that it is based on Dr. Heinzelmann’s medical reports, and the Administrative Law Judge makes no reference to the doctor’s subsequent deposition testimony.
The respondents’ attorney took the doctor’s deposition after the respondents attorney had taken the claimant’s deposition and after the written report relied on by the Administrative Law Judge. The claimant’s attorney elected not to attend the doctor’s deposition. As I interpret page 13 of the doctor’s deposition, based on a history provided by the respondents’ attorney, the doctor retracted his earlier written opinion on causation in the claimant’s favor.
The dissent argues that the respondents’ attorney gave the doctor an inaccurate description of the claimant’s job duties in the deposition, so that the doctor’s deposition testimony should be accorded no weight. When I compare the doctor’s deposition testimony on and around page 13 to the claimant’s relevant hearing testimony between pages 15 and 30 of the hearing transcript, I do not see anything that indicates to me that the respondents’ attorney gave the doctor any information that would necessarily render his deposition testimony invalid for lack of a reasonably accurate history. In fact, I do not see any evidence to persuade me that what the attorney described to the doctor in the deposition is any different than what the claimant told the attorney in her deposition, although it is difficult to tell for sure since neither party put the claimant’s deposition into the record. I therefore accord the doctor’s deposition testimony at issue great weight.
Since I do not agree with the dissent’s argument that the doctor’s deposition testimony is invalid, since the deposition testimony was given after the written opinion relied on by the Administrative Law Judge, since the deposition testimony does not support the claimant’s compensability theory, and since the claimant’s attorney did not show up at the deposition to ask questions or otherwise put into evidence any other doctor’s opinion to rebut what Dr. Heinzelmann’s said in his deposition, I find that Dr. Heinzelmann’s deposition opinion establishes by a preponderance of the evidence that the claimant has failed to establish a causal connection between her medical condition and her work duties.
______________________________ OLAN W. REEVES, Chairman
Commissioner Turner dissents.
DISSENTING OPINION
SHELBY W. TURNER, Commissioner
I must respectfully dissent from the opinion of the Commission finding that claimant failed to prove that she sustained compensable bilateral carpal tunnel syndrome. The opinion of the Administrative Law Judge should be affirmed.
This case really boils down to whether there is a causal connection between claimant’s carpal tunnel syndrome and her employment. Initially, I point out that there is insufficient evidence that claimant’s condition is related to her diabetes. First, claimant’s diabetes is under control through medication and diet. Second, and more importantly, Dr. Peter R. Heinzelmann, an orthopedic surgeon and claimant’s treating physician, reported that “[i]f her diabetes was the cause of her carpal tunnel syndrome, then I would expect that the ulnar nerve latency times would be similar to those of the median nerve. However, the ulnar nerve latency times are normal.”
Claimant alleges that she sustained a gradual onset injury as a result of her job duties. There is no requirement that claimant’s carpal tunnel syndrome be caused by rapid repetitive motion. However, she must prove that her condition arose out of the employment. In my opinion, claimant has met her burden of proof by a preponderance of the evidence.
Claimant is a telemarketer selling ads for school posters charting athletic game schedules. Claimant is the team leader of a group of about 10 employees. She spends about 40 minutes each day writing down production information related to the team’s efforts. She also organizes and distributes various forms of paperwork to each team member. Claimant sits in front of a computer making calls for the remainder of her shift. She wears a phone headset which is hooked up to a dialer in the computer. A mouse is used to make contact with approximately 150 customers in a day. Each phone call lasts about three minutes. Claimant estimated that 70% of these contacts require her to switch to various screens on the computer during each call. She also guessed that in about half the calls, she types “in depth” comments about the call. Claimant maintained that she is almost constantly working with her hands and that about 90% of her work activity is what she considers hand intensive.
In a report dated October 26, 2001, Dr. Heinzelmann stated that he believes claimant’s bilateral carpal tunnel syndrome “is related to her work activities which require rapid repetitive work with both hands.” Dr. Heinzelmann also stated that claimant’s job “entails nearly constant computer data entry.”
The Commission’s opinion in this case appears to accuse claimant of intentionally misleading Dr. Heinzelmann about her job duties. However, claimant explained her conversation with Dr. Heinzelmann in the following manner:
Q. All right. Now, when you went to see Dr. Heinzelmann on October 26, you told him that you did nearly constant computer data entry, or at least that’s what his records reflect. And I think you told me even in your deposition on your page 46, 47, that while you use a computer, you have no idea where he got that information.
A. I mean that — I told him, he asked me, “what do you do all day” and I said, I sit at a computer and [sic] phone calls on a computer and enter data.
Q. Would you agree with me that the character, description by Dr. Heinzelmann in this report of nearly constant computer data entry is incorrect?
A. I don’t know the exact definition of computer data entry. I mean, I sit at a computer all day. I make phone calls and enter data. I don’t know what you’re —
Q. But you use your — would you agree with me that you use your right arm more because you’re — because you use it to click to dial and click to bring up all these screens?
A. I use my right arm to use the mouse. I type with both hands.
Q. And the only time that you are typing is just making these comments?
A. Which, I make a lot of comments.
In his deposition, Dr. Heinzelmann testified that performing repetitive activities with the hands can cause carpal tunnel syndrome. When respondents’ attorney asked Dr. Heinzelmann if claimant’s carpal tunnel syndrome was caused by her employment, if his description of her job duties was correct, Dr. Heinzelmann responded, “it doesn’t sound like it is.” However, in my opinion, respondents’ attorney was not quite accurate in describing claimant’s job duties, especially the amount of typing she does. Respondents’ attorney repeatedly told Dr. Heinzelmann that claimant only had to type one line such as “speak to George” or “call next week.” Claimant actually testified, as noted above, that she typed detailed comments pertaining to her calls. Even respondents’ witness, Nicole Claesen, acknowledged that claimant typed more detailed comments than some employees.
Based on claimant’s credible testimony concerning the repetitive and hand-intensive nature of her job duties, and the lack of sufficient evidence of any reasonable nonwork-related explanation for her carpal tunnel syndrome, I find that claimant has proven by a preponderance of the evidence that her bilateral carpal tunnel syndrome is causally related to her employment. Accordingly, the opinion of the Administrative Law Judge should be affirmed.
______________________________ SHELBY W. TURNER, Commissioner