CLAIM NO. E515842
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 5, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by DONALD S. RYAN, Attorney at Law, Little Rock, Arkansas.
Respondent represented by RICHARD S. SMITH, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed November 15, 1996 finding that claimant sustained compensable bilateral carpal tunnel syndrome. Based upon our denovo review of the entire record, we find that claimant has failed to meet her burden of proof.
Q. I thought you testified that, when you were doing this work by hand, you sit there and write for hours at a time without stopping. So, now are you telling me that your work really involves moving stuff around and plugging stuff —
A. No, sir, I believe what I said that I was doing either one or the other all the time.
Q. Okay. Okay. So, — fair enough. When you’re working the word processor, you basically are setting up your format with the mouse. You don’t type with the mouse. Right?
A. No, sir, you don’t type —
Q. Okay.
A. — with the mouse.
Q. So, you’re not sitting there for hours just clicking that mouse repeatedly and without a break?
A. I’m doing both.
Q. Yeah.
A. I’ll get where I need to be on the screen, put in something, move to where else I need to do and —
Q. Right. So, you — let me stop you.
A. Okay. Surely.
Q. So, if I understand your testimony, you alternate between typing on the keypad, the text of what you’re composing, —
A. Yes, sir.
Q. — and doing various editing functions with the mouse, bold type, underline, changing margins, whatever you need to do.
A. Well, not only that, but simply moving to where I need to be in the text —
Q. Right. Move the cursor down to where you want to start or —
A. Yes, sir.
Q. — moving a block around?
A. Yes, sir.
Q. So, the task that you are performing when you’re working at that computer with your hands vary.
A. That’s true.
Q. Sometimes you’re using the mouse, sometimes you’re typing —
A. That’s true, yes, sir.
[4] With regard to writing the revisions in longhand, claimant testified that she usually composes the changes prior to beginning writing. Once claimant would begin to write she would not have to stop to compose. However, she did state that she would occasionally stop writing to review what she had written and to make changes. Claimant also testified that during the period of time when her symptoms began she would have to stop what she was doing in order to take phone calls because she did not have voice mail at that time. With regard to breaks, claimant explained that about once every hour she would stop what she was doing to take a trip down the hall. [5] The claimant’s injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Ark. Code Ann. § 11-9-102as amended by Act 796 of 1993. We have held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Act 796. Jerry D. Reed v. ConAgraFrozen Foods, FC Opinion filed Feb. 2, 1995 (E317744). The claimant does not contend that the injury is identifiable by time and place of occurrence. Indeed, the claimant contends that the injury is a rapid repetitive motion injury. Consequently, in order to prevail on a rapid, repetitive motion claim, a claimant must prove by a preponderance of the evidence that he sustained an injury causing internal or external harm to the body which arose out of and in the course of their employment and which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(5)(A)(ii) and § 11-9-102(5)(E)(ii) (Repl. 1996). A claimant must also prove by a preponderance of the evidence that the injury was caused by rapid repetitive motion, and that the injury was the major cause of the disability or need for treatment. See Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) and §11-9-102(5)(E)(ii) (Repl. 1996). Finally, Ark. Code Ann. §11-9-102(5)(D) requires that a claimant must establish a compensable injury “by medical evidence supported by `objective findings’ as defined in § 11-9-102(16).” Ark. Code Ann. §11-9-102(5)(D) (Repl. 1996). See also Jean Carter v. AidTemporary Services, Inc., FC Opinion filed May 12, 1995 (E404813). [6] If an employee fails to establish by a preponderance of the credible evidence any of these requirements for establishing the compensability of the alleged injury, he fails to establish the compensability of the claim and the claim must be denied. Reed v.ConAgra, supra. [7] In our opinion, a review of the evidence indicates that claimant failed to prove by a preponderance of the credible evidence that she sustained a compensable rapid repetitive motion injury. [8] After reviewing the record as a whole, and without giving the benefit of the doubt to either party, we cannot find that claimant has proven by a preponderance of the evidence that she sustained a compensable injury while employed by respondent. While it is questionable whether claimant has satisfied both the rapid repetitive motion and the major cause elements of her claim, we need not reach this level of analysis as we find that claimant has failed to prove the compensability of her injury by objective medical findings. [9] Although claimant tested positive for the Phalen’s and Tinels test on both of her hands, objective findings such as a nerve conduction test was not performed. We have previously held that Phalen’s and Tinel’s tests are based upon subjective responses and are not objective tests. Cynthia Duke v. Regis Hairstylists, F.C. Opinion filed September 12, 1995 (E402336), aff. 55 Ark. App. 327, ___ S.W.2d ___ (1996). Accordingly, claimant was diagnosed with carpal tunnel syndrome based solely upon subjective medical findings. We cannot agree with claimant’s argument that merely because claimant underwent carpal tunnel release surgery, the surgery provides an objective finding of carpal tunnel syndrome. Surgery is a procedure, not a finding. Moreover, even if findings were made during the surgical procedure, claimant did not introduce the operative report to establish any findings made during the surgery. From all evidence of record, the surgery was merely a procedure performed on the claimant, it did not result in objective medical findings. Furthermore, a conclusion that claimant’s condition improved after surgery is subjective, in and of itself, and does not establish objective findings of an injury. Consequently, we cannot find that claimant presented evidence of objective medical findings in this claim. [10] Accordingly, we find the claimant has failed to meet her burden of proof and we, therefore, reverse the Administrative Law Judge. [11] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[12] Commissioner Humphrey dissents.[13] DISSENTING OPINION
[14] I must respectfully dissent from the majority opinion finding that claimant failed to prove that she sustained a compensable gradual injury in the form of bilateral carpal tunnel syndrome.