CLAIM NO. F613227
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 12, 2008
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE EVELYN BROOKS, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by HONORABLE CURTIS NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that he sustained compensable injuries to his wrist, left elbow, left shoulder and neck. Based upon our de novo review of the record, we find that the claimant has failed to meet his burden of proof. Accordingly, we hereby reverse the decision of the Administrative Law Judge.
The claimant worked for the respondent employer in its chrome plant in Fayetteville. The claimant started working there in May of 1997 and continued through the time
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the plant closed down in August of 2006. The claimant originally filed his Form AR-C on or about December 6, 2006, claiming injuries to both wrists, his left elbow and left shoulder. After an investigation, the respondents accepted the claim as compensable and authorized additional medical treatment. At the conclusion of additional diagnostic testing, the respondents again controverted this claim and in the prehearing order filed September 5, 2007, the issues to be litigated were the compensability of the claimant’s neck problems, left shoulder injury and left elbow injury. However, prior to the hearing the parties confirmed that based on the diagnostic testing, the respondents were controverting the claimant’s injuries to both wrists, left shoulder, left elbow and neck.
The claimant was initially treated by Dr. Thorn on November 30, 2005, and at that time Dr. Thorn determined the claimant was suffering from bilateral tendinitis of the wrists and left ulnar neuropathy. Nerve conduction studies were ultimately performed on December 6, 2006, which reflected bilateral Carpal Tunnel Syndrome and bilateral ulnar entrapment neuropathy of the left elbow. As of January 15,
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2007, Dr. James Moore had noted that the claimant was starting classes at Northwest Arkansas Community College, his symptoms had improved in the right hand and recommended continued conservative treatment. In his report of March 15, 2007, there is the first notation of pain in the left shoulder and Dr. Moore noted that this occurred while the claimant was working with his keyboard. Dr. Moore ultimately had another set of nerve conduction studies scheduled with Dr. Kaplan. In his report of June 5, 2007, Dr. Kaplan determined that the nerve conduction studies were normal but suggested possible left-sided cervical radiculopathy. In his report of June 11, 2007, Dr. Moore confirmed that there were no abnormalities in the nerve conduction studies and at that time the plan was to rule out cervical radiculopathy.
In his report of July 9, 2007, Dr. Kaplan again noted that he found no evidence of Carpal Tunnel Syndrome, nor any evidence of ulnar neuropathy in the left elbow and related the claimant’s problems to soft tissue disturbances rather than any neurological disease. An MRI of the cervical spine administered on July 18, 2007, reflected a straightening of the cervical lordotic curvature and small posterior osteophytes. In his report of August 15, 2007, Dr.
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Kaplan provided a summary of his evaluation of the claimant and determined that the cervical MRI reflected degenerative changes and suggested conservative treatment. He again confirmed that there were no objective findings of Carpal Tunnel Syndrome.
At that point in time the claimant returned to the Ozark Orthopaedic Clinic and was seen by Dr. Coker on August 31, 2007, who referred the claimant to a hand specialist. The claimant was seen by Dr. Benafield on September 24, 2007. It was Dr. Benafield’s impression that the claimant was suffering from bilateral Carpal Tunnel Syndrome, bilateral cubital tunnel syndrom and bilateral scapholunate ligament insufficiency.
The claimant asserts that he sustained a work-related gradual onset of carpal tunnel syndrome. Therefore, the claimant is not required under the provisions of Act 796 of 1993 to establish that his work duties required rapid repetitive motion in order to establish the compensability of his carpal tunnel syndrome injury. See Kildow v.Baldwin Piano Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).
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In sum, the claimant must still prove that he sustained a carpal tunnel syndrome injury arising out of and in the course of employment, that a work-related injury is the major cause of his disability or need for medical treatment, and the compensable injury must be established by objective medical findings.
While the claimant did in fact have positive nerve conduction studies in December of 2006, these studies were normal by June 5, 2007. The most obvious explanation is that the respondent’s plant closed down in August of 2006. The claimant admitted that the last day he worked for the respondent employer was on August 4, 2006. Presently the claimant is taking classes at Northwest Arkansas Community College and doing foster care out of his home for Alcom. The claimant testified that in addition to his classes 6 hours a week, he provides foster care for a gentleman who stays with him 24 hours a day, 7 days a week. He also provides foster care to another gentleman for 34 hours a week. Clearly by June of 2007 the claimant did not have any measurable and objective findings of Carpal Tunnel Syndrome on either wrist.
When the nerve conduction studies performed by Dr. Kaplan were normal, he raised the possibility of
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cervical radiculopathy. Therefore an MRI was recommended and authorized by the respondents. As stated in his summary of August 15, 2007, the MRI reflected degenerative changes and disc bulges but no cord compression or definite radiculopathy. At this point in time the respondents recontroverted the claim.
The Administrative Law Judge made a finding of a compensable injury to the cervical spine apparently based on the findings of the MRI. However, there is no evidence of causation between the claimant’s employment and the cervical spine findings. There is absolutely no connection with the claimant’s employment with a straightening of the lordotic curve or osteophytes. In addition, when the claimant originally filed this claim there was no mention of a cervical spine problem. The suggestion of a cervical spine injury did not arise until Dr. Kaplan was trying to determine the origin of the claimant’s numbness in his hands, especially since the nerve conduction studies he performed were normal.
The Administrative Law Judge also made a determination that the claimant sustained an injury to his
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left shoulder. Nowhere in the medical records is there any findings of any type of left shoulder abnormality. In addition, the Administrative Law Judge made a determination that the claimant sustained injuries to both elbows. At no time has there been any testing or any suggestion of a right elbow injury.
Again, as to both wrists and the left elbow, there are contradictory nerve conduction studies. However, the latest ones performed by Dr. Kaplan after the claimant no longer worked for the respondent employer are normal and clearly reflect that the claimant does not have any current evidence of Carpal Tunnel Syndrome or left elbow neuropathy.
Finally, Dr. Benafield believed there were bilateral scapholunate ligament insufficiencies. In his report of December 4, 2006, Dr. Moore determined the claimant had old scapholunate ligament disruption with both wrists. At no time has the condition been linked to the injures of October 28, 2005. The only treatment since that date for the wrists has been Carpal Tunnel Syndrome which Dr. Kaplan ruled out.
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Additionally, the first notation of pain in the claimant’s left shoulder is noted on March 15, 2007. This pain is attributed to the claimant working on a keyboard. It should be noted that the claimant was going to school. He did not use a keyboard while working for the respondent employer. In fact, the claimant lost his job in August of 2006 when the respondent employer closed down their chrome plant. This is almost seven months after the claimant no longer worked for the respondent employer.
Furthermore, the findings on the cervical MRI performed on July 18, 2007, are degenerative findings and there is absolutely no evidence in the record that these findings were caused by the claimant’s employment for the respondent employer. The MRI reflected a small right sided osteophyte without effacement of the cord or significant stenosis at C3-4. There is a straightening of the spine between C4 and C6 but no effacement of the spinal cord. Clearly, these are degenerative problems totally unrelated to the claimant’s employment.
Therefore, after conducting a de novo review of the record, we find that the claimant has failed to prove by
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a preponderance of the evidence that he sustained compensable injuries to his wrists, left elbow, left shoulder and neck while working for the respondent employer. Accordingly, we hereby reverse the decision of the Administrative Law Judge.
IT IS SO ORDERED.
___________________________________ OLAN W. REEVES, Chairman
___________________________________ KAREN H. McKINNEY, Commissioner
Commissioner Hood dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion reversing an Administrative Law Judge’s award of benefits based upon a finding that the claimant sustained compensable gradual onset injuries to his wrists, elbows, left shoulder, and neck. After a de novo review of the record, I find that the majority’s decision is not only contrary to the evidence of record, but also contrary to the intent of the Arkansas Workers’ Compensation Act, and therefore, I must respectfully dissent.
The majority finds there are no objective and measurable findings supporting the existence of an injury. This finding is clearly wrong. The
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claimant first sought medical treatment regarding this claim from Dr. Garland Thorn on November 30, 2005. In the physician’s report of that visit, he prescribed the claimant Feldene, a commonly prescribed anti-inflammatory. As the Supreme Court of this State has held, prescriptions of medications designed to correct an objective finding is sufficient to meet the objective findings requirement. See Fred’s Inc.v. Jefferson, 361 Ark. 258, 206 S. W. 3d 238 (2005). Further, not only did Dr. Thorn continue to provide the claimant anti-inflammatory medication, actually swelling and edema was noted by the therapist providing the claimant his physical therapy in several reports beginning on May 1, 2006.
The most compelling objective finding is the nerve conduction study performed on the claimant on December 6, 2006, by Dr. Michael Morse. That study determined the claimant had bilateral carpal tunnel syndrome and a bilateral ulnar entrapment neuropathy across the cubital tunnel.
Unfortunately, the majority has chosen to ignore the above cited objective findings. Instead, they rely upon a subsequent nerve conduction study performed by Dr. Ryan Kaplan, a Fayetteville neurologist. According to
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Dr. Kaplan’s report dated June 5, 2007, the claimant did not have either carpal tunnel syndrome or cubital tunnel syndrome. But, Dr. Kaplan did discover a cervical radiculopathy. However, a subsequent cervical MRI exam conducted on July 18, 2007 did not identify a clear traumatic injury. Dr. Kaplan later suggested the abnormalities noted on the MRI could account for some of the claimant’s left-sided radicular symptoms.
Because of Dr. Kaplan’s findings, the majority has chosen to simply ignore the claimant’s prior objective findings and clinical testing symptoms and find that the claimant never had carpal tunnel syndrome or cubital tunnel syndrome, or any other verifiable hand, elbow, shoulder, or neck injury. In my opinion, this result is outrageous. It is undisputed the claimant had a highly hand-intensive job which was both rapid and repetitive. He consistently related to his treating physicians the symptoms of job-related carpal tunnel syndrome and ulnar nerve entrapment. Those symptoms included pain radiating through his forearm and hand, numbness of his fingers, inability to grasp objects, and loss of grip strength. He also consistently tested positive on clinical examinations involving Phalen’s tests and Tinel’s tests. In addition, while he
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was still performing his job duties with the respondent, he tested positive for bilateral carpal tunnel and cubital tunnel syndrome on nerve conduction studies.
Pursuant to the direction of the Arkansas Legislature, as codified in (11-9-117, this Commission promulgated Rule 099.37 which set out a process for diagnosing job-related carpal tunnel syndrome. That rule sets out in precise language how carpal tunnel syndrome can be diagnosed clinically and using objective electronic testing and how to distinguish between job-related carpal tunnel syndrome from carpal tunnel syndrome resulting from extrinsic causes. In applying the facts of this case to that rule, it appears that the claimant has satisfied every criteria for demonstrating job-related carpal tunnel syndrome and the closely related cubital tunnel syndrome. I cannot understand why the majority is unable to reach the obvious conclusion that this claimant sustained compensable cumulative trauma injuries to his hands and arms.
Regardless as to what Dr. Kaplan found, there can be no question that the claimant met his burden of establishing a compensable injury. Considering Dr. Kaplan’s later studies, I note Rule 37 specifically states nerve conduction studies “Are likely to be more sensitive if performed while the patient is still engaged in his usual occupation under normal working conditions.” In
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this case, by the time Dr. Kaplan performed his tests, the claimant had stopped performing his hand intensive work and was engaged in an occupation which did not require him to rapidly and repetitively use his hands and arms. Consequently, it is not surprising that some of the symptoms had temporarily abated. Nonetheless, this does not change the fact the claimant had compensable injuries and is entitled to benefits based upon those injuries.
The claimant’s years of employment with the respondent have rendered him unable to perform the type of strenuous activities he used to support himself and his family up until the early part of 2005. By finding this injury is not compensable, the majority is now limiting the claimant to the type of low-paying occupation he has now found and has denied him the medical treatment necessary to correct the hand and arm ailments he developed as a result of his job-related activities. I think it is highly significant that the Commission’s own rule specifically recognizes a temporary improvement in a cumulative trauma injury will be reflected in a nerve conduction study if a claimant enters a period of inactivity. I find, as a matter of law and fact, such a change does not obviate the past evidence both objective and clinical, of a job-related, cumulative trauma injury.
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Furthermore, it is my belief that the majority has, once again, despite repeated explanations from the Court of Appeals, confused the element of objective findings with the element of causation. The workers’ compensation statutes provide that “[a] compensable injury must be established by medical evidence supported by objective findings. . . .” Ark. Code Ann. 11-9-102(4)(D) (Supp. 2007). “Objective findings” are defined as “those findings which cannot come under the voluntary control of the patient.” Ark. Code Ann. § 11-9-102 (16)(A)(i) (Supp. 2007). A claimant must prove a causal connection between his employment and the injury. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). While objective medical evidence is necessary to establish the existence and extent of an injury, it is not essential to establish the causal relationship between the injury and the work-related accident.Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522, 524
(1999); Horticare Landscape Management v. McDonald, 80 Ark. App. 45, 89 S.W.3d 375 (2002).
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As set out above, the record is replete with objective evidence and clinical tests establishing the nature and extent of the claimant’s injuries. Even the nerve conduction study performed by Dr. Kaplan reflected objective evidence of a nerve entrapment. The only compensability issue which can exist in this case is whether a causal connection exists between the claimant’s job-related activities and the objective evidence of injury discovered by the claimant’s treating physicians and two separate nerve conduction studies. However, neither the majority nor the respondent discuss causation. I believe this is because there is no question that the claimant had the type of job which is known to cause the ailments he is currently suffering from. The claimant’s testimony recounts various job duties that were highly repetitive, involved extensive use of his hands and arms, and were, in general, rapidly performed. In short, the claimant’s testimony establishes his work involves the type of repetitive, hand intensive labor which is normally associated with carpal tunnel syndrome and other cumulative trauma injuries and meets the statutory requirement that cumulative trauma injuries (other than carpal tunnel syndrome) be caused by rapid, repetitive motion. See Ark. Code Ann. § 11-9-102
(4)(A)(ii)(a). Neither the respondent nor the majority contends otherwise. A
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review of Commission Rule 099.37, as well as a common sense appraisal of the evidence, cannot leave any doubt that the claimant sustained a job-related, cumulative trauma injury to his hands and arms, even extending into his shoulders and neck. In my view, the only real question is what medical treatment the claimant needs for this injury and the extent of his disability benefits. What this Commission should do is affirm the Administrative Law Judge’s decision so that the claimant can begin receiving appropriate medical treatment and all other benefits provided for under the Workers’ Compensation Act.
I find the facts in this case clearly and undeniably establish the claimant sustained compensable injuries. The purpose of the Workers’ Compensation Act is to provide workers, such as this claimant, appropriate and timely medical, disability and related benefits. The majority’s finding in this case is a blatant disregard of that purpose. For that reason, I must respectfully dissent from their Opinion.
______________________________ PHILIP A. HOOD, Commissioner
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