JORDAN v. PRESCOLITE, 1998 AWCC 277

CLAIM NO. E704101

RAYMOND JORDAN JR., EMPLOYEE, CLAIMANT v. PRESCOLITE, EMPLOYER, RESPONDENT and CONSTITUTION STATE SERVICES, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 17, 1998

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

Claimant represented by the HONORABLE DENVER L. THORNTON, Attorney at Law, El Dorado, Arkansas.

Respondents represented by the HONORABLE ROBERT H. MONTGOMERY, Attorney at Law, Little Rock, Arkansas.

[1] OPINION AND ORDER
[2] The respondents appeal an administrative law judge’s opinion filed December 1, 1997. The administrative law judge found that the claimant proved that he sustained a gradual carpal tunnel injury resulting in temporary total disability commencing January 8, 1997; that the claimant is entitled to temporary total disability benefits commencing January 8, 1997, and continuing until it is shown that his healing period has ended; and that the respondents shall pay reasonable and related medical benefits. We have reviewed the entire record de novo. We find that the claimant sustained an overuse injury which resolved by January 21, 1997, and that the respondents are liable for all reasonable and related medical treatment until that date. We further find that the claimant has failed to establish entitlement to temporary total disability benefits. [3] The claimant, age 44, began work for respondent-employer in August, 1996. For the previous 22 years, the claimant worked for ArkLa Gas Pipeline Department and NorAm Gas Transmission. As part of his previous employment, the claimant attended welding school, corrosion school, and electrician school. The claimant, who is right handed, testified that he never before experienced difficulty with his hands or wrists, and the record does not indicate that the claimant’s previous work duties involved intensive hand motions. The claimant was laid off for six months before beginning employment with the respondents. Beginning in August, 1996, claimant testified, he was “breaking off parts off an assembly line.” The claimant worked at three different stations. The claimant said these aluminum parts would come out of a large moldcast machine, and the claimant would break off the parts and throw them into a basket. The parts were of varying sizes. The claimant estimated that he worked from “fast to medium.” The claimant testified that he processed 400-500 pieces per hour in this manner. The claimant’s supervisor testified that this was not assembly line work, although an employee had a “reasonably expected” output. The supervisor testified that the claimant was a good worker and produced at near total capacity. [4] Once the parts were broken off and placed in the basket, the claimant testified, he would take the basket and a dolly to the machine. The claimant then polished the parts with a buffing wheel, or “edger.” The claimant said this operation was “fast work,” with a quota of 400-500 parts per hour, “but I could never get that.” After the parts were polished, they were placed on the floor or in a basket to be picked up by a forklift. The claimant said he was sometimes required to polish parts in this manner for an entire day. Or sometimes, the claimant’s job required manually filing the parts with a hand file. The claimant said that he started feeling pain about six weeks into the job. The claimant knew that company policy required reporting all injuries, no matter how small; however, the claimant thought he was merely suffering from the early stages of arthritis. [5] The claimant presented on his own to Dr. Douglas Owens on December 10, 1996. The claimant complained of pain, swelling, and numbness in his wrists and hands. Dr. Owens reported that neurovascular exam of the arms was normal, and he prescribed medication. Dr. Owens also provided a Return to Work note, dated December 10, 1996. The note read:

Wrist pain — finger numbness following 3 days of using the edger since 12-10-96 and is able to return to work on Thursday 12/12/96. There seems to be a clear cut association between the edger and his hand symptoms. He should avoid this if at all possible.

[6] The claimant’s supervisor testified that the claimant was taken out of edging and placed back into “break off and trim.” The supervisor stated that the claimant met 96 to 99 percent of his quota, and the claimant never complained to him of problems with his hands. [7] An orthopaedic surgeon, Dr. D’Orsay Bryant, saw the claimant on January 7, 1997. Dr. Bryant found swelling of the left hand generally, mild swelling of the right hand. Dr. Bryant’s impression was 1) bilateral hand overuse injury; 2) possible neuropathy of the upper extremities. Dr. Bryant prescribed bilateral hand orthotics, medication, and exercise. [8] The record contains claimant’s Resignation of Employment with respondent employer, effective January 8, 1997. The resignation indicates that the claimant was called back to his previous job. The claimant testified that, as part of returning to his previous employment, he was asked to pick up a desk as part of a physical examination, but he said his hands and wrists were hurting too badly. The claimant has not worked since, and he has not attempted to return to the respondent-employer. On January 21, 1997, Dr. Bryant reported:

The patient is doing a lot better regarding his hand. He worked for 21 years at Noram prior to work at Prescolite. He stated that they didn’t even want him to come back to the doctor because of his time lost from work and even stated that he had to miss time off going to a funeral. Because of lack of understanding and the work he was doing, he quit the job. He is also a pastor.
PHYSICAL EXAMINATION: His hands have significantly improved. He has been greatly helped by the braces.
He has increased flexion of the right hand to almost full flexion as well as on the left. He is doing quite well with the medications and the braces. He will continue them on his own. I am quite pleased with that.

[9] On February 18, 1997, Dr. Bryant wrote the Arkansas Appeal Tribunal concerning denial of unemployment benefits for the claimant:

I have followed this patient’s medical condition closely, and he presented to me with severe bilateral hand swelling and pain due to the strenuous nature of his job at Prescolite Mold Cast. This repetitive motion job, to which he was unaccustomed, caused severe disuse of his hands, and there was absolutely no question whatsoever that this condition prevented him from performing his duties at work. Indeed, I applied braces to his hands, and it was absolutely mandatory that he rest his hands in order for his pain and swelling to improve. The patient still cannot use his hands and is currently under medication and bracing by me to restore his hand function. Since he is under doctor’s orders not to use his hands in a repetitive and strenuous fashion and is currently unable to work, I would ask that you please give this kind gentleman the benefits that he deserves. He is trustworthy, honest, dependable, and is a man with an outstanding character. He is simply unable to perform work at this time due to the disability and poor condition of his hands.

[10] The claimant underwent Nerve Conduction/EMG testing on June 16, 1997. Dr. Shailesh Vora opined that these objective studies could support the following diagnosis:

1) Bilateral median motor sensory distal neuropathy/bilateral carpal tunnel syndrome if there is clinical correlation for it.

2) Bilateral ulnar motor sensory mild neuropathy.

3) Bilateral median motor F wave response absent and any proximal lesion of the median nerve should also be considered in the differential diagnosis.

[11] The claimant testified at the September, 1997 hearing that he had tried to work for different employers but was simply unable because of his hands. The claimant had not worked as of the time of the hearing. The administrative law judge concluded that the claimant satisfied all the statutory requirements necessary to establish the compensability of bilateral carpal tunnel syndrome. The respondents appeal; we reverse. [12] The claimant contends that he sustained a work-related gradual onset of carpal tunnel syndrome. Therefore, the claimant is not required, pursuant to Act 796 of 1993, to establish that his work duties required rapid repetitive motion in order to establish compensability of his alleged carpal tunnel syndrome injury. Kildow v. Baldwin Piano Organ, 333 Ark. ___, ___ S.W.2d ___ (1998). However, he must still satisfy the following requirements of Ark. Code Ann. § 11-9-102 (Repl. 1997):

(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) (Repl. 1997); Ark. Code Ann. § 11-9-102(5)(E)(ii) (Repl. 1997); see also, Ark. Code Ann. § 11-9-401(a)

(1) (Repl. 1997);

(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) (Repl. 1997);
(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) (Repl. 1997);
(4) 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) (Repl. 1997).

[13] If the claimant fails to establish, by a preponderance of the evidence, any of these requirements, he fails to establish compensability of the claim. We must then deny compensation.Jerry D. Reed v. Con Agra Frozen Foods, Full Workers’ Compensation Commission, opinion filed Feb. 2, 1995 (E317744). [14] We find that the claimant sustained a compensable injury viz., “overuse syndrome,” which resolved by January 21, 1997. The claimant presented credible, unrebutted testimony that he manually processed 400-500 aluminum parts per hour. This computes to 3200-4000 parts per day. After approximately five months of this hand activity, on January 7, 1997, Dr. Bryant found swelling of the left hand generally and mild swelling of the right hand. Dr. Bryant’s impression was bilateral hand overuse injury or possible neuropathy of the upper extremities. Dr. Bryant treated the claimant conservatively. The claimant credibly testified that he had never before experienced problems with his hands. We consequently find that the claimant sustained a work-related overuse injury, supported by objective findings, which was the major cause of his need for treatment. We note that the administrative law judge found that the claimant sustained a gradual carpal tunnel injury. However, we also note that possible
carpal tunnel syndrome was not diagnosed until June, 1997, five months after the claimant stopped working for respondents. We find that the claimant failed to prove that he incurred carpal tunnel syndrome arising out of and in the course of his employment with the respondent-employer. [15] The preponderance of the evidence shows that the claimant’s overuse condition had resolved by January 21, 1997, when Dr. Bryant reported that the claimant “is doing a lot better regarding his hand.” In so finding, we recognize that Dr. Bryant declared in February, 1997 correspondence that the claimant was still unable to work. However, this correspondence appears to be advocacy to secure unemployment compensation for the claimant. Dr. Bryant suddenly concluded that the claimant had presented to him with “severe bilateral hand swelling and pain.” This conclusion differs from Dr. Bryant’s initial examination in January, 1997, when he simply found general swelling of the left hand and mild swelling of the right hand, which had “significantly improved” as of January 21, 1997. This Commission is authorized to accept or reject medical opinion and is authorized to determine its medical soundness and probative force. McClain v. Texaco,Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). We minimize the probative force of Dr. Bryant’s February, 1997 findings. [16] Temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation (TTD) during the period of time that he is within his healing period and totally incapacitated to earn wages.Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Ark. Code Ann. § 11-9-102(13) defines “healing period” as the period necessary for the healing of an injury resulting from an accident. The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable, and when nothing further will improve that condition, the healing period has ended. The claimant is no longer entitled to receive temporary total disability compensation, regardless of his physical capabilities. Moreover, persistent pain does not suffice, in itself, to extend the healing period or to find that the claimant is totally incapacitated from earning wages. MadButcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). [17] In the within matter, the administrative law judge granted TTD benefits commencing January 8, 1997, and continuing until it is shown that claimant’s healing period has ended. The evidence does not support such a finding, and we reverse. Dr. Bryant diagnosed hand overuse and possible neuropathy on January 7, 1997. The claimant resigned to return to his former employment on January 8, 1997. This resignation was not due to upper extremity problems. The claimant said that he subsequently was unable to lift a desk for his previous employer, so he was not hired. We respectfully find the claimant to be less than credible in his uncorroborated account of a “lift this desk” pre-employment physical. On February 18, 1997, Dr. Bryant stated that the claimant was unable to return to work. The diagnosis of possible carpal tunnel came in June, 1997, and the claimant testified to disabling problems with his hands. With regard to the within respondent-employer, the claimant simply failed to prove that he was ever within his healing period and totally incapacitated to earn wages. [18] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant sustained a compensable overuse injury which resolved by January 21, 1997, and that the respondents are liable for reasonable and related medical benefits up to and until that date. We reverse the administrative law judge’s finding that the claimant proved a compensable carpal tunnel injury resulting in entitlement to temporary total disability benefits commencing January 8, 1997. We respectfully deny and dismiss this claim. [19] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[20] Commissioner Humphrey dissents.