CLAIM NO. F005909
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 17, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JIM R. BURTON, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by the HONORABLE WILLIAM C. FRYE and HONORABLE TERRY D. LUCY, Attorneys at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the Administrative Law Judge on April 20, 2001. In that opinion, the sole issue addressed was compensability. The Administrative Law Judge found that the claimant proved by a preponderance of the credible evidence that he had sustained a gradual onset carpal tunnel syndrome to his left hand as a result of repetitive work activities, that the injury arose out of and during the course of his employment with the respondent, and that this was confirmed by medical evidence supported by objective findings. The Administrative Law Judge specifically found that the claimant established a causal connection between his carpal tunnel injury and his employment with medical opinions which were stated within a reasonable degree of medical certainty. The respondents have appealed this decision and state that the finding that the claimant established that he sustained a gradual onset injury to his left hand as a result of repetitive work activities with the respondent was not supported by a preponderance of the evidence and is in error. After conducting a de novo review of the entire record, we affirm the decision of the Administrative Law Judge.
FACTUAL HISTORY
The claimant is 47 years old and has worked for the respondent for 5 years. He has worked primarily as a mechanic his whole life. He testified that in the course of his employment as a mechanic for the respondent the tools he uses most often are the sander, the air drill, and hand tools, including hammers, wrenches, and ratchets. He stated that the majority of his time at work is spent manipulating some kind of hand tools. The claimant testified that his current job with the respondent is different from the general mechanic work he had been doing for the previous 30 years because he is using the air tools and the valve clamps a lot more. He stated that he did not use those tools in regular mechanic work. He agreed that the particular work that he is doing for the respondent for the past several years can be described as hand intensive, “more hand-intensive than general mechanic work.” The claimant testified that he had not missed any work since late 1999 up through the date of the hearing, except for a week’s vacation.
The claimant’s primary job is to rebuild engine cylinder heads. He testified that these cylinder heads weigh from 20 to 300 pounds, with the larger ones being lifted using an electric hoist. To rebuild a cylinder head, one must first compress the springs which hold the valve in the head and then remove the valves. The claimant uses an instrument to push the springs which requires him to apply hand pressure. The head is then soaked in cleaning chemicals overnight, and in the morning the claimant removes it from the vat, dries it off, and uses an air drill with wire brushes on it to clean the valve holes. He then uses an air sander and sands the surface where the valves will be replaced. This is an instrument that the claimant has to hold with both hands. After the valve holes are cleaned, the claimant then determines if the guides in those holes are good. If they are not good he takes a 2 lb. ball-peen hammer and drives out the old guide and installs a new one. He then uses an air-powered grinder to grind the seats where the valves will sit. This is also a two-handed job in which he holds the machine trigger with one hand and applies pressure with the other. The next step is to place the head into a resurfacing machine. The claimant then grinds the valves, which will be inserted into the reconditioned head. For this he uses a valve-grinding machine which is also a machine that requires both of his hands to use. Overall, the claimant testified that he averaged 9 hours per day working and that he used some kind of hand tool all day long.
The claimant testified that he first started noticing symptoms in his hands in September 1999, but that it was not until the first part of 2000 that he mentioned it to a doctor. He thought at first that it was arthritis. The claimant testified that his hands started aching, hurting, and going numb, and that he could not grip as tight as he used to. His fingers would begin tingling and hurting and it would wake him up at night. The claimant testified that he had been doing mechanic-type work for about 35 years and that he had never had any problems with his wrists, but conceded that he has had episodes of numbness of the arm, weakness, inability to do things, and dropping things.
The claimant testified that although he is right-handed, his left hand bothers him more. He said that it goes to sleep on him more at night, that he does not have a good grip in that hand, and that it just hurts more than his right hand. The claimant testified that about 70 percent of the time he uses his right hand at work at 30 percent of the time he uses his left hand. He stated that the symptoms in his hands are worse when he is not using his hands.
The claimant had a previous workers’ compensation claim in 1992. He was working as a labor foreman and during the course of a construction job he sustained an injury when a piece of rebar broke free and slapped him across the palm of his right hand, breaking a bone in the back of that hand. The claimant testified that his hand was in a cast after this injury, that he underwent a course of physical therapy for two to three months, and that he was given a seven percent disability rating. A report dated August 20, 1992, by Dr. John T. Woloszyn, regarding the rebar accident injury, makes the following remarks:
Mr. Kelley was seen by myself back on May 4, 1992, after he got his right hand and thumb slapped by a piece of rebar wire attached to a concrete slab. . . . Mr. Kelley states that he has had pain ever since. . . . He is complaining of wrist pain, drops a lot of things, complains of some occasional index and thumb numbness.
The claimant testified that he has never had any injury to his left hand. The claimant is diabetic and has had this condition for seven years. He treats it by taking two insulin shots a day. He testified that he has not had any neuropathies in his hands or his feet from his diabetes. The claimant also has high blood pressure and controls this condition by medication. The claimant had a heart attack in January 1998 which caused him to be off of work for three or four months, and then on light duty for most of 1998. The prescription medications which the claimant takes include Zestoretic, for high blood pressure, Glucophage, Amaryl, Zocor, and one aspirin per day.
The claimant’s primary treating physician for his current problems is Dr. Glenn Dickson. At the time of the hearing, the claimant’s treatment had consisted of taking the prescription drug, Celebrex, and wearing velcro hand braces at work. He had been on the anti-arthritis medication, Celebrex, for about six months. The claimant testified that it was his understanding that Dr. Dickson was now recommending that he have surgery in his left hand.
The claimant rides a motorcycle as a hobby. He works on his motorcycle at home and uses the same kind of hand tools that he uses at work. He testified that he sometimes takes a two or three hour ride on weekends, during which he will ride for 45 minutes to an hour and take a break. He testified that he does not do weekly motorcycle maintenance because his motorcycle is in good shape.
The medical records include chart notes on the claimant from the Jonesboro Church Health Center. The claimant was seen regularly at this clinic, every month or so, for check-ups in connection with his diabetes and blood pressure problems. A note from September 1, 1999, makes no reference to any hand or arm pain. A note dated October 26, 1999, remarks, “Normal state of health except for sinus drainage . . . Also c/o of gastric pain” and no mention is made of any hand or arm pain. The claimant returned to the clinic again on November 2, 1999, and again the note from this visit makes no mention of any arm or hand pain. An office note of January 6, 2000, makes no remark of the upper extremities. An office note of January 31, 2000, reflects that the claimant’s extremities were examined and were normal. The last record from the Jonesboro Church Health Center is February 22, 2000, which again makes no mention of arm or hand pain. The claimant testified that he did tell one of the nurse practitioners at the Health Center that he was having arthritis trouble, but he did not see her write anything down in his records regarding this complaint. He stated that he did not recall which visit this was.
Dr. Dickson’s chart note regarding the claimant, dated May 17, 2000, includes the following comments:
The patient is a 47 y/o white male who has had pain in both hands. He has had numbness and some weakness. The pain is worse at night. The middle finger on his hands is worse, the left hand is worse than the right.
Examination reveals decreased sensation over the thumb, index and long fingers and to some extent the radial side of the ring finger on the volar aspect.
Dr. Dickson’s diagnosis was carpal tunnel syndrome. He scheduled the claimant for NCV testing on May 31, 2000, the results of which were:
Severe carpal tunnel syndrome of the left upper extremity . . . Mild carpal tunnel syndrome of the right upper extremity.
A letter from Dr. Dickson dated June 14, 2000, makes the following remarks:
After reviewing the work duties that Mr. Kelley engages in on his job, I do feel that these things are consistent with the type of injury that will lead to carpal tunnel syndrome and would therefore feel that his carpal tunnel syndrome is work related.
Dr. Dickson gave a deposition in this matter which was admitted as an exhibit. During that deposition, Dr. Dickson testified that he had only seen the claimant one time, and at that visit his examination of the claimant revealed that the sensation in the claimant’s fingers was diminished in the thumb, index and long fingers and also on the right of his ring finger in both hands. Dr. Dickson indicated that the claimant told him that he worked in a machine shop and did general machine work, including using drills, sanders, hammers, and various things which the doctor viewed as repetitive motion-type jobs. Dr. Dickson testified that the claimant did not give him any history of any hand problems or numbness before this present episode. The following exchange took place:
Q. And did you take a history as to whether or not he is right hand or left hand dominant?
A. I do not have that.
Q. Okay. Is that of any significance in determining what may be causing his problem as far as carpal tunnel?
A. It at times is, but more often than not, it can be in the non-dominant hand. Oftentimes, they’re holding and doing things with the non-dominant hand while the other hand is using a hammer or whatever, and, so, oftentimes, they will get it in the non-dominant hand as well.
Dr. Dickson stated that the claimant’s EMG/nerve conduction study showed that the claimant had bilateral carpal tunnel syndrome, with his left hand being much worse than his right. He stated that the degree of impairment which the claimant had on his left hand brought him to the conclusion that surgery would be necessary. The doctor was asked:
Q. Okay. What are some of the other causes that you see of carpal tunnel?
A. People that have hobbies that would required repetitive motion type activities. People that have homebound activities that are similar to the things we see at work.
Q. Okay. What about inflammatory problems such as diabetes, those kinds of things?
A. . . . Diabetics do have an increased incidence. Patients with previous trauma, fractures, rheumatoid arthritis, anything that causes increased swelling in the area of the wrist. . . .
Q. As far as diabetes, how does it interplay with carpal tunnel?
A. Diabetics tend to get peripheral neuropathy; that is, they tend to get nerve problems in general in their nerves in their extremities, more often in the feet than in the hands. And those are usually a little different than we typically see with work related or with inflammatory causes of arthritis.
Q. Okay. Can you tell when you do these EMG/nerve conduction studies whether or not the carpal tunnel or the median nerve problems are actually from diabetes, from work, or what they’re related to?
A. Usually not. . . .
Q. All right. So, you can’t — is it a fair statement to say you can’t tell from the EMG/nerve conduction study whether or not his carpal tunnel was related to work as opposed to his diabetes or other problems?
A. I would tend to relate it more to a traumatic or a swelling type simply because the ulnar nerve was completely normal.
The claimant’s 1992 rebar injury was then discussed, specifically that he had suffered a scaphoid fracture as a result of this injury. Dr. Dickson was asked:
Q. If you have that type of trauma, can you develop symptoms compatible with carpal tunnel?
A. It would not be uncommon after a scaphoid fracture to have carpal tunnel develop, although I would have expected it to be more severe and would have expected it to have occurred sooner.
Q. Okay. Well, if he was complaining back when he had this fracture of wrist pain, numbness of the index and thumb finger — thumb and is dropping a lot of things, those are symptoms, are they not, compatible with carpal tunnel?
A. Yes. They are.
Q. And you didn’t have any of that in your history?
A. No.
Q. . . . Did you have any history that he’s had episodes of numbness in his left arm and left leg?
A. I did not.
Q. Is that something that could be compatible with a diabetic neuropathy?
A. It could be, yes.
The deposition moved on to a discussion of the claimant’s work duties. The following discussion transpired:
Q. What about the drill that he’s describing here makes you think in Mr. Kelley’s case is causing carpal tunnel?
A. Well, just drills in general, there is some vibration when you’re applying that, and that type of activity will cause some inflammation or swelling in the carpal tunnel.
— — —
Q. If he’s indicated to me that 70 percent of the time he’s using his right hand and only 30 percent of the left, that’s not going to be significant one way or the other, is it?
A. Probably not, because when he’s saying 70 percent with the right, you don’t know for sure what he’s doing with the left at that time. Someone that’s got the hammer in their right hand may think that’s all they’re using when in fact they may be using that left more than they think,. . . .
— — —
Q. In Mr. Kelley’s case, he’s indicated to me that he has done this type of work for I think the last 35 some odd years. In fact, I think he told me that — yes, he did — in his deposition he had done this work for 35 years. Would you expect someone that’s been doing this same type of activities for 35 years to all of a sudden develop carpal tunnel 35 years later?
A. Ordinarily not. Again, it would depend on whether there had been any intervening bumps or injuries that would have precipitated it.
Q. Okay. Well, if he had had an injury to his hand say in 19 — his left hand in 1998, where he bumped it on a door, could that cause him to start developing carpal tunnel?
A. I would think it would take more than a bump on a door. I would think it would take more of a slap across the wrist with an instrument of some sort.
Q. Sort of like that rebar that I described that he had in 1992?
A. Something like that would be more likely to cause it, yes.
— — —
Q. And if we took — if he wasn’t diabetic, would it be fair to say you could clearly point towards probably his work is clearly causing his carpal tunnel?
A. Yes, I would not know of any other thing that would be contributing to it.
Q. But since we have the diabetes here, and we have a man that’s worked in this work — this type of job for 35 years, and, in fact, it is his non-dominant hand that he only uses about 30 percent of the time, does that call into question whether or not his work is actually what is the major cause of this man’s problem?
A. I would not discount the work. I think the work would still be a substantial aggravating possibility in him.
In Dr. Dickson’s discussion of the claimant’s EMG/NCV test results, he stated that the ulnar nerve readings were all within normal limits and that he would have expected to have seen this reading to be more abnormal if the claimant was suffering from diabetic polyneuropathy. Dr. Dickson’s quote from his June 14, 2000, report regarding the work-relatedness of the claimant’s carpal tunnel syndrome was discussed and the doctor remarked that the claimant’s diabetes and scaphoid fracture were not conditions that would cause him to change his opinion as stated in that report, and he stated that the report opinion was within a reasonable degree of medical certainty.
Based upon the foregoing, the Administrative Law Judge found that the claimant proved by a preponderance of the credible evidence that he sustained a gradual onset carpal tunnel syndrome to his left hand as a result of repetitive work activities, and that this injury arose out of and during the course of his employment with the respondent. He stated that this was confirmed by medical evidence supported by objective findings. He further found that the claimant established a causal connection between his carpal tunnel injury and his employment with medical opinions stated within a reasonable degree of medical certainty. He found that the respondents were responsible for all medical and related treatment as a result of this compensable injury including, but not limited to, the proposed surgical release of the claimant’s left carpal tunnel. The respondents have appealed from this opinion.
ADJUDICATION
The claimant’s injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Ark. Code Ann. § 11-9-102 as 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. ConAgra Frozen Foods, F.C. Opinion filed Feb. 2, 1995 (E317744). Since the claimant asserts that he sustained a work-related gradual onset of carpal tunnel syndrome, 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. Kildow v. BaldwinPiano Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). In order to prevail on a carpal tunnel syndrome claim a claimant must prove by a preponderance of the evidence that:
(1) He sustained an injury causing internal or external harm to the body which arose out of and in the course of his employment and which required medical services or resulted in disability or death. Ark. Code Ann. § 11-9-102(4)(A)(ii) and § 11-9-102(4)(E)(ii) (Supp. 2001);
(2) That the injury was the major cause of the disability or need for treatment. Ark. Code Ann. § 11-9-102(4)(A)(ii)(a) and § 11-9-102(4)(E)(ii) (Supp. 2001);
(3) The compensable injury must be established “by medical evidence supported by “objective findings” as defined in subsection (16) of this section.” Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2001).
(4) The medical opinion addressing compensability must be stated within a reasonable degree of medical certainty. Ark. Code Ann. § 11-9-102(16)(B) (Supp. 2001).
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. While it is not essential to establish a causal relationship between the injury and a work-related accident by medical proof in every case, there are cases where medical evidence is necessary to establish that a particular injury resulted from a work-related incident or accident. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). In the recent Supreme Court opinion in the case of Freeman v. Con-Agra Frozen Foods, 344 Ark. ___, ___ S.W.3d ___ (2001), the Supreme Court reiterated that medical evidence establishing a causal connection is not required in all cases, but remarked that if medical opinions were offered, they must do more than state the causal relationship between the work and the injury as merely a possibility. Stating that the medical opinion must be more than speculation, the Court opined, “If the doctor renders an opinion about causation with language that goes beyond possibilities and establishes that the work was the reasonable cause of the injury, this should pass muster.”
The dissenting Commissioner argues that Dr. Dickson’s opinion on causation is not stated within a reasonable degree of medical certainty. We disagree. We find that Dr. Dickson’s opinion is stated with sufficient certainty to satisfy Freeman. He testified that he was aware of the claimant’s job duties. Dr. Dickson discounted other causative factors, pointing to the temporal gap between the claimant’s fracture and the development of carpal tunnel syndrome. Moreover, the fracture in the claimant’s right hand does not explain the existence or severity of his left carpal tunnel syndrome. Also, Dr. Dickson was not persuaded that the claimant’s diabetic condition was the cause of his carpal tunnel syndrome. He explained that he would not expect normal ulnar nerve readings in the case of diabetic polyneuropathy. Although the claimant’s hobbies include riding a motorcycle, he testified credibly that he did not do so with the regularity necessary to cause carpal tunnel syndrome.
To the extent that the dissenting opinion bases its argument on Dr. Dickson’s use of the term “consistent with” in rendering an opinion, we respectfully point out that Dr. Charles Jones rendered an opinion using the term “consistent with” in the Freeman case, and clearly Dr. Jones’ use of the term “consistent with” did not prevent the Arkansas Supreme Court in Freeman from reversing this Commission and finding that Dr. Jones’ opinion was stated within a reasonable degree of medical certainty. It certainly appears that Dr. Dickson’s explanations for his opinion in the present case, taken in their entirety, are stated with significantly greater depth and conviction than was Dr. Jones’ opinion at issue in Freeman.
The dissenting Commissioner also accords no weight to Dr. Dickson’s opinion based on the fact that (1) Dr. Dickson only examined the claimant one time, (2) Dr. Dickson received an incomplete history during that visit, (3) the claimant has diabetes and hobbies that “further call into question Dr. Dickson’s lukewarm opinion in this matter,” and (4) the claimant is right hand dominant but is having worse symptoms in his left hand.
On these points, we respectfully point out that Dr. Dickson has stated the rationale for his opinion. The respondents at deposition had an opportunity to bring all relevant history to bear, and Dr. Dickson didnot change his expert opinion on causation. The respondents did not put any expert medical opinion in the record to rebut Dr. Dickson’s medical opinion, and we are at a loss to understand the dissent’s criticism of Dr. Dickson’s opinion simply because Dr. Dickson only examined the claimant one time. We point out that it is the respondents, not the claimant, who are denying the claimant access to medical treatment. The dissenting opinion fails to suggest what physician, rather than Dr. Dickson, might be in a better position to render a credible medical opinion under these circumstances, and we are not aware of any alternative physician whose opinion might have been entitled to greater weight, had either party sought a second opinion.
Like the Administrative Law Judge, we accord great weight to Dr. Dickson’s highly credible opinion and explanations in this case. Because we accord great weight to Dr. Dickson’s opinion on causation in this case, and since the respondents have not effectively rebutted that evidence by expert medical opinion or otherwise, we find that the claimant has established by a preponderance of the evidence that his extremely hand-intensive work duties caused the claimant’s carpal tunnel syndrome injury. The claimant’s carpal tunnel syndrome is the major cause, and in fact the sole cause, of the claimant’s need for medical treatment, and the carpal tunnel syndrome has been established by objective nerve conduction studies.
Consequently, the respondents are directed to comply with the Administrative Law Judge’s award of benefits.
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).
For prevailing on this appeal before the Full Commission, the claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715
(Repl. 1996).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.
DISSENTING OPINION
MIKE WILSON, Commissioner
I respectfully dissent from the majority opinion, as I would find that the claimant failed to prove that he sustained a compensable gradual onset injury. The connection between the claimant’s employment and his medical condition is not obvious enough in a common sense way to permit the claimant to meet his burden of proof without a doctor’s opinion; and I find that the remarks in Dr. Dickson’s report and deposition do no meet the standard set by the Arkansas Supreme Court in Freeman v. Con-AgraFrozen Foods, 344 Ark. ___, ___ S.W.3d ___ (2001). Dr. Dickson’s opinion that the claimant’s injuries are “consistent with” his employment does not meet the “requisite definiteness to prove a causal connection between the injury and the work.”
Dr. Dickson only examined the claimant one time, and as he conceded in his deposition, he received an incomplete history of the claimant’s health during that visit. At the time that he wrote his report, Dr. Dickson was unaware of the claimant’s 1998 rebar accident, the fact that the claimant is right-hand dominant, and the claimant’s history of numbness and dropping things. Dr. Dickson indicated that he would ordinarily not expect someone to have a sudden onset of carpal tunnel syndrome after performing the same type of work for 35 years, unless there was some type of intervening injury. In deposition, Dr. Dickson remarked that he thought that the claimant’s “work would still be a substantial aggravating possibility in him,” and that the claimant’s work was “something that can cause carpal tunnel . . . a substantial factor.” Such remarks do not support a finding that the claimant’s injury is work-related. And even that if it is deemed work-related, these remarks raise the issue of whether the claimant’s work is the major cause of his need for treatment. The claimant’s history of diabetes and his hobby of motorcycle riding are issues that further call into question Dr. Dickson’s lukewarm opinion in this matter.
Outside of Dr. Dickson’s opinion, other evidence in the record does not support a causal connection between the claimant’s employment and his carpal tunnel syndrome. The claimant gave a 70-30 apportionment of work between his dominant right hand and his non-dominant left hand, yet his left hand is the more seriously afflicted. Also, the claimant testified that he began experiencing carpal tunnel syndrome as early as September 1999, however the reports from the claimant’s six visits to the Health Center subsequent to that date fail to reflect that he was having any problems with his hands.
For the foregoing reasons, I would find that the claimant failed to meet his burden of proof that he sustained a compensable bilateral carpal tunnel injury to his hands, and would reverse the decision of the Administrative Law Judge in this regard. Therefore, I respectfully dissent from the majority opinion.
_______________________________ MIKE WILSON, Commissioner