NOLLEY v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT, 1999 AWCC 127

CLAIM NO. E608292

MERRY D. NOLLEY, EMPLOYEE, CLAIMANT v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT, EMPLOYER, RESPONDENT and SEDGWICK JAMES OF ARKANSAS, TPA/CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 26, 1999

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

Claimant represented by JAMES F. SWINDOLL, Attorney at Law, Little Rock, Arkansas.

Respondents represented by THOMAS W. MICKEL, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The respondent appeals a decision of the Administrative Law Judge filed on May 7, 1998, finding that claimant sustained a specific incident injury on April 10, 1996. The Administrative Law Judge awarded medical benefits associated with the treatment of claimant’s compensable injury. Based on our denovo review of the entire record, we find that claimant has proven that she sustained a specific incident injury, and that she is entitled to medical benefits. Therefore, we affirm the Administrative Law Judge’s decision. [3] For four years, claimant has worked as a special education teacher for respondent-employer. In that capacity, claimant is responsible for instructing physically and mentally challenged students. Claimant explained that some of her students have multiple disabilities. Moreover, she stated that she teaches both verbal and nonverbal students. Some of her students are not ambulatory. Summarizing the special duties required of teachers in her field claimant stated that: “[W]e change clothes, we change diapers, we clean noses, we feed, just normal things that you would do for very young children.” [4] Claimant testified that she sustained an injury to her left elbow on April 10, 1996. She explained the manner in which the injury occurred as follows:

. . . I had a student at that time with autism and was non-verbal, could not communicate, didn’t have any form of communication. Many times he would become upset or agitated and most of the time we would not know why he was upset. And as he became upset he could not communicate with us and we could not understand him. He would get very aggressive. And he would clear my desk and he would be knocking things over in the room. He’d be throwing desks, he’d be throwing chairs. And then he would grab — he grabbed me on that day and just drug me all over the room. Just threw me up against the wall.

* * *

. . . My left arm, yes, he got me by my left arm and pretty much slung me all over the room.

[5] Claimant testified that at the time of the injury, she weighed about 115 pounds. In contrast, the student in question weighed approximately 200 pounds. Claimant testified that the student with whom the altercation took place is strong and “. . . very dangerous when he’s aggressive.” [6] It is claimant’s testimony that she immediately reported the incident. AWCC Form AR-N completed by claimant was introduced at the hearing. This document reflects that claimant sustained an injury to her “left arm (elbow).” Claimant stated that she injured her left arm and hand on October 24, 1994. However, it is claimant’s testimony that there was no elbow involvement. [7] Claimant testified that she obtained medical treatment on the date of the injury. She stated that respondent employer selected Crestview Family Clinic as the medical provider. After two visits to the clinic, claimant sought treatment from Dr. Michael Weber. [8] According to Dr. Weber’s chart note dated June 13, 1996, he suspected lateral epicondylitis. He recommended a cortisone injection. Two weeks later, claimant was reinjected. [9] Claimant returned to Dr. Weber’s office on December 12, 1996. On that date, he observed “. . . an area of thickening or almost a lumpy sensation in the extensor musculature, one or two inches from her epicondyle.” Dr. Weber prescribed an injection, physical therapy, an elbow strap during the day and a nocturnal wrist splint. Apparently, this treatment was beneficial. According to a chart note dated December 30, 1996, Dr. Weber opined that claimant’s epicondylitis was resolving. However, on January 20, 1997, he noted the recurrence of claimant’s symptoms. Based on claimant’s complaints, Dr. Weber ordered another injection. [10] Dr. Weber ultimately determined that surgical intervention was necessary. According to an operative report dated June 30, 1997, he performed a “lateral epicondyle debridement, left elbow.” Dr. Weber diagnosed claimant with “chronic recurrent lateral epicondylitis, left elbow.” Granulation tissue was discovered during surgery, and this was removed. [11] Following surgery, claimant complained of pain and left arm weakness. Based on these symptoms, Dr. Weber referred claimant to Dr. Julie McCoy for a neurological evaluation. Claimant’s EMG/NC studies determined that there was no nerve entrapment. [12] Since claimant in the present claim alleges that she sustained an injury as a result of a specific incident which is identifiable by time and place of occurrence, the requirements of Ark. Code Ann. § 11-9-102 (5) (A) (i) (Supp. 1997) are controlling, and the following elements must be satisfied:

(1) proof by a preponderance of the evidence of an injury arising out of and in the course of her employment;
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability;
(3) medical evidence supported by objective findings establishing the injury;
(4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence.

[13] If claimant fails to establish by a preponderance of the evidence any of the requirements for establishing compensability of the injury alleged, she fails to establish the compensability of the claim, and compensation must be denied. See,Jerry Reed v. Con Agra Frozen Foods, Full Workers’ Compensation Commission Opinion filed February 2, 1995 (E317744). [14] In the present claim, we specifically find that claimant has satisfied all of the required elements of a specific incident injury. In this regard, the claimant’s credible testimony establishes that she developed left elbow pain following an encounter with a combative student. She stated that before the incident, she had never experienced elbow pain. Indeed, Dr. Weber’s chart note dated June 13, 1996, characterized claimant’s lateral epicondylitis as “. . . a new problem.” This is significant because Dr. Weber has treated claimant for other work-related injuries. Dr. Weber opined that claimant’s epicondylitis is work-related. In a note dated January 20, 1997, Dr. Weber stated:

Physical therapy has been treated for lat. Epicondylitis since June of 1996. I feel this is a work related injury. . . .

[15] With respect to the objective findings requirement, it has been argued that the absence of a close temporal relationship between the injury date and the discovery of objective findings is fatal to claimant’s claim. According to this line of reasoning, speculation is necessary to find the requisite causal connection. We cannot agree. The temporal gap is not problematic for as early as June 13, 1996, Dr. Weber suspected epicondylitis. This suspicion was confirmed during surgery, which was performed in June of 1997. Further, there is no evidence that claimant’s symptoms are attributable to any other cause, and she never received treatment for left elbow pain before the incident that occurred on April 10, 1996. It is noteworthy that Act 796 does not impose a limitations period during which objective findings must be discovered in order to satisfy the statute. Finally, as a practical matter, epicondylitis is an injury to the internal structure of the body. Claimant was treated conservatively for several months. No sophisticated testing was done. Claimant merely had an elbow x-ray, which was interpreted as normal. She testified that she delayed having surgery until the conclusion of the 1997 school year. Moreover, the “area of thickening” noted by Dr. Weber on December 12, 1996, also satisfies the objective findings requirement. When surgery was performed, Dr. Weber removed granulation tissue. Both Dr. Weber’s observations on December 12th and the granulation tissue satisfy the objective findings requirement. [16] On appeal, respondents argue that claimant’s diagnoses of tendinitis and epicondylitis and the discovery of granulation tissue “are not at all reflective of a single, traumatic episode. Such findings and diagnoses are much more suggestive of a long-term condition produced by the wear and tear associated with everyday living.” However, respondents offered no medical evidence at all to support their theory. Although the record reflects that claimant has sustained previous work-related injuries, there is no evidence whatsoever that there was ever any left elbow involvement. Claimant did not develop the elbow problem until the work-related injury occurred. Her physician has stated unequivocally that claimant’s epicondylitis is related to her employment. Thus, we specifically reject the argument that claimant’s epicondylitis was not caused by a specific incident. In our opinion, the preponderance of the evidence establishes the occurrence of a specific incident injury, and we find that the preponderance of the evidence establishes that the incident arose out of and in the course of claimant’s employment. Further, we find that objective medical findings establish the presence of epicondylitits, which is consistent with claimant’s complaints. Thus, we find that claimant’s fall caused internal harm. The documentary evidence shows that medical services were required as a result of the work-related incident. Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that claimant has proven by a preponderance of the evidence that she sustained a specific incident injury on April 10, 1996. Further, we find that claimant is entitled to reasonable and necessary medical treatment in connection with her work-related injury. Accordingly, the decision of the Administrative Law Judge must be affirmed. [17] 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, claimant’s attorney is hereby awarded an additional attorney’s fee of $250.00 pursuant to Ark. Code Ann. § 11-9-715 (Repl. 1996). [18] IT IS SO ORDERED

_______________________________
PAT WEST HUMPHREY, Commissioner

[19] Chairman Coffman concurs. [20] CONCURRING OPINION
[21] I concur in the principal opinion’s findings that the claimant proved that she sustained a compensable elbow injury and that the claimant is entitled to all medical treatment which is reasonably necessary for treatment of her compensable epicondylitis injury. I write separately to address the dissent’s assertion that the claimant has failed to establish the existence of her epicondylitis injury with objective medical findings. [22] First, the dissent suggests that the claimant had old complaints and “new complaints”, and that Dr. Weber only initially “suspected” epicondylitis after the April 10, 1996 incident, but later “diagnosed” epicondylitis. I note that Dr. Weber’s first relevant medical record on June 13, 1996, uses the term “epicondylitis”, and his December 30, 1996 follow up report uses the term “epicondylitis”. His January 20, 1997 handwritten note specifically states that the claimant had been treated for lateral epicondylitis since June of 1996, and that this injury is work related. Dr. Weber’s pre-operative diagnosis on June 30, 1997 was chronic recurrent lateral epicondylitis of the left elbow, and his post-operative diagnosis on June 30, 1997 was chronic recurrent lateral epicondylitis of the left elbow. In light of these consistent diagnoses of lateral epicondylitis of the left elbow, I see no basis in the record on which to reasonably conclude, as the dissent asserts, that the claimant had old complaints and new complaints, and that the claimant’s lateral epicondylitis for which she underwent surgery is not the same injury that Dr. Weber diagnosed in June of 1996. In fact, the dissent’s argument is directly contrary to Dr. Webber’s comment in January of 1997 that he had been treating the claimant for work related lateral epicondylitis since
June of 1996. [23] Likewise, I cannot agree with the dissent’s assertion that the claimant cannot establish a causal connection between the objective findings in the record and the lateral epicondylitis injury which Dr. Weber first diagnosed in June of 1996, and which he treated conservatively prior to his surgery in June of 1997. Clearly, the claimant must establish the nature and extent of her allegedly compensable injury (epicondylitis) by medical evidence supported by objective findings. See Ark. Code Ann. § 11-9-102(5)(D); See also Stephens TruckLines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). In addition, the claimant must establish a causal connection between any relevant objective findings in the record and her alleged compensable injury. See Ford v. ChemipulpProcess, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998). However, the claimant is not also required to present objective medical evidence to show the circumstances under which the injury occurred or the precise time of the injury.See Millican, supra. [24] As discussed, in the present case Dr. Weber diagnosed the claimant with epicondylitis in June of 1996, and he kept that diagnosis throughout his conservative treatment in 1996 and 1997. His pre-operative diagnosis on June 30, 1997, was epicondylitis and his post-operative diagnosis on June 30, 1997, was lateral epicondylitis. Notably, his June 26, 1997 office note indicates that he discussed with the claimant that the appropriate surgery involved elevating the tendon and removing granulation material. His June 30, 1997, operative report indicates that the underlying granulation material was in fact found and removed during surgery. Clearly, the surgical observation and removal of granulation material was an “objective finding” within the meaning of Ark. Code Ann. § 11-9-102(16). On this record, I am equally convinced by Dr. Weber’s June 26, 1997 office note that this objective medical finding (granulation) is precisely the abnormality which Dr. Weber anticipated finding in surgery and is also precisely the abnormality to which Dr. Weber was attributing the claimant’s ongoing symptoms associated with his year-long pre-surgical diagnosis of epicondylitis. Considering the nature of the injury sustained by the claimant and treated by Dr. Weber, I am at a loss to understand what additional objective medical findings the dissent might expect the claimant to offer into evidence to establish the nature and extent of her work related epicondylitis injury. [25] Consequently, on this record, and for the reasons discussed herein, I concur in the finding that the claimant established her compensable epicondylitis injury with medical evidence supported by objective findings.

_______________________________ ELDON F. COFFMAN, Chairman

[26] Commissioner Wilson dissents. [27] DISSENTING OPINION
[28] I respectfully dissent from the majority finding that claimant’s lateral epicondylitis is a result of an injury she sustained to her elbow on April 10, 1996. Based upon myde novo review of the entire record, I find that claimant has failed to establish the compensability of her claim. [29] At the hearing held on March 6, 1998, claimant contended that she sustained an injury in the form of lateral epicondylitis to her left elbow when she was pulled by the left arm and thrown about the room by one of her students. Conversely, respondent contended that claimant was unable to establish all elements of compensability. Alternatively, respondent contended that claimant’s injury was in the form of a gradual onset injury for which she is unable to prove compensability. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, I find that claimant has failed to establish the compensability of her epicondylitis. [30] Admittedly, claimant has proven an incident occurred on April 10, 1996, which meets the specific incident requirement set forth above. However, it is my finding that claimant has failed to establish that this specific incident resulted in objective medical findings establishing an injury. When claimant was examined by the physicians with the Crestview Family Clinic on the day of the incident, no objective findings were detected. X-rays of claimant’s elbow were performed which proved negative. The doctors noted full-range of motion, no joint tenderness and no edema. However, due to claimant’s subjective complaints of elbow pain, claimant was diagnosed with tendinitis and prescribed a sling and medication. Claimant was seen by the physicians at the Crestview Family Clinic in a follow-up examination approximately two weeks later. By that time claimant reported that her left arm was doing somewhat better and again no objective findings were noted. Approximately two and a half months passed before claimant was again seen by a physician. On June 13, 1996, claimant presented to Dr. Michael Weber, who had previously treated claimant’s prior orthopedic complaints. Dr. Weber’s physical examination revealed:

. . . some tenderness in both areas, but no other positive findings, including no deformity, no restriction of ROM, no weakness, no reflex changes and no sensory changes.

[31] Dr. Weber advised claimant that her elbow complaintscould be “lateral epicondylitis” and he, therefore, treated her with Celestone injections. During the next six months claimant did not present to a medical care provider in connection with her elbow complaints. [32] It was not until December 12, 1996, over eight months after claimant’s injury and more than six months since claimant last sought medical treatment, that any objective findings in or about claimant’s elbow were detected. On December 12, 1996, when claimant presented to Dr. Weber, he noted:

This woman is back after about a six month absence stating that her elbow is still bothering her, although it’s not exactly the same as it was before. She has a more diffuse pattern of tenderness and an area of thickening or almost a lumpy sensation in the extensor musculature, 1 to 2 inches from her epicondyle. Her elbow ROM is full or near full, and there are no neurologic deficits that I can detect.

[33] The majority contends that the area of thickening Dr. Weber detected is an objective medical finding. However, in my opinion, this objective finding of thickening does not arise to the level of objective findings of claimant’s injury for several reasons. First, at no time has Dr. Weber associated this thickening with claimant’s subsequent diagnosis of epicondylitis. An area of thickening could well be a callous or other abnormality that is not in any way related to an internal injury. Secondly, I note that even Dr. Weber recorded that the claimant’s complaints in December of 1996 were not the same as her complaints when he first examined her in June of 1996. I find that the delay of over eight months before the presence of any objective findings and the new complaints that were not present when claimant was examined by Dr. Weber six months previously creates grave doubt of a causal connection between claimant’s admitted incident on April 10, 1996, and the eventual detection of thickening in or about her elbow. Accordingly, in light of claimant’s new or different complaints and the lapse of time between when her incident occurred and when objective findings were first noted, I find that one would have to resort to speculation to find the two are related. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v.Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). DenaConstruction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155
(1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). [34] In this regard, I agree with the principal opinion that Act 796 does not impose a limitations period during which objective findings must be discovered. However, I must respectfully disagree that the temporal gap between claimants specific incident and subsequent development of objective findings is not problematic. On the contrary while Dr. Weber may have suspected epicondylitis in June of 1996, it was only a suspicion. Not until claimant developed new and different symptom was this diagnosis confirmed. It was these new complaints which ultimately lead to the diagnosis of epicondylitis. Since epicondylitis is commonly associated with a gradual onset condition, the development of new symptoms many months after the specific incident leads me to find that those new symptoms gradually resulted from use of the arm, not from the specific incident. Moreover, I am not persuaded to find that Dr. Weber’s comments that claimant’s condition is work related cures my causal connection concerns. A review of his records reveals a history of “. . . apparently gets banged up by her students on a regular basis . . .” In my opinion this history lacks a clear understanding of claimant’s specific injury which she alleges resulted in her current problems. Accordingly, I cannot afford any weight to Dr. Weber’s opinion. [35] Accordingly, I find that claimant has failed to prove the compensability of her injury by objective and medical findings. Therefore, I would reverse the decision of the Administrative Law Judge.

_______________________________ MIKE WILSON, Commissioner