NORWOOD v. BAPTIST HEALTH REHABILITATION INSTITUTE, 2003 AWCC 64

CLAIM NO. F200249

COLLENTINE NORWOOD, EMPLOYEE, CLAIMANT v. BAPTIST HEALTH REHABILITATION INSTITUTE, SELF-INSURED EMPLOYER, RESPONDENT, CROCKETT ADJUSTMENT, BENEFITS ADMINISTRATOR, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 1, 2003

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

Claimant represented by HONORABLE PHILIP M. WILSON, Attorney at Law, Little Rock, Arkansas.

Respondents represented by HONORABLE GAIL PONDER GAINES, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Reversed.

OPINION AND ORDER
The respondents appeal an Administrative Law Judge’s opinion filed September 11, 2002. The Administrative Law Judge found that the claimant sustained compensable bilateral shoulder injuries at the time of her wrist injuries on September 9, 2001. After reviewing the entire record de novo, the Full Commission reverses the opinion of the Administrative Law Judge.

I. HISTORY
The record indicates that Collentine Norwood, age 50, began treating with a rheumatologist, Dr. Thomas M. Kovaleski, in July 2001. Dr. Kovaleski noted that “Elbows, shoulders show some discomfort with range of motion, however, it is full.” Dr. Kovaleski’s impression in August 2001 was “Systemic lupus erythematosus.” Dorland’s Illustrated Medical Dictionary, 28th Ed., generally describes this condition as “a group of connective tissue disorders.”

The parties stipulated that the claimant sustained compensable injuries to her hands and wrists on September 9, 2001. The claimant testified that she helped another employee keep a patient from falling out of bed:

So we just pulled him to the edge . . . to . . . away from the edge of the bed to keep him from falling and got him into the . . . pulled him up in a secure way to where he wouldn’t fall, and then we took the draw sheet and finished . . . we tried to pull him farther up in the bed, and at that time, I started having pains in both of my hands, and it went all the way up to my upper arm. . . .
MR. WILSON: Let the record reflect she touched her arm in between the elbow and the shoulder.

The claimant testified that she felt pain from her hands bilaterally to her upper arms. The claimant testified that she was unable to return to work until September 12, 2001, at which time she signed a WCC Form N indicating that the part of her body injured was “R L wrist.”

The claimant presented to the emergency department on September 12, 2001 “for evaluation of bilateral wrist pain, right greater than left, injured while lifting. . . . No previous history of wrist injuries in the past.” The claimant testified that she informed the emergency department physician that she felt pain and tingling in her upper arms, and the claimant did not know why the emergency department record did not mention these complaints. In any event, the claimant was diagnosed with “wrist sprain.”

The claimant testified that she explained her symptoms to Dr. Frank H. Ma, who dictated the following on September 17, 2001:

The patient stated that she was working as an L.P.N. at the Rehab Institution on September 9, trying to help a patient who was trying to get out of the bed and in the process twisted her wrist. Did not fall on it and has had no other areas of injury. Started having pain in both wrists, worse on the right than left. . . . She is also complaining of some tingling of the long finger, ring finger and small fingers of both hands. . . .

FINAL DIAGNOSIS:

BILATERAL WRIST SPRAIN.

Dr. Michael M. Moore opined on September 19, 2001:

Ms. Norwood’s clinical history and physical examination are consistent with a right de Quervain’s syndrome and possibly bilateral carpal tunnel syndrome. In addition, the x-ray studies suggest early degenerative changes of the wrists and thumb basilar joints.

Dr. Moore recommended additional conservative treatment and diagnostic studies.

Becky Hollis, a registered nurse and case manager for the respondent-employer, testified that she first spoke with the claimant on September 19, 2001 regarding the injury. Ms. Hollis testified that the claimant complained of pain and weakness in her hands and wrists. Ms. Hollis did not recall complaints of upper arm or shoulder pain, and testified that she would have noted such complaints.

Dr. Kovaleski noted on October 11, 2001:

[S]he reports that she has bilateral shoulder pain rather markedly which began 4-6 weeks ago. . . .
She remembers no specific trauma at work. However, she does do a fair amount of lifting. . . .

IMPRESSION:

1. Systemic lupus erythematosus.

2. Bilateral shoulder pain. I do not think this is from her lupus.

Dr. Kovaleski arranged magnetic resonance imaging of the claimant’s shoulders. An MR of the right shoulder was taken on October 13, 2001, with the following impression:

1. Full thickness tear involving the anterior leading edge of the supraspinatus tendon as above. The musculotendinous junction is in its anatomic position.
2. Degenerative changes to the acromioclavicular joint with a Type III acromion appreciated.
3. Numerous foci of signal abnormality up to 1 cm in size within the anterior soft tissues in the region of the brachial plexus. These may represent subcutaneous cysts; however, neurofibromas involving the brachial plexus could have this appearance. . . .

An MRI of the left shoulder was also taken on October 13, 2001, with the following impression:

1. Signal abnormality to the undersurface of the distal supraspinatus tendon suggestive of partial tear and/or intrasubstance degeneration. The musculotendinous junction is normal anatomic position.
2. Extensive fluid seen within the subacromial/subdeltoid bursa suggestive of bursitis.
3. Degenerative changes seen about the acromioclavicular joint. The patient has a Type II acromion.
4. Areas of signal abnormality and focal masses of increased signal intensity within the soft tissues and anterior shoulder and distribution of the brachial plexus as described above. These may represent small subcutaneous/sebaceous cysts; however, neurofibromas involving the brachial plexus cannot be excluded. . . .

Dr. Moore reported on October 15, 2001:

She underwent a nerve conduction and EMG study, which was consistent with a severe bilateral carpal tunnel syndrome. In addition, her physical examination is consistent with a right de Quervain’s syndrome. . . .
It was my opinion she would benefit from carpal tunnel surgery and a right de Quervain’s release.

Dr. Kovaleski noted on November 14, 2001:

The patient returns with systemic lupus erythematosus. An MRI of the shoulder shows that she has bilateral rotator cuff tears. As suspected, this is not related to her lupus. She has also had carpal tunnel surgery. . . .
She is having a difficult time fulfilling her job duties because of the carpal tunnel and shoulder pain. She thought that the shoulder pain was related to her carpal tunnel. There was an incident at work, apparently, where she had to lift a patient, and I suspect that lifting the patient, who apparently could not assist, is related to the rotator cuff tears by cause and effect. . . . A note is also made of a cyst about the right brachial plexus, questioning whether the patient has neurofibromatosis, and the patient does not. . . .

IMPRESSION:

1. Lupus, fair control.

2. Bilateral rotator cuff tears, probably related to trauma related to her work.

3. Bilateral carpal tunnel syndrome.

The claimant testified that she told Becky Hollis that MRI showed rotator cuff tears, and that Ms. Hollis told her to complete another incident report. Ms. Hollis testified:

Q. And what complaints was she making at that time?

A. Well, she said that, “It looks like I have had another injury,” that she had been to Dr. Kovaleski for a routine check. She was having extreme bilateral shoulder pain, and that Dr. Kovaleski did MRI’s, and that both rotator cuffs were torn, and that he advised her those needed to be taken care of. . . . And she said that he told he (sic) it could have been caused by the job, and that I told her that this was the first time I had heard of it. . . . And I believe it was at that point I said, “Well, if this is something you feel you did at work, you need to fill out a report.”

The claimant signed a Form AR-N, Employee’s Notice Of Injury, on November 15, 2001, indicating she had injured her right and left hands and “Bilat (R) L Rotator Cuffs.” The claimant described the cause of injury: “Assisted with pulling pt back up in bed. Felt pain bilat arms hands.”

The claimant underwent a right carpal tunnel release and right deQuervain release on December 6, 2001. Dr. Moore informed an adjuster on December 6, 2001 that the claimant “has not mentioned any symptoms related to shoulder pain or rotator cuff injuries.”

Dr. Charles E. Pearce, Jr. examined the claimant on December 18, 2001:

Ms. Norwood is a 49-year old, right-handed LPN with bilateral shoulder pain; right worse than left. She may have injured her shoulders while gainfully employed on 9/10/01 while at work at BRI. She said that she was assisting a patient who was falling out of bed, with the help of a nursing assistant, and had an injury to her arms. She developed carpal tunnel syndrome. . . .
She has had pain to the extent that MRI scans have been done of her shoulders. The reports indicate a full thickness tear of the supraspinatus on the right with a Type III acromion. . . . The left shoulder has similar findings about the possibility of neurofibromas, supraspinatus tendinosis, possible partial tear, Type II acromion, and fluid in her bursa. . . .
IMPRESSION: Bilateral shoulder pain, right greater than left — Right rotator cuff tear and adhesive capsulitis.

Dr. Pearce recommended “physiotherapy to begin regaining her motion before anything else is suggested.”

An adjuster informed the claimant on December 28, 2001 that Dr. Kovaleski was considered an unauthorized physician with regard to the claim, and that the respondent-employer did not accept the claim for “rotator cuff injuries.”

The impression of Dr. Pearce on February 1, 2002 was the following:

Bilateral shoulder pain, right rotator cuff tear with impingement and adhesive capsulitis that seems to be improving. Left shoulder possible partial tear also with impingement and adhesive capsulitis improving.

On March 1, 2002, Dr. Moore pronounced maximum medical improvement following the claimant’s right carpal tunnel release and right de Quervain’s release. Dr. Moore opined that the claimant would benefit from a left carpal tunnel release and right ring finger A1 pulley release. Dr. Moore performed these procedures on April 11, 2002.

Ms. Norwood claimed entitlement to additional worker’s compensation. The claimant contended that she sustained compensable injuries to her shoulders on September 9, 2001, for which she was entitled to reasonably necessary medical treatment. The respondents contended that the claimant did not sustain compensable shoulder injuries.

On July 8, 2002, Dr. Moore pronounced maximum medical improvement following the claimant’s left carpal tunnel release and right ring finger A1 pulley release.

The parties deposed Dr. Kovaleski on July 11, 2002. Dr. Kovaleski noted that he first began treating the claimant in July 2001, before the claimant’s compensable injuries to her hands and wrists. With regard to the claimant’s bilateral shoulder discomfort in July 2001, Dr. Kovaleski testified, “With what I know now, I suspect that she was symptomatic from her rotator cuff tears.” Dr. Kovaleski agreed that the report of shoulder discomfort in July 2001 was consistent with a rotator cuff tear in July 2001. Dr. Kovalseki testified, “I am no expert in rotator cuff tears. . . .” Dr. Kovaleski also testified that he did not treat the claimant for her rotator cuff tears.

Dr. Kovaleski agreed with the respondents’ attorney that the claimant’s hand and wrist symptoms in September 2001 were not consistent with an acute rotator cuff tear. The respondents’ attorney queried Dr. Kovaleski:

Q. And I’m asking you if you can say to any reasonable degree of medical certainty that that lifting incident where she complained of hand and wrist pain is the cause of her shoulder symptoms, particularly where she was complaining of painful motion, rotation of motion, in July when you fir saw her, particularly where the MRI wasn’t do until after all of that?
A. Yeah, you can say that, you know, and I’ll tell you how. It’s very simple. When I first saw her, she was complaining of pain everywhere. Okay? She had painful hands, painful joints, everything else. So I don’t know what was in her shoulders at that time. I didn’t do an MRI scan; it wasn’t indicated. Okay? She was kind of globally systemically ill. So I didn’t go hunting for a local problem, didn’t. It was only until this lady started feeling better and functioning better that she’s focused more in on her shoulders. She said, “I feel better except for my hands and my shoulders.” Well, lupus doesn’t do that, and that’s why I started hunting. I wasn’t too concerned about causality. It was just really what was going on with this lady. And so, you know — so I’m lost again.
Q. Well, unfortunately, we’re at a point where causality is an issue at least in her workers’ compensation case. And I’m just trying to determine whether, given all this history that we’ve seen and some of the more degenerative findings on her MRI, you can be the one to state with a reasonable degree of medical certainty that an incident lifting a patient at work is the cause of her shoulder complaints —

A. The rotator cuff?

Q. — particularly where she had some shoulder complaints before and —
A. No, I can’t say proof positive for sure that that lifting incident caused all of her shoulder problems, I can’t say that. For sure.

The claimant’s attorney cross-examined Dr. Kovaleski:

Q. Now, Doctor, if the claimant did in fact have a lifting incident that was severe enough to cause traumatic CTS in both wrists, and then at that same time had symptoms up to the upper part of her arm, would it be reasonable to assume that the major cause — being over 50 percent, not without certainty — of her current symptoms on her shoulder would be the lifting incident?

A. That’s how I approached it.

***

Q. I mean, obviously the traumatic event at least aggravated any preexisting condition that she might have had. Is that a fair statement?

A. That would be a fair statement.

After a hearing before the Commission, the Administrative Law Judge found, “The preponderance of the evidence shows that the claimant suffered compensable bilateral shoulder injuries arising out of and in the course of her employment at the time of her wrist injuries on September 9, 2001.” The respondents appeal to the Full Commission.

II. ADJUDICATION
The claimant bears the burden of proving by a preponderance of the evidence that she is entitled to worker’s compensation. Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(4)(A), defines “Compensable injury”:

(i) An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, included eyeglasses, contact lenses, or hearing aids, arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence[.]

In the present matter, the claimant testified that she experienced pain in her upper arms as well as her hands and wrists at the time of the compensable injury. Dr. Kovaleski testified that upper-arm (humerus) symptoms were consistent with a rotator cuff injury. The claimant reported to Dr. Kovaleski that she felt bilateral shoulder pain at about the time of the compensable injury. An October 2001 MRI showed a full thickness tear in the right shoulder and evidence of a partial tear in the left.

In addition, Dr. Kovaleski opined in November 2001, “I suspect that lifting the patient, who apparently could not assist, is related to the rotator cuff tears by cause and effect.” Dr. Kovaleski’s impression was “Bilateral rotator cuff tears, probably related to trauma related to her work.” Dr. Kovaleski testified for the claimant’s attorney that he approached the claimant’s rotator cuff symptoms as being related to the compensable injury.

After de novo review of the entire record, however, the Full Commission finds that the claimant did not prove by a preponderance of the evidence that she sustained bilateral rotator cuff tears at the time of her compensable wrist injuries. The claimant first reported shoulder discomfort in July 2001, about two months before the compensable wrist injuries. Although Dr. Kovaleski, a rheumatologist, admitted that he was not an expert on rotator cuff tears, he testified that he believed this shoulder discomfort to be consistent with rotator cuff tears, existing before the compensable wrist injuries.

The parties stipulated that the claimant sustained compensable injuries to her hands and wrists on September 9, 2001. The claimant testified that she felt pain radiating all the way through her upper arm; however, a Workers’ Compensation Commission Form N shows that the only injury reported by the claimant was right and left wrist pain. The emergency department record also revealed only wrist pain, not upper arm or shoulder pain. Dr. Ma’s diagnosis was bilateral wrist pain, and his notes showed no upper arm or shoulder pain. Dr. Ma wrote that the claimant “has had no other areas of injury” other than her wrists.

The Full Commission finds that the claimant failed to prove by a preponderance of the evidence that she sustained an accidental injury to her shoulders on September 9, 2001. In addition to the evidence describe supra, we note that Dr. Moore reported only wrist and hand symptoms and did not report evidence of shoulder injuries. Dr. Moore, an orthopedic surgeon who presumably is an expert in rotator cuff tears (even though he specializes in the hand), expressly stated that the claimant “has not mentioned any symptoms related to shoulder pain or rotator cuff injuries.” Becky Hollis credibly testified that the claimant did not report upper arm or shoulder symptoms to her. Even where Dr. Kovaleski stated in October 2001 that the claimant had bilateral shoulder pain, the claimant reported “no specific trauma at work.” The claimant’s first Commission Form N described an injury only to the “R L wrist.” Following the MRI studies, the claimant submitted a Form AR-N with a revised description of injury, describing an injury to her “bilateral rotator cuffs.”

Finally, Dr. Kovaleski was unable to state with reasonable medical certainty that the claimant’s rotator cuff tears were causally related to her compensable wrist injuries. Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Ark. Code Ann. § 11-9-102(16)(B). In fact, Dr. Kovaleski testified that he believed the rotator cuff tears to have existed in July 2001, before the September 2001 wrist injury. The Full Commission finds that the

Administrative Law Judge’s findings are not supported by the record. Our de novo review of the record indicates that the claimant did not sustain bilateral rotator cuff tears at the time of her wrist injuries in September 2001. We note that the respondents have provided reasonably necessary medical treatment in connection with the claimant’s compensable wrist injuries.

Based on our de novo review of the entire record, the Full Commission finds that the claimant failed to prove by a preponderance of the evidence that she sustained a “compensable injury” to her shoulders, as defined by Ark. Code Ann. § 11-9-102(4)(A)(i). We therefore reverse the Administrative Law Judge’s finding that “the claimant suffered compensable bilateral shoulder injuries arising out of and in the course of employment at the time of her wrist injuries” on September 9, 2001. This claim is denied and dismissed.

IT IS SO ORDERED.

______________________________ OLAN W. REEVES, Chairman
______________________________ JOE E. YATES, Commissioner

Commissioner Turner dissents.

DISSENTING OPINION SHELBY W. TURNER, Commissioner

I must respectfully dissent from the majority opinion, which reverses the decision of the Administrative Law Judge that claimant sustained compensable injury to her shoulders on September 9, 2001. I find that the claimant proved by a preponderance of the evidence that her rotator cuff tears as observed by MRI were at least aggravated by the lifting incident in which she was injured on that date.

In his deposition testimony, Dr. Kovaleski testified that rotator cuff pain is often manifested in the patient’s upper arms rather than in the shoulders. The claimant complained of pain in the upper arm immediately after the September 9, 2001 accident. Dr. Kovaleski further testified that the claimant did not have a history of upper arm symptoms until after the September 9, 2001 accident, which at the least indicates that the rotator cuff tears were aggravated after he had initially seen the claimant on July 11, 2001. Even if it is conceded for purpose of argument that claimant’s rotator cuff tears pre-dated the work accident, claimant has met her burden to prove a causal connection between the compensable injury and the subsequent disability as long as claimant proved that these preexisting problems were exacerbated or aggravated by the compensable injury,. See General Elec. Railcar Repair Svs. v. Hardin, 62 Ark. App. 120, 969 S.W.2d 667 (1998).

For these reasons, I respectfully dissent.

_______________________________ SHELBY W. TURNER, Commissioner