CLAIM NO. E811695.
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 5, 2000.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondents represented by JUDY ROBINSON WILBER, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
Claimant appeals an October 19, 1999 opinion of the Administrative Law Judge finding that she failed to prove by a preponderance of the evidence that she sustained a compensable injury in the form of carpal tunnel syndrome.
Since claimant asserts that she sustained a work-related gradual onset carpal tunnel syndrome injury that occurred after July 1, 1993, claimant is not required under the provisions of Act 796 of 1993 to establish that her work duties involved rapid repetitive motion as an element of her claim. See Kildow v.Baldwin Piano and Organ, 333 Ark. 335 969 S.W.2d 190 (1998). However, claimant must still establish that her carpal tunnel syndrome injury arose out of and in the course of her employment, that the work-related injury is the major cause of her disability or need for medical treatment, and claimant must establish the compensable injury with objective medical findings. See Id.
After our de novo review of the entire record, we find that claimant has met her burden of proof and accordingly, reverse the opinion of the Administrative Law Judge.
Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission. Mikel v. Engineered SpecialtyPlastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). We specifically find that claimant presented credible testimony in this matter. A careful and impartial review of the entire record will not support the efforts to impugn claimant’s credibility.
In his opinion, the ALJ made the following comments:
. . .Here, claimant initially testified that her problems began while working for the respondent in June 1998. However, claimant also admitted that the problems with her wrist and hands actually began in October or November 1997 while she was working for another employer, Shortstop Truck Stop.
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More importantly, claimant admitted upon cross- examination that when she went to work for the respondent she was still having problems with pain in her wrist at that time.
The record reveals that during direct examination, claimant testified that her problems began prior to her employment with respondent. She certainly did not deny or fail to “admit” on direct that her problems began prior to her employment with respondent.
Also during direct examination, rather than cross examination, claimant testified at page 13 in the following manner:
Q. Had you had any symptoms in your hands and arms before you went to work for Shoney’s?
A. Yes, I did.
Q. When, approximately?
A. October, November of `97.
Q. Were you working then?
A. Yes.
Q. Where?
A. Short Stop Truck Stop.
All respondent’s attorney did on cross was reiterate claimant’s testimony on direct:
Q. Now, you testified that you had problems with your hands and your wrists develop one year or so before you went to Shoney’s, is that right?
A. Yes.
Q. And you first noticed these problems with your hands when you were working at Short Stop?
A. Right.
Further, the record does not support the assertion by the ALJ and respondent that claimant said her problems began in June 1998. Claimant testified on direct, at page 5, in the following manner:
Q. Did anything unusual happen to you in June of 1998 while in the employment of Shoney’s?
A. No. — well, my hands started hurting really bad and became numb in these two fingers on both hands.
The greater weight of the evidence indicates that claimant’s duties as a prep cook and assistant manager in the kitchen, (duties of food preparation), were extremely hand-intensive. It appears that the primary dispute in this case centers around whether claimant’s condition is the result of her employment with Shoney’s or her prior employer.
The ALJ found that claimant failed to prove that she sustained a compensable injury which was major cause of her disability or need for treatment. In so finding, the ALJ discounted Dr. Clark’s opinion because “there is no indication that Dr. Clark was aware that claimant’s complaint began prior to her employment with the respondent as a result of a similar job she performed for ShortStop Truck Stop. Further, there is no indication that he was aware of claimant’s admission that those problems were present even as she began working for the respondent.”
On August 3, 1998, Dr. Knubley opined that “[b]ased on the patient’s reported job description, it is very likely that some of these activities may aggravate her underlying disorder.” It is obvious from Dr. Knubley’s reports that he had a fairly accurate and complete history, as evidenced by his report of August 11, 1998. Since a copy of Dr. Knubley’s August 3 and August 11 notes were sent to Dr. Terry Clark, it can fairly be implied that Dr. Clark was, in fact, aware of claimant’s history. On August 29, 1998, Dr. Clark opined that “[i]t is my opinion that her carpal tunnel syndrome most likely is related to her type of employment.” There is certainly no evidence or suggestion in the record that Dr. Clark was not aware of claimant’s history. We find that the opinions of Drs. Knubley and Clark are entitled to great weight, especially since these opinions concerning causation are the only ones in the record.
While claimant may have experienced some symptoms prior to the employment with respondent, there is no evidence that she had previously required any treatment, received a diagnosis, or suffered any disability until after performing her job duties at the present employer for several months.
Based on claimant’s credible testimony and the opinions of Drs. Knubley and Clark, we find that claimant has proven by a preponderance of the evidence that her condition arose out of and in the course of her employment and that this injury is the major cause of her disability or need for treatment. Further, this condition was objectively confirmed by electrodiagnostic studies.
Accordingly, we reverse the opinion of the Administrative Law Judge finding that claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury. 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 opinion of the Administrative Law Judge. Further, we find that claimant’s attorney is entitled to the maximum allowable statutory attorney’s fee based on respondent’s controversion of this claim in its entirety. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00.
IT IS SO ORDERED.
________________________________ PAT WEST HUMPHREY, Commissioner
Chairman Coffman concurs.
CONCURRING OPINION
I concur in each of the principal opinion’s findings. I write separately to express my conclusions on the dissent’s assertions that (1) the evidence clearly shows that the claimant did not sustain a compensable carpal tunnel syndrome injury while working for the respondent employer (2) at best, the claimant’s injury, if she is found to have one, originated while she was working for her previous employer and (3) the claimant clearly failed to prove that her alleged injury was the major cause of her disability or need for medical treatment.
As to the dissent’s second argument, I respectfully point out, as does the principal opinion, that the claimant’s carpal tunnel syndrome injury has been confirmed by objective diagnostic testing. There is no question that the claimant suffers from injury. The dissent is, however, certainly correct that the claimant experienced some degree of hand problems while working for her prior employer (“Short Stop”). In fact, the claimant was very forthright in acknowledging in her testimony that she had arm and wrist symptoms prior to beginning work at Shoney’s. However, the claimant’s pain didn’t get “bad” and she did not develop numbness in her fingers until June of 1998 (T. 5), i.e., a significant period of time after she left Short Stop in approximately November of 1997 and had started to work for Shoney’s.
Certainly, the primary issue in this case appears to be whether or not, under the circumstances of this case, a preponderance of the evidence establishes that an injury at Shoney’s is the major cause of the claimant’s disability and need for medical treatment, or whether an injury sustained before the claimant began working at Shoney’s is the major cause of her disability and need for medical treatment.
As I understand the claimant’s brief, the claimant argues that: (1) because the claimant never sought any medical treatment or was ever diagnosed with carpal tunnel syndrome for any hand/wrist problems she had before going to work at Shoney’s (2) but had to go to the doctor and was diagnosed with carpal tunnel syndrome when her symptoms got bad after working for Shoney’s for about six months (3) and since the claimant has never been diagnosed with any hand/wrist abnormality other than carpal tunnel syndrome, then (4) the claimant has clearly proven by a preponderance of the evidence that a work-related carpal tunnel syndrome injury at Shoney’s is the major cause of her need for medical treatment, satisfying Ark. Code Ann. § 102(5)(E)(ii) (Repl. 1996).
While I do not necessarily agree with the claimant’s argument that the first three facts automatically lead to the conclusion that an injury at the second employer is the major cause of the injured worker’s disability or her need for medical treatment, I do agree that the claimant has established by a preponderance of the evidence that an injury arising out of her employment with Shoney’s is the major cause of her disability and need for medical treatment in the present case. The evidence which I rely on in reaching the conclusion that the claimant established the major cause requirement includes: (1) the claimant’s testimony that her pain got bad and she developed finger numbness in June of 1998 (several months after she started working at Shoney’s), (2) the claimant’s testimony that she never received treatment for her hand problems and was never diagnosed with carpal tunnel syndrome prior to going to work at Shoney’s, (3) Dr. Clark’s 8-29-99 opinion letter and (4) Dr. Knubley’s 8-3-98 opinion letter.
While I agree with the dissent that there is no dispute that the claimant sustained some degree of injury while employed by Super Stop, the clear weight of the evidence in this case establishes that the major cause of the claimant’s disability and need for medical treatment was the additional injury she sustained as a result of her hard-intensive work at Shoney’s.
___________________________ ELDON F. COFFMAN, Chairman
Commissioner Wilson dissents.
DISSENTING OPINION
I respectfully dissent from the majority’s opinion finding that the claimant proved by a preponderance of the evidence that she sustained a compensable injury in the form of carpal tunnel syndrome. Based upon my de novo review, I find that the claimant has failed to meet her burden of proof.
In my opinion, the claimant has failed to prove by a preponderance of the evidence that her alleged compensable injury was the major cause of her disability or need for medical treatment. The evidence shows that the claimant was having problems with her hands prior to going to work for the respondent employer. The claimant was employed by the Shortstop Truck Stop and performed the same job duties that she performed as a prep cook for the respondent employer. While employed by Shortstop Truck Stop, the claimant cooked and did prep work for approximately 8 hours per day and she did this for 3 years and 9 months. The claimant complained of pain in her wrist to Jim Soehlman, the general manager, only 2 months after she began working for the respondent employer. At that time, she failed to relate her wrist pain to her job.
The evidence clearly shows that the claimant did not sustain a compensable carpal tunnel syndrome while working for the respondent employer. At best, the claimant’s injury, if she is found to have suffered one, originated while she was working for her previous employer. Clearly, the claimant has failed to prove that her alleged injury was the major cause of her disability or need for medical treatment. Accordingly, I respectfully dissent from the majority’s opinion awarding benefits.
______________________________ MIKE WILSON, Commissioner