WALTERS v. U.S. TIMBER COMPANY, 2005 AWCC 156

CLAIM NO. F304712

JEREMY WALTERS, EMPLOYEE, CLAIMANT v. U.S. TIMBER COMPANY, EMPLOYER, RESPONDENT, TRAVELERS INSURANCE CO., INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 4, 2005

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

Claimant represented by the HONORABLE R. GUNNER DELAY, Attorney at Law, Fort Smith, Arkansas.

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

Decision of the Administrative Law Judge: Affirmed

OPINION AND ORDER
The Arkansas Court of Appeals has reversed and remanded the above-styled case to the Full Commission for further findings of fact.Walters v. U.S. Timber Company, CA 04-1326 (May 25, 2005). The Court of Appeals has determined that the Commission “failed to make specific findings of fact in regard to Dr. Kelly’s medical notes surrounding appellant’s bilateral pronator-tunnel release surgeries.” After reviewing the entire record de novo, including Dr. Kelly’s medical notes surrounding appellant’s bilateral pronator-tunnel release surgeries and the progress notes before and after these surgeries cited by the Court of Appeals, the Full Commission finds that the claimant proved by a preponderance of the evidence that he sustained bilateral carpal tunnel syndrome while working for the respondent. The respondent should pay for the medical treatment for this claimant’s bilateral carpal tunnel syndrome treatment. We also find that the claimant proved by a preponderance of the evidence that he is entitled to temporary total disability from July 9, 2002, until June 13, 2003.

I. History

The claimant, age 31, began working for the respondent/employer in June of 2001. The claimant’s initial job duties required him to “pull lumber off the chain” in what he believed to be a repetitive motion and stack it in a bundle on a cart. The claimant testified that he performed this task continuously throughout his shift. The claimant was subsequently required to run the “tilt hoist” machine wherein he was required to “flip boards”. These boards were 2-by-12s and various other sizes. The claimant was also required to perform this task during the entire course of his shift.

The claimant had not experienced any prior problems with his hands or wrists before going to work for the respondent. Although the claimant developed slight hand and wrist problems after he began performing his initial job duties, his pain and related symptoms worsened approximately one month after he started running the “tilt hoist” machine. Therefore, the claimant sought treatment from Dr. Michael Miranda for the problems with his hands and wrists.

Specifically, on June 27, 2002, the claimant complained to Dr. Miranda of wrist and hand pain that he maintained had been going on during the last month. The claimant described pain that started from his wrist and radiated into his elbows, and pain that affected the thumb, 2nd and 3rd fingers. The claimant had no reports of numbness, but he did have reports of tingling. Also, on June 27, 2002, Dr. Miranda reported, “I don’t see any obvious swelling or deformity of the hand or wrist, positive teneal [sic] sign bilaterally and positive phalanx test, bilaterally [sic].” At that time, Dr. Miranda assessed the claimant as having “bilateral carpel tunnel syndrome.”

According to the claimant, Dr. Miranda referred him to Dr. Smith at River Valley Orthopedic Clinic in Fort Smith. Dr. Smith performed carpal tunnel surgery on both of the claimant’s wrists. The claimant maintains that the first surgery was performed on his right wrist in August of 2002, and the second surgery was performed on his left wrist in September of 2002.

After these two surgeries, the claimant was referred to Dr. James E. Kelly III, due to continued symptoms of pain and numbness of the arms and hands, which were accompanied by “tingling” sensations. Subsequently, the claimant underwent surgery to both elbows with Dr. Kelly.

According to the medical records of evidence, the claimant underwent “left pronator tunnel release” with Dr. Kelly on February 27, 2003. The record contains the following report of this procedure.

Description: With the patient having had successful axillary block placed in the left upper extremity, he was draped and prepped in the usual fashion. A zig-zag incision was made over the volar aspect of the left proximal forearm overlying the pronator tunnel. Skin flaps were elevated preserving all neurocutaneous branches. Dissection was then carried down through the fascia and just medial to the brachioradialis down to the aponeurosis of the biceps which was taken down. The median nerve was identified and then dissection was carried out distally to out where the posterior branch takeoff was and removal of as well as splitting of the pronator fascia was carried out in its entirety. Allografts performed as noted in the median nerve. . . .

Thereafter, the claimant was discharged to the recovery room in good condition.

On March 14, 2003, the claimant presented to Dr. Kelly for follow-up care. Dr. Kelly reported that the claimant’s left release had been successful. In addition to this, Dr. Kelly stated, “He is free to do anything he would like with the left arm at this point and time, and I would like him to return in about six weeks, at which point I will recheck his arm. If it is fully recovered, then at that point and time we can then schedule him to do the opposite side.”

The next medical record shows that the claimant was seen by Dr. Kelly on April 28, 2003. Although the claimant’s numbness was better, he reported still having “achy pain.” Dr. Kelly reported that the claimant had high “tinels” up into the arm as well as the infraclaviculary area. As a result, Dr. Kelly ordered an MRI of the claimant’s neck so that he could determine if the claimant had any neck disc problems.

The claimant was seen for a follow-up visit on May 12, 2003. At that time, Dr. Kelly reported:

Mr. Walters presents to the office today in follow up for his upper extremity exam. His MRI was negative. He had normal C-spine exam. He has strongly positive tinels now down into the forearm and just to the base of the hand, so I am sure that his left pronator tunnel release is recovering and I expect that he will start to see recovery sensation over the next 2-3 months. At this point, I plan to schedule him for his right pronator tunnel release. . . .

On May 16, 2003, the claimant underwent right pronator tunnel release with Dr. Kelly for “right pronator tunnel syndrome.” Dr. Kelly described the surgery in part, as follows:

The brachioradialis reflected from harm’s way and the fibrosis of the biceps tendon was released and then the median nerve was then dissected from proximal to distal down through to the pronator entrance into the tunnel. The pronator had a sharp fibrous band pressing against the nerve which had an hourglass deformity. . . .

Dr. Kelly reported on June 13, 2003:

Mr. Walters presents to the office today in follow up after he had a right pronator tunnel release completed back on May 16th. His sensation is better. He states he doesn’t tingle as much. He still is having some tingling and discomfort that goes down into the hand and arm, but I think that this is in keeping with the level and degree of the compression that he had in the forearm. His left arm is slowly getting better as well. At this point I think it is just a matter of time to allow the nerve to resolve. I explained all of this to him. He is free to use his hand at will and I will see him back in about three months for a final recheck.

A hearing was held before the Commission on September 11, 2003. At the hearing the claimant gave testimony. The claimant testified that he has continued to have problems with his elbows after the surgery because they “go numb” and “tingle and hurt.” The claimant further testified that he has not worked since July 9, 2002. According to the claimant, he was discharged by the respondent due to his carpal tunnel syndrome.

Prior to the hearing, a pre-hearing order was entered in this case on June 26, 2003. This pre-hearing order set out the stipulations offered by the parties, and outlined the issues to be ligated and resolved at the hearing which was held on September 11, 2003. By agreement of the parties, the issues to be litigated and resolved at the hearing were limited to the following:

1. Compensability of the claimant’s bilateral carpal tunnel problems.

2. Related medical.

3. Temporary total disability from July 9, 2002, to a date to be determined.

4. Attorney’s fees.

Pursuant to these stipulations, the claimant contended that he is entitled to temporary total disability benefits from July 9, 2002, to the present. In contrast, the respondent contended that the claimant did not sustain a compensable injury within the course and scope of employment with U.S. Timber.

After a hearing before the Commission, the administrative law judge found, in pertinent part:

4. The claimant has proven by a preponderance of the evidence that he sustained bilateral carpal tunnel syndrome while working for the respondent.
5. The respondent should pay for the medical treatment for this claimant’s bilateral carpal tunnel syndrome treatment.
6. The claimant has proven by a preponderance of the evidence that he is entitled to temporary total disability from July 9, 2002, until June 13, 2003.

In an opinion filed September 16, 2004, the Full Commission reversed the opinion of the administrative law judge. The Full Commission found, “the claimant failed to establish a compensable injury in the form of bilateral carpal tunnel syndrome with medical evidence supported by objective findings. We also found that the claimant failed to prove he was entitled to any temporary total disability or medical benefits.”

The claimant appealed to the Arkansas Court of Appeals. The Court of Appeals determined, “We do not address the merits of appellant’s appeal. Instead, we reverse and remand this case to the Commission for further factual findings.” The Court stated:

After reviewing the Commission’s findings and conclusion of law, we note that the Commission failed to make specific findings of fact in regard to Dr. Kelly’s medical notes surrounding appellant’s bilateral pornator-tunnel release surgeries. The Commission made no determination as to whether Dr. Kelly’s progress notes before or after the pronator-tunnel release surgeries referenced or contained any objective medical findings. The Commission’s decision focused on the Tinel’s sign and Phalen’s sign tests without considering whether any other medical evidence presented in this case satisified the “objective-medical findings requirement of the statute.

II. Adjudication

In the present matter, the central issue is whether the claimant’s physician’s diagnosis of carpal tunnel syndrome is supported by objective findings as defined by Arkansas Code Ann. § 11-9-102(16). Based on the record before us, and in accordance with the remand from the Court of Appeals, the Full Commission finds that Dr. Kelly’s operative notes pertaining to the pronator-tunnel release procedures performed on the claimant’s elbows contain sufficient objective medical findings of impingement to satisfy the “objective medical findings” requirement of the statute. We further find that the claimant proved all of the other elements to establish a compensable injury in the form of bilateral carpal tunnel syndrome. As a result, the respondent shall pay for the medical treatment for the claimant’s bilateral carpal tunnel syndrome treatment. We also find that the claimant proved that he is entitled to temporary total disability benefits from the date of his termination on July 9, 2002, until June 13, 2003, when Dr. Kelly reported following the claimant’s second elbow surgery that he was free to use his hand at will. Therefore, based on our de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge filed on November 3, 2003.

The claimant’s attorney is entitled to a fee for legal services pursuant to Ark. Code Ann. § 11-9-715(Repl. 2002). For prevailing on appeal to the Full Commission, the claimant’s attorney is entitled to an additional fee of five hundred dollars ($500.00), pursuant to Ark. Code Ann. § 11-9-715(Repl. 2002).

IT IS SO ORDERED.

________________________________ OLAN W. REEVES, Chairman
________________________________ SHELBY W. TURNER, Commissioner

Commissioner McKinney dissents.

DISSENTING OPINION KAREN H. McKINNEY, Commissioner.

I respectfully dissent from the majority opinion finding that the claimant has proven by a preponderance of the evidence that he sustained compensable bilateral carpal tunnel syndrome while working for the respondent. The Arkansas Court of Appeals reversed and remanded the present case to the Full Commission for further findings of fact after the Court determined that the Commission had “failed to make specific findings of fact in regard to the Dr. Kelley’s medical notes surrounding appellant’s bilateral pronator-tunnel release surgeries.” After reconsideration of Dr. Kelley’s operative notes, the majority now finds that Dr. Kelley’s operative notes pertaining to the pronator-tunnel release procedures performed on the claimant’s elbows contain sufficient objective medical finding of impingement to satisfy the “objective medical findings” requirement of Arkansas Code Ann. § 11-9-1102(16). However, after my own reconsideration of this medical evidence, I find that the claimant has failed to prove by a preponderance of the evidence that he sustained carpal tunnel injuries within the course and scope of his employment. Therefore, an award of related medical expenses and temporary total disability benefits should be denied.

The claimant asserts that he sustained a gradual onset bilateral carpal tunnel syndrome injury during the course and scope of his employment with the respondent employer. Therefore, 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 injury. Kildow v. Baldwin Piano and Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). However, the claimant must still prove that he sustained a carpal tunnel syndrome injury arising out of and in the course of employment, that a work-related injury is the major cause of his disability or need for further medical treatment, and the compensable injury must be established by objective medical findings.

The relevant medical evidence in this case consists of one clinic note from Dr. Miranda, one operative report from Dr. Kelley, and four progress notes from Dr. Kelley. Even if the scant medical evidence presented in this claim supports an objective finding that the claimant sustained bilateral carpal tunnel syndrome, a finding which I do not specifically make, there is no evidence otherwise that supports a finding that the claimant sustained a carpal tunnel syndrome injury arising out of and in the course of employment.

The claimant, who was age 30 at the time of his hearing in September of 2003, testified that prior to his carpal tunnel surgery in 2002, he had worked in manual labor positions from the age of 18 years old. The claimant further agreed that these positions, which included welding and working at a chicken plant, required him to use his hands on a constant basis. Although he admittedly performed the types of tasks that required constant use of his hands for at least twelve years prior to his alleged onset of carpal tunnel, the claimant denied ever having experienced prior problems with his hands or wrists prior to his employment with the respondent employer. Due to numerous inconsistencies in the claimant’s testimony, however, the claimant has shown himself to be an unreliable witness. Furthermore, the claimant provided no evidence to corroborate his own self-serving testimony regarding the cause of his alleged injury. The record conclusively establishes that the claimant underwent a left pronator-tunnel release in February of 2003, and a right pronator-tunnel release the following May. However, the claimant has offered insufficient evidence to establish that his bilateral carpal tunnel syndrome arose during the course and scope of his employment with the respondent employer. Therefore, the claimant has failed to prove that his carpal tunnel syndrome was sustained during the course and scope of his employment, and regardless of any objective medical evidence which shows that the claimant suffered from carpal tunnel syndrome, the compensability of this claim should be denied.

Therefore, I respectfully dissent from the majority opinion.

___________________________________ KAREN H. McKINNEY, Commissioner