WILLBANKS v. TYSON FOODS, INC., 1997 AWCC 388

CLAIM NO. E514593

TIMOTHY WILLBANKS, EMPLOYEE, CLAIMANT v. TYSON FOODS, INC., SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 1, 1997

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

Claimant represented by DAVID H. McCORMICK, Attorney at Law, Russellville, Arkansas.

Respondent represented by EARL BUDDY CHADICK, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed January 28, 1997, finding that claimant has failed to prove entitlement to additional medical care and to a change of physician for his upper extremity complaints. Based upon our denovo review of the entire record, we find that claimant has failed to meet his burden of proof. Therefore, we affirm the decision of the Administrative Law Judge.

[3] At the hearing held on January 24, 1997, the parties stipulated that claimant sustained a gradual onset injury to his left upper extremity in March of 1994 which was accepted as a medicals only claim. The parties made no stipulation with regard to the compensability of claimant’s right upper extremity complaints. The record reveals that after claimant worked for respondent for several months, he began to complain of pain in his left upper extremity. On March 10, 1994, claimant reported his left upper extremity complaints to respondent and was eventually referred to a physician for treatment. Claimant was first seen by Dr. Gary Russell, a general practitioner. Dr. Russell diagnosed claimant with tendinitis and treated claimant conservatively. When claimant’s complaints failed to resolve after three office visits, Dr. Russell referred claimant to Dr. Robert May, an orthopedic surgeon. On May 13, 1994, claimant underwent nerve conduction studies at the Coulter Physical Therapy Clinic. In his office note, Dr. May concluded that claimant had early carpal tunnel syndrome as reflected by the conduction velocity studies for which Dr. May treated claimant conservatively.

[4] While the nerve conduction studies revealed possible carpal tunnel syndrome in both of claimant’s upper extremities, respondent at no time accepted the compensability of claimant’s right upper extremity problems as claimant was asymptomatic and never made complaints of right upper extremity pain.

[5] Claimant continued to work for respondent until the end of May, 1994, when he voluntarily terminated his employment to move to Oklahoma. The record reflects that claimant did not work between May 27, 1994 and November of 1994. In November of 1994, claimant secured employment with Well-Tech as an oil field worker in Oklahoma. Sometime in December of 1994 claimant began to experience pain in his low back after shoveling during the course and scope of his employment for Well-Tech. Claimant did not complain nor file a claim for his back difficulties at that time. In January of 1995, claimant was hammering rod wrenches when he experienced excruciating pain in his hands. Claimant described the pain to Dr. Hugh McClure as an electrical type pain shooting up his arms. Claimant was eventually diagnosed with a herniated disc in his cervical spine for which he eventually underwent surgery in May of 1996. Claimant filed a Workers’ Compensation claim in Oklahoma for his cervical and lumbar injuries for which he eventually received an award of approximately $20,000. It was not until after claimant settled his Oklahoma claim, severing claimant’s right to further medical treatment, that claimant filed this claim seeking additional medical care for his upper extremity complaints and a change of physician to a doctor in Oklahoma.

[6] First, with regard to claimant’s request for additional medical care and change of physician for his right upper extremity, we cannot find that claimant has proven entitlement to such benefits. As noted above, respondent only stipulated to the compensability of claimant’s left upper extremity. In order for claimant to be entitled to benefits for his right upper extremity complaints, claimant bears the burden of proving the compensability of his right upper extremity problems. 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. ConAgraFrozen Foods, FC Opinion filed Feb. 2, 1995 (E317744). The claimant does not contend that the injury is identifiable by time and place of occurrence. Indeed, the claimant contends that the injury is a rapid repetition motion injury. Consequently, in order to prevail on a rapid, repetitive motion claim, a claimant must prove by a preponderance of the evidence that he sustained an injury causing internal or external harm to the body which arose out of and in the course of their employment and which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(5)(A)(ii) and § 11-9-102(5)(E)(ii) (Repl. 1996). A claimant must also prove by a preponderance of the evidence that the injury was caused by rapid repetitive motion, and that the injury was the major cause of the disability or need for treatment. See Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) and §11-9-102(5)(E)(ii) (Repl. 1996). Finally, Ark. Code Ann. §11-9-102(5)(D) requires that a claimant must establish a compensable injury “by medical evidence supported by `objective findings’ as defined in § 11-9-102(16).” Ark. Code Ann. §11-9-102(5)(D) (Repl. 1996). See also Jean Carter v. AidTemporary Services, Inc., FC Opinion filed May 12, 1995 (E404813).

[7] 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. Reed v.ConAgra, supra.

[8] The record reveals that claimant’s right upper extremity was asymptomatic during the period of time that he worked for respondent. Although the nerve conduction studies performed in May of 1994 revealed very mild findings compatible with early carpal tunnel syndrome in claimant’s right upper extremity, later tests performed failed to duplicate these findings. On May 3, 1996, claimant underwent a third set of nerve conduction studies. These studies revealed normal findings. In his May 3, 1996, report, Dr. May stated:

At this point, I don’t see any evidence of carpal tunnel syndrome which I suspected strongly. I don’t see evidence of nerve damage in his arms or wrists. I cannot explain the lightening shock-like pains he is having on any other basis other than possibly circle disc which certainly would be plausible.

[9] In our opinion, not only are the objective test results equivocal, but claimant has also failed to meet the major cause requirement of proving the compensability of his right upper extremity complaints. We are faced with two competing objective test results each bearing opposite results. In our opinion, these two test results neither persuade us to find carpal tunnel syndrome by objective medical findings, nor the lack of carpal tunnel syndrome by objective medical findings. When the evidence is weighed impartially, without giving the benefit of the doubt to either party, we cannot find that the objective findings requirement for a right upper extremity injury has been met.

[10] Likewise, it is noted that claimant did not seek any medical treatment for his right upper extremity complaints until after filing his request for additional benefits and a change of physician. This was even two years after claimant ceased his employment with respondent. In the interim, claimant worked as an oil field worker where he was required to use upper body strength on a daily basis. While working as an oil field worker, claimant sustained a herniated disc in his cervical spine and even described an incident to his doctor of excruciating pain shooting in his upper arm while hammering. In our opinion, these activities which claimant participated in after ceasing his employment with respondent contributed to claimant’s right upper extremity complaints. Even Dr. May stated that claimant’s cervical disc could possibly explain claimant’s lightning shock-like pains. Accordingly, we cannot find that claimant’s work activity in March of 1994 is the major cause of claimant’s right upper extremity complaint in the spring of 1996. Consequently, we cannot find that claimant is entitled to any benefits for his right upper extremity problems.

[11] With regard to claimant’s left upper extremity, the analysis for the right upper extremity would apply but for the fact that respondent accepted the compensability of claimant’s left upper extremity gradual onset injury. However, merely because respondent accepted the compensability of claimant’s problems in March of 1994 does not mean that claimant is entitled to additional medical care and a change of physician in 1996. Claimant was diagnosed with carpal tunnel syndrome in his left upper extremity in May of 1994. Shortly after receiving this diagnosis, claimant ceased his employment with respondent. The medical evidence reflects that in December of 1995 and again in May of 1996 claimant underwent nerve conduction studies of his left upper extremity, both of which revealed normal findings. Thus, claimant’s compensable carpal tunnel syndrome no longer exists. Unlike the right upper extremity where we were only presented with two competing objective test findings, we have three objective test results for claimant’s left upper extremity. Two of these test results reveal normal findings. Therefore, we are persuaded to find that if claimant actually suffered from carpal tunnel syndrome in May of 1994, he no longer has this affliction. If he no longer suffers from this condition, we cannot find that he is in need of additional medical treatment for his previous compensable injury.

[12] Moreover, the record reveals several potential causes for claimant’s current left upper extremity complaints. Claimant herniated his cervical disc in December of 1994 or early January of 1995. After sustaining his injuries to his cervical disc, claimant complained of radiating type symptoms into both upper extremities, despite claimant’s testimony to the contrary. (We place little weight on claimant’s testimony that he continued to suffer from pain in his arms on a continuous basis after leaving his employment with respondent. Claimant’s physically demanding job in the oil fields belies such testimony.) Dr. May opined that claimant’s herniated disc is a possible explanation for claimant’s shock-like pains in his extremities. In our opinion, these intervening events operate to break the chain of causation with regard to claimant’s compensable injury and his current complaints.

[13] Given the length of time between claimant’s initial injury to his left upper extremity in March of 1994, claimant’s absence from work for respondent for over two years, and his cervical injury in between the time of claimant’s original compensable injury and his subsequent request for additional treatment together with the objective test results, we cannot find that claimant has proven by a preponderance of the evidence that his current physical condition is causally related to his original compensable injury. Therefore, we cannot find that claimant has proven entitlement to additional benefits. Since we find that claimant is not entitled to additional benefits, it logically follows that claimant has failed to prove entitlement to a change of physician since the treatment sought is not related to the compensable injury.

[14] Therefore, for those reasons set forth herein, we find that the decision of the Administrative Law Judge should be, and hereby is, affirmed.

[15] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[16] Commissioner Humphrey dissents.