CLAIM NO. E303597
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 3, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE KEITH BLACKMAN, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by the HONORABLE RICHARD A. LUSBY, Attorney at Law, Jonesboro, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER[2] The respondents appeal an opinion and order filed by the administrative law judge on August 27, 1997. In that opinion and order, the administrative law judge found that the claimant sustained a compensable aggravation of her preexisting carpal tunnel syndrome injury in late 1995. After conducting a de novo
review of the entire record, we find that the claimant failed to establish by a preponderance of the evidence objective medical findings to support her claim for a compensable aggravation to her preexisting carpal tunnel syndrome injury in 1995. Therefore, we find that the decision of the administrative law judge must be reversed. [3] Initially, we note that the parties have filed a motion to supplement the record with a videotape contained in the Commission’s file, but inadvertently not offered into the record at the administrative hearing held on July 23, 1997. After consideration of the parties’ motion and all other matters properly before the Commission, we grant the motion of the parties to supplement the record with the videotape contained in the Commission’s file. [4] The claimant became an employee of the respondent initially in the late 1970’s and early 1980’s, and was then laid off for a period of time until she went back to work for the respondent in 1991. The claimant first sought medical care for carpal tunnel problems in 1992. She was treated conservatively, and had EMG/nerve conduction studies performed pursuant to Drs. Schrantz, Jobe and Mahon. According to Dr. Mahon’s May 24, 1993, letter, the EMG/NCV studies were positive for carpal tunnel syndrome bilaterally. At that time, Dr. Mahon indicated that he felt the claimant would require carpal tunnel release surgery, but that there was no immediate need and he continued to treat the claimant conservatively until her last visit in July of 1993. [5] The claimant testified as she continued to work for the respondents she began to experience severe wrist problems in late 1995. The claimant testified regarding the jobs that she performed during this period. The claimant acknowledged that she continued to perform work for the respondent between July of 1993 and January of 1996 without any further medical care for her wrists, and she was able to handle the requirements of her job for the respondent until she began to perform different job duties in late 1995. [6] After conducting a de novo review of the entire record, we find that the greater weight of the evidence establishes that the claimant’s 1995 and 1996 complaints are in the nature of an alleged “aggravation” of the claimant’s preexisting problems as the claimant asserts, and not a alleged “recurrence” of her previously diagnosed injury as the respondents assert. In reaching that conclusion we are particularly persuaded by the evidence that the claimant continued to work for the respondent in various capacities for approximately 2+ years between the time of her last medical visit in 1993 and her first medical visit in 1996. [7] However, to the extent that the claimant asserts that she has sustained a compensable “aggravation” as a result of her job activities in 1995 and 1996, we note that the present claim is subject to the provisions of Act 796 of 1993. See, City of Foukev. Buttrum, 59 Ark. App. ___, ___ S.W.2d ___ (December 3, 1997). [8] In the present claim, the claimant does not contend that her injury was caused by a specific incident and identifiable by time and place of occurrence. Instead, she contends that she sustained an injury as a result of repetitive motion. Consequently, the requirements of Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) (Repl. 1996) are controlling, and the following must be satisfied:
[9] See Lay v. United Parcel Service, 58 Ark. App. 35, 944 S.W.2d 867(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment (see, Ark. Code Ann. § 11-9-102(5)(A)(ii) (Repl. 1996); Ark. Code Ann. § 11-9-102(5)(E)(ii) (Repl. 1996); see also, Ark. Code Ann. § 11-9-401(a)(1) (Repl. 1996));
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body (see, Ark. Code Ann. § 11-9-102(5)(A)(ii) (Repl. 1996));
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury (see, Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996));
(4) proof by a preponderance of the evidence that the injury was caused by rapid repetitive motion (see, Ark. Code Ann. § 11-9-102(5)(A) (ii)(a) (Repl. 1996));
(5) proof by a preponderance of the evidence that the injury was the major cause of the disability or need for treatment (see, Ark. Code Ann. § 11-9-102(5)(E)(ii) (Repl. 1996)).
(1997). [10] In the present case, we find that the claimant failed to establish her alleged compensable aggravation by “objective findings”. In reaching that conclusion, we note that Dr. Mahon indicated in a January 26, 1996, report that the claimant had previous EMG/NCV studies in 1993 which demonstrated severe nerve changes, and that the claimant should have current EMG/NCV studies performed prior to consideration of surgery. However, there is simply no further documentation in the record indicating that the EMG/NCV studies recommended by Dr. Mahon were ever performed on the claimant on or after January 26, 1996, to confirm her present injury. Likewise, we note that Dr. Mahon’s January 26, 1996, letter references persistent “symptomology”, including complaints of pain and “paresthesias”, as well as a clinical determination of median nerve “hypesthesia”. However, we also note that pain, paresthesias, and hypesthesia are all sensations reported by the claimant by history or during clinical examination, and we note that reports of pain, paresthesias, and hypesthesia come under the voluntary control of the claimant. Therefore, we are constrained to find that these indications in Dr. Mahon’s January 26, 1996, letter do not qualify as “objective” medical findings pursuant to the definition in Ark. Code Ann. § 11-9-102(16)(A)(i) (Repl. 1996). See Duke v. Regis Hairstylists, 55 Ark. App. 327, 935 S.W.2d 600 (1996). [11] Finally, we note that Dr. Mahon’s September 5, 1996, office note states:
[12] Obviously, the swelling observed by Dr. Mahon on September 5, 1996, qualifies as an objective finding. However, as we interpret Dr. Mahon’s notes, Dr. Mahon was observing at that time post-surgical puffiness and edema caused by the claimant’s recent surgery, and not caused by any underlying medical condition other than the surgery itself. Therefore, we do not understand this post-surgical observation as qualifying as an “objective finding” of an injury within the meaning of Ark. Code Ann. § 11-9-102(16) (Repl. 1996). [13] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to establish her alleged aggravation by objective medical findings. Therefore, we find that the decision of the administrative law judge must be reversed. [14] IT IS SO ORDERED.Her incision looks real good. She does have a lot of puffiness in her fingers and they are getting quite edematous. She does not understand that she should be moving them.
I showed her the exercises. Continue the splint. Continue sutures. We will see her back Tuesday.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[15] Commissioner Humphrey dissents. [16] CONCURRING AND DISSENTING OPINION[17] I concur with the majority’s decision to admit into evidence the videotape submitted by the parties after the hearing of July 23, 1997. [18] However, I must respectfully dissent from the majority opinion finding that claimant has failed to support her claim with objective medical evidence. [19] On September 9, 1992, claimant underwent electromyographic studies which revealed “changes of acute and chronic denervation in left abductor pollicis brevis consistent with severe carpal tunnel syndrome when taken with test 7/27/92. Mild change of chronic denervation found on the right.” Though claimant’s symptoms abated for a time until aggravated in 1996, she ultimately underwent surgery for the very condition detected in 1992. In my opinion then, the EMG results which demonstrated the presence of carpal tunnel syndrome in 1992 are sufficient to satisfy the “objective findings” requirement in this claim. [20] As set out above, I concur in part and respectfully dissent from the majority decision. [21] PAT WEST HUMPHREY, Commissioner