CLAIM NO. E215595
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 14, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by MICHAEL D. RAY, Attorney at Law, Crossett, Arkansas.
Respondent represented by MARK A. PEOPLES and JAMES GARY, Attorneys at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part; affirmed as modified in part; and reversed in part and vacated in part.
[1] OPINION AND ORDER[2] Respondent appeals from a decision of the Administrative Law Judge filed July 7, 1997. The Administrative Law Judge found that claimant has failed to prove that her psychological problems are causally related to claimant’s compensable injury. Claimant did not file a cross-appeal and therefore, this issue is not contested on appeal. Accordingly, we affirm this finding of the Administrative Law Judge. We further affirm the finding of the Administrative Law Judge that claimant’s balance disorder is causally related to her compensable injury. We affirm as modified the decision of the Administrative Law Judge finding that claimant sustained a 42% physical impairment rating to the body as a whole. As set forth below, we find that claimant has sustained a 16% physical impairment rating to the body as a whole. We reverse the decision of the Administrative Law Judge finding that claimant’s left carpal tunnel syndrome is compensable. Finally, we vacate the finding that claimant is entitled to additional temporary total disability benefits. The record reflects that temporary total disability was not an issue to be litigated at the hearing. [3] The evidence reveals that claimant sustained a compensable injury as a result of an accident at work which occurred on March 28, 1992. At the time of the accident, claimant was operating a clamp truck which was struck by a larger clamp truck. As a result of the impact, claimant was jostled and tossed around the cage of the truck. The medical records prepared by claimant’s treating physician, Dr. Barry Thompson, describe injuries to claimant’s head, cervical spine, lumbar spine, right elbow and right thumb and hand. On the date of the accident, Dr. Thompson diagnosed the claimant with contusions and a hematoma to the forehead and occipital of the skull, neck strain, and a jammed right thumb and hand. Claimant returned to Dr. Thompson’s office on March 31, 1992, with complaints of discomfort in her lower back and of nausea. Over the course of the next several weeks claimant’s complaints included tingling and numbness in her right hand with complaints of dropping things. The evidence reflects that claimant missed no time from work as a result of her work-related injury until 1993 when she was held off work for only a few short weeks. During that time, claimant was paid appropriate workers’ compensation benefits. At the hearing held on March 27, 1997, claimant contended that she was entitled to a permanent physical impairment in the amount of 44% to the body as a whole, that her bilateral carpal tunnel syndrome is a compensable consequence of her compensable injury and that she is presently suffering from fibromyalgia, osteoarthritis, bilateral Meniere’s disease, and psychological problems which she contends are all causally related to the compensable injury. Conversely, respondent contended that claimant sustained only a 6% physical impairment rating to the cervical spine which has been paid by respondent. Respondent further contended that claimant’s carpal tunnel syndrome is not causally related to the compensable injury. [4] For its first point on appeal, respondent contends that the Administrative Law Judge erred in assigning an anatomical impairment rating above 6%. Although we agree that claimant has failed to prove by a preponderance of the evidence entitlement to the 42% physical impairment rating assigned by the Administrative Law Judge, we do find that claimant has proven entitlement to a 16% physical impairment rating to the body as a whole as a result of her compensable injury. Ark. Code Ann. § 11-9-704(c)(1) (1987) requires that any determination of the extent of physical impairment must be supported by objective and measurable physical or mental findings. The record reveals that claimant did sustain an injury to both her cervical and lumbar spine as a result of the March 28, 1992, accident. Although Dr. Thompson’s records from the day of the accident do not record any findings with regard to claimant’s lumbar spine, his records from March 31, 1992, indicate that claimant sustained a soft tissue injury to her lumbar spine. Throughout his medical records, Dr. Thompson continued to document complaints of pain and discomfort in both claimant’s cervical and lumbar spine for which medication and a Tens Unit were prescribed. [5] In March of 1993 claimant underwent an independent medical evaluation at the request of respondent performed by Dr. Banks Blackwell. During that examination, claimant’s chief complaint was that of “burning sensation in right arm, shoulder, and neck.” Dr. Blackwell noted:
[6] Dr. Blackwell concluded that there is no indication for surgical treatment and no justification for a permanent impairment rating. [7] In January of 1994, claimant underwent a second independent medical evaluation performed by Dr. Lowery Barnes. It is noted that Dr. Barnes was specifically asked to evaluate claimant’s neck strain, contusion to her right elbow, and jammed right thumb. Again, claimant’s chief complaint involved her right hand. Dr. Barnes described his findings as follows:Clinical examination finds a well nourished/well developed 47 year old female who moves about the office in slow motion. She has no tenderness to palpitation of the cervical, thoracic, or lumbar spine. There is no erector spinae spasm. Deep tendon reflexes are normal and active. She is full weight bearing without external support. She is able to get on and off the exam table without help. Again it is noted she moves very slowly. She has limitation of neck motion only at the extremes. She has 90% of normal motion of the neck on tilt and rotation.
[8] Dr. Barnes concluded that claimant sustained a soft tissue injury of her cervical spine for which he assigned a 6% whole person impairment. [9] In correspondence to claimant’s attorney, claimant’s primary care physician, Dr. Barry Thompson stated:On examination today, she has deep tendon reflexes which are two plus and symmetric in both upper and lower extremities. Her motor is 5/5 throughout, with the exception of some weakness in wrist extension and in grip in the right hand. This weakness is secondary to pain at the elbow. Her sensory examination is intact throughout the upper and lower extremities. Provocative testing of the cervical spine does not produce radicular symptoms. She was able to rotate her chin to her left shoulder, as well as to the right shoulder. She has good lateral bend to each side, coming very close to touching her ear to her shoulder. She is able to touch her chin to her chest and has good extension of the cervical spine as well. There is no palpable muscle spasm in the paracervical region.
She has full passive range of motion of her shoulder. Her right elbow is tender over the lateral epicondyle and this is the area of pain with resisted extension. The remainder of her elbow exam is normal.
Her thumb examination shows full range of motion at all joints. She has no swelling or tenderness over any of her joints. She is complaining of pain in the thenar emenisus region. She describes as being a deep pain.
[10] After examining the record as a whole, without giving the benefit of the doubt to either party, we find that claimant has proven that she sustained a physical impairment rating supported by objective and measurable findings in association with her cervical and lumbar injuries. As explained by Dr. Thompson in his deposition, he assigned claimant a 7% impairment to the cervical spine and a 5% impairment to the lumbar spine. Dr. Thompson arrived at these ratings using the AMA Guides to the Evaluation ofPermanent Impairment, Third Edition Revised. The medical records clearly indicate that claimant sustained an injury to both her cervical and lumbar area and thus we find claimant has proven by a preponderance of the evidence entitlement to the physical impairment rating associated with the cervical and lumbar spine as assigned by Dr. Thompson. We note that Dr. Thompson assigned claimant a physical impairment rating for claimant’s thoracic spine, however, there is no evidence in the medical records that claimant ever sustained an injury to this area of her body as a result of March 28, 1992, accident. Therefore, we reverse any finding of an impairment rating associated to this area of the body. Accordingly, when the 7% cervical impairment rating and 5% lumbar impairment rating are combined the evidence reflects that claimant sustained a 12% physical impairment rating to the body as a whole as a result of her spinal injury. [11] We find that claimant has sustained a 5% impairment rating to the body as a whole as a result of her balance disorder for which she has received treatment from Dr. Gale Gardner. Claimant initially came under the care of Dr. Gardner upon referral from Dr. Thomas Fields. Dr. Fields began treating claimant in October of 1994 for an imbalance sensation. It was originally thought that claimant may be suffering Meniere’s disease and Dr. Fields referred claimant to Dr. Gale Gardner who specializes in neuro-otology for evaluation and treatment. Dr. Gardner initially found claimant’s symptoms to be consistent with bilateral Meniere’s disease of uncertain etiology. After further evaluation and treatment, Dr. Gardner concluded that claimant suffered from a balance disorder of post-traumatic origin. In his November 5, 1996, correspondence to claimant’s attorney, Dr. Gardner diagnosed claimant with balance disorder, post-traumatic and head injury with otologic symptoms. Based on claimant’s history and post-urography findings, Dr. Gardner assigned claimant a 5% physical impairment rating finding claimant to be Class II for disturbances of vestibular function. Consequently, we find that claimant has proven by a preponderance of the evidence that the 5% impairment rating assigned by Dr. Gardner is related to her compensable injury and supported by objective and measurable findings. [12] When the 5% impairment rating assigned by Dr. Gardner is combined with the 12% impairment rating derived from Dr. Thompson’s evaluation, we find that with implementing the combined values chart with the AMA Guides to the Evaluation of PermanentImpairment, Third Edition Revised, claimant has sustained a 16% impairment rating to the body as a whole for which respondent is responsible. [13] We note in its brief respondent argues that claimant’s Meniere’s disease and 5% impairment rating associated with claimant’s balance disorder is not compensable. In making this argument, respondent relies upon Dr. Gardner’s initial assessment in October of 1995 wherein he stated that claimant’s diagnosis was consistent with bilateral Meniere’s disease of uncertain etiology. However, subsequent to that initial diagnosis, Dr. Gardner’s medical records all indicate that claimant suffers from a balance disorder of post-traumatic origin with the trauma being claimant’s compensable incident in March of 1992. Consequently, we are not persuaded by respondent’s argument as Dr. Gardner apparently reconsidered and revised his diagnosis after further evaluation and treatment of claimant. Therefore, we find that claimant has proven by a preponderance of the evidence that her balance disorder diagnosed by Dr. Gardner to be post-traumatic in origin is causally related to her compensable injury. [14] With regard to the compensability of claimant’s carpal tunnel syndrome, the record reflects that claimant sustained a direct trauma to her right hand during the accident. Claimant was later diagnosed with bilateral carpal tunnel syndrome by Dr. Lowery Barnes. In April of 1994, claimant came under the care of Dr. Harold Chakales, who likewise concluded that claimant’s right upper extremity findings were related to carpal tunnel syndrome and not a cervical disc. EMG studies confirmed this diagnosis. On May 31, 1994, claimant underwent carpal tunnel release surgery on the left and on July 28, 1995, carpal tunnel release surgery on the right. The surgeries were deemed successful. It is our finding after a thorough review of the medical records that claimant’s carpal tunnel syndrome on the right is compensable. Claimant presented with symptoms consistent with carpal tunnel syndrome on her right within weeks of the March 28, 1992, accident. By May of 1992 the symptoms had increased to the point where claimant was dropping things with her right hand and in July of 1992 claimant’s symptoms increased to complaints of numbness and tingling in her right upper extremity. These symptoms remained constant until claimant underwent carpal tunnel release surgery in July of 1994. Consequently, given the temporal relationship of the onset of claimant’s right upper extremity symptoms with the accident, we find that claimant has proven by a preponderance of the evidence that her right side carpal tunnel syndrome is compensable. The evidence clearly reveals that claimant sustained a significant injury to her right hand during the accident. Claimant had her right hand on the steering wheel when her clamp truck was struck by a much larger clamp truck. As a result of that impact, claimant sustained bruises about her right hand and her right thumb was jammed. However, there is no evidence that claimant sustained any type of trauma to her left hand or left upper extremity as a result of the March 28, 1992, accident. Consequently, we find that claimant has proven by a preponderance of the evidence a causal relationship between her right side carpal tunnel syndrome and the impact to her hand during the accident. However, we find that claimant has failed to prove by a preponderance of the evidence that her carpal tunnel syndrome on her left upper extremity is related in any way to her compensable injury. The medical records simply fail to support any causal connection between the accident and claimant’s left carpal tunnel syndrome. There is no evidence that claimant’s left hand or wrist were injured in any way. Nor are we persuaded to find that claimant’s left side carpal tunnel syndrome was caused by claimant’s alleged repetitive work activities. There was no evidence presented that claimant actually used her left upper extremity in changing glass or other repetitive tasks. To reach such a finding on the record before us would require impermissible speculation. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v.Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas MethodistHospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). Therefore, we reverse the decision of the Administrative Law Judge finding claimant’s left carpal tunnel syndrome compensable. [15] Although claimant has proven the compensability of her right side carpal tunnel syndrome, we find that claimant has failed to prove by a preponderance of the evidence entitlement to a physical impairment rating for her upper extremity as assigned by Dr. Thompson. Dr. Thompson’s deposition reveals that he assigned claimant an 18% physical impairment rating for claimant’s right upper extremity based solely upon claimant’s loss of strength in that extremity. However, Dr. Thompson failed to document any current loss of strength findings. A review of Dr. Thompson’s medical records reveal that he did test claimant’s strength in her right upper extremity in 1992 and 1993. However, there is no evidence in the record of any strength testing performed on claimant after claimant underwent her right carpal tunnel release in July of 1994. In fact, the evidence reveals that after undergoing carpal tunnel release surgery claimant “had good grip in flexion and extension with good power in both hands.” (See Dr. Chakales’ April 25, 1996, correspondence.) In addition, the reports from Dr. Michael Moore who performed an independent medical evaluation found there was no evidence of persistent, or recurrent, carpal tunnel syndrome. Based upon objective and measurable findings, Dr. Moore stated that claimant “would not have significant impairment of either or right or left hand.” Consequently, since there are no objective and measurable findings documented in the record of any permanent physical impairment of claimant’s right upper extremity after she underwent carpal tunnel release surgery, we find that claimant has failed to prove by a preponderance of the evidence entitlement to a physical impairment rating associated with her carpal tunnel syndrome. [16] Finally, we find that the decision of the Administrative Law Judge finding that claimant has proven entitlement to temporary total disability benefits commencing on May 31, 1994 should be vacated. [17] The pre-hearing order reflects that the only issues to be litigated at the March 27, 1997, hearing were the extent of claimant’s permanent physical impairment and carpal tunnel syndrome. When claimant contended entitlement to temporary total disability benefits, respondent objected on the grounds that it was not an issue to be litigated. Respondent made it clear that it was not prepared to litigate the issue of temporary total disability benefits. In light of the Pre-hearing Order, we find that temporary total disability was not an issue scheduled to be litigated at the hearing. Therefore, we find that the award of temporary total disability benefits should be vacated and set aside. [18] Accordingly, for those reasons stated herein, we affirm the decision of the Administrative Law Judge in part, affirm as modified in part, reverse in part and vacate in part. [19] IT IS SO ORDERED.It is my opinion based on my examination of Betty Wisecarver and having treated her since her injury in 1992 that as a result of her motor vehicle accident on March 28, 1992, she has ongoing problems with myofacial neck strain, myofacial low back strain, carpal tunnel syndrome requiring surgery in the right hand and has continuing weakness in the right hand which has been clearly demonstrated since the time of the accident.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[20] Commissioner Humphrey dissents. [21] CONCURRING DISSENTING OPINION[22] The majority opinion correctly points out that claimant has not cross-appealed the Administrative Law Judge’s findings regarding a denial of compensation for psychiatric treatment and counseling subsequent to February, 1993, and I can accordingly concur with the affirmance of this aspect of the Administrative Law Judge’s opinion. I also agree that the Administrative Law Judge’s finding that claimant’s “balance disorder” is causally related to her compensable injury should be affirmed. However, I cannot agree that only claimant’s right-side carpal tunnel syndrome is compensable, or that her impairment rating should be limited to 16%. Finally, though it is true that the pre-hearing order does not list temporary total disability as an issue to be litigated, I cannot agree that there is sufficient cause to vacate the Administrative Law Judge’s award of such benefits in this instance. I must therefore concur in part and respectfully dissent in part from the majority opinion. [23] It is true that claimant’s left arm and hand were not involved in her compensable injury of March 28, 1992 — at least not to the extent that her right arm and hand were affected (claimant testified that she maintained a “death grip” on the steering wheel with her right extremity during her accident). Indeed, claimant indicated during the hearing that she drove with her left arm “over the seat looking backwards,” and her left arm appears to have emerged relatively unscathed from the accident itself. However, claimant described her regular work activities as requiring movements of the hands and fingers “hundreds of times a day . . . You were grasping and moving controls on your truck levers up and down, sideways, forward, backwards. Everything was done with your hands and finger movements.” Claimant further agreed that such use of her fingers and hands in a grasping manner was “constant” during her work as a fork truck driver. A March 24, 1997, letter from Dr. Michael Moore also notes that “her wrists were placed in extension when she performed this work.” [24] When claimant initially returned to light-duty, she stated that she was “driving a fork truck a little, but on a sweeper, you know; I wasn’t on a — I didn’t do a lot of grasping, twisting, turning, hand movements, because I wasn’t able.” Claimant also acknowledged that she performed “hand-related tasks” in light-duty lab work. In my opinion, claimant’s left-side carpal tunnel syndrome can be fairly and logically attributed to her hand-intensive, wrist-extended work as a fork truck driver — work to which she returned briefly even when on light-duty. Because this is a pre-Act 796 claim, claimant need not demonstrate that such activities amounted to “rapid repetitive motion” or show that a work-related injury was the “major cause” of her resulting disability. I would thus find that claimant has made a sufficient showing of hand-intensive work which is responsible for her left-side CTS complaints, and would affirm the Administrative Law Judge’s finding that claimant’s bilateral CTS is compensable (I agree with the majority that claimant’s right-side CTS is attributable to her actual injury of March 28, 1992). [25] With regard to the extent of claimant’s permanent impairment, I would modify the Administrative Law Judge’s original award of 42% because it fails to take into consideration the fact that much of claimant’s whole body rating is actually derived from scheduled injuries. [26] In my opinion, Dr. Barry Thompson is in the best position to evaluate the extent of claimant’s permanent physical impairment. Not only is Dr. Thompson claimant’s family physician, but he has managed the care of her compensable injury from the date of its occurrence through the end of 1995. Equally compelling is the fact that Dr. Thompson described himself during his deposition as “a specialist in impairment evaluations.” To buttress this assertion, Dr. Thompson pointed out that he has “taken a lot of extra training and become a Fellow in the American Academy of Disability Evaluating Physicians.” For these reasons, I would assign considerable weight to Dr. Thompson’s opinions regarding the extent of claimant’s impairment. [27] Initially, on August 24, 1993, Dr. Thompson issued a 25% impairment rating to the whole body, “made up of a range of motion impairment plus weakness, chronic pain, and reactive depression impairment ratings . . .” Dr. Thompson also mentioned his reliance on the A.M.A.’s Guides, and explained during his deposition that this rating also took into account the weakness in claimant’s right hand. In his deposition of September 19, 1996, Dr. Thompson testified that claimant’s impairment should be 44% to the whole person, predicated in part on his understanding that “she subsequently had the carpal tunnel problems and the release in the right hand.” Dr. Thompson broke down his rating as follows:
[28] After applying the combined values chart, Dr. Thompson arrived at a 44% whole body impairment, and the Administrative Law Judge awarded most (42%) of that rating. I would modify this award to account for the improper inclusion of a scheduled injury and assign a 30% impairment to claimant’s right upper extremity and a total 34% whole body impairment broken down as follows: 19% for claimant’s total spinal impairment; 15% for claimant’s depression-related impairment, and 5% as assigned by Dr. Gale Gardner on November 5, 1996, for claimant’s balance disorder (garnered from the combined values chart of the Guides). [29] When asked to identify the objective findings on which his original 25% rating was based, Dr. Thompson referred to “muscle wasting, the restrictive motion, the testing that I did using the computerized inclinometer, the hand strength testing.” I am persuaded that the same findings are applicable for purposes of the rating I have suggested above. Also, given the violent nature of claimant’s accident, e.g., being thrown about the metal cage of vehicle, I would not exclude the ratings for her thoracic spine merely because her medical records may not speak of a specific injury therein. I cannot imagine that the mid-portion of claimant’s spine would be entirely unaffected by such an event when her cervical and lumbar regions have been impaired to the extent they have. [30] Finally, the Administrative Law Judge awarded temporary total disability benefits “through the end of her healing period as a result of her bilateral carpal tunnel syndrome surgical procedure.” While I would normally prefer (as would the majority) that only those issues presented to an Administrative Law Judge be passed upon after a hearing, I think it unlikely that respondents could have been unfairly prejudiced by the Administrative Law Judge’s consideration of temporary total disability in this case. After all, claimant did undergo surgery to her hands, and it is hardly surprising that a period of total disability would be associated with those procedures. Accordingly, I cannot find sufficient cause to vacate the Administrative Law Judge’s award as it relates to temporary total disability. [31] As set out above, I concur in part and respectfully dissent in part from the majority opinion. [32] PAT WEST HUMPHREY, Commissioner30% upper extremity impairment translated to an 18% whole person impairment;
spinal whole person impairments of 4% (cervical), 2% (thoracic), and 5% (lumbar);
additional spinal whole person range-of-motion impairments of 3% (cervical) 3% (thoracic), and 2% (lumbar); and 15% for problems relation to depression.