CLAIM NO. E901847
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 5, 2000.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILIP M. WILSON, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE WALTER MURRAY, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Affirmed.
OPINION AND ORDER
The respondents appeal to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed November 15, 1999. The administrative law judge found that the claimant has proven by a preponderance of the evidence that she sustained a compensable injury to her right wrist in the form of carpal tunnel syndrome, for which she is entitled to medical treatment. The administrative law judge found that the respondents have failed to prove by a preponderance of the evidence that the claimant’s present claim for her carpal tunnel syndrome injury is barred by the statute of limitations. After de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge.
I. HISTORY
Gloria Woods, age 54, began working as a bookkeeper for the respondent- employer in approximately 1985. Ms. Woods began having problems with her left upper extremity in about 1994, for which she sought medical treatment in 1995. She was admitted to Doctors Hospital on January 23, 1995, at which time Dr. Thomas Fletcher reported:
Ms. Woods is a 49-year-old female who was admitted to outpatient status for surgery for decompression of the median nerve in the carpal tunnel on the left side. Ms. Woods has been having both pain and paresthesias in the left hand for about two years and this primarily involves numbness in the first three fingers and then ar part of the hand in the median distribution. She has the sensation of swelling of the findings. There has been some of this on the right, but it is much worse on the left. It has reached the point where it is constant. At work, she works as a bookkeeper and works with heavy duty ledgers. She has done this for about 19 years. She has weakness of hand grip on the left. . . .
IMPRESSION: Median compression neuritis due to carpal tunnel syndrome, bilateral, but worse on left side.
Ms. Woods was treated exclusively on her left side, where she underwent surgery by Dr. Fletcher. “I didn’t go with a problem for my right hand, I went for the pain in my left arm and shoulder,” she testified. Ms. Woods did not claim entitlement to worker’s compensation at that time.
Ms. Woods described the use of her hands at work:
A. Well, I’m right-handed, so before the most recent computer I’ve got, I had to do a lot of hand-scheduling, which puts a tremendous amount of pressure on your nerve at the base of your thumb. And with your right hand, anything you’re doing with your right hand, you have a document or something in your right hand, an invoice or something that you are working with, you know, that you are looking at it to put the numbers into your calculator, your computer, whatever. ***
Q. . . .do you use both your hands?
A. Yes, I do.
Q. On a daily basis?
A. Yes, I do.
Q. Deal with paper, adding machines, or calculators, I guess? Well, that’s better than an adding machine. That’s what I use.
A. Yes.
Q. And computer; is that correct?
A. That’s correct.
Ms. Woods stated that she did not participate in any nonwork-related hand-intensive activities.
Ms. Woods testified that she eventually began having problems with her right hand. Dr. S. Michael Jones, a rheumatologist, consulted with her on July 10, 1997 for the chief complaint of “Generalized musculoskeletal discomfort most prominent in the left hip and back.” Dr. Jones’ history included the following:
Additionally, she complains of right sided elbow discomfort which is dull and episodic, clearly worse with use, no true warmth, redness, swelling consistent with synovitis and minimal sleep disturbance. Likewise, she describes some discomfort involving her right hand. She describes it as primarily numbness involving her first three digits. She believes that this is similar to the complaints of carpal tunnel syndrome that she has had on the left and has been surgically. (Sic) No true warmth, redness, swelling consistent with synovitis of may (sic) individual structure in her hand and there is no interference with the ability to use her hand. . . .
Dr. Jones’ musculoskeletal examination indicated no abnormalities in the elbows, wrists, or hands. However, his impression/problem list included “Right sided subdeltoid bursitis and epicondylitis, mildly active”, and “Right sided carpal tunnel syndrome, fairly active.” Dr. Jones’ treatment plan included continued use of a wrist splint “that she already has for her right sided carpal tunnel complaints.”
Dr. Jones again saw the claimant on August 18, 1997 and October 20, 1997 for “Generalized musculoskeletal pain most problematic in hip and back.” Dr. Jones’ impression on both dates included “Right sided carpal tunnel syndrome, somewhat active.” Dr. Jones reported “mildly active” right carpal tunnel syndrome on January 19, 1998. His impression on June 2, 1998 was “Right sided carpal tunnel syndrome, active on the right.” On that date, Dr. Jones injected medication into Ms. Woods’ right carpal tunnel for symptomatic relief.
Ms. Woods testified that her right-hand symptoms “started getting bad” in 1998. She reported a work-related injury to Alice Elms of Risk Management Resources on or about September 3, 1998, and the respondents began providing medical treatment. The employee missed no work time because of her symptoms. Ms. Woods treated with Dr. Fletcher, a neurological surgeon, who wrote on October 8, 1998:
I think she has a well defined carpal tunnel syndrome on the right and this is definite enough that nerve conduction studies are not necessary. I would recommend decompression of the median nerve on the right wrist as she has previously had done on the left.
Dr. Michael M. Moore, a hand surgeon, provided a second opinion for the respondents on October 19, 1998:
Ms. Woods is a 52-year-old right hand dominant female who has worked as a bookkeeper for approximately twenty years. During the past two years, Ms. Woods has noted numbness in the fingers of her right hand. The numbness is associated with mild pain over the volar aspect of the hand and wrist. Ms. Woods’ past medical history is pertinent for a left carpal tunnel release which was performed in 1995. She reports the symptoms in her right hand have become more severe. She will awaken at night with numbness in her fingers. . . .
It is my opinion Ms. Woods’ clinical history and physical examination are consistent with a right carpal tunnel syndrome. If she were my patient, it would be my recommendation that she undergo a NCV/EMG study of her right hand.
If this study was consistent with a right carpal tunnel syndrome she would be a candidate for treatment. The treatment could include injection and splinting or carpal tunnel surgery.
I cannot definitively state that Ms. Woods’ work as a bookkeeper would be a primary cause of carpal tunnel syndrome. I am not aware of any current scientific or medical literature which could help to determine if work as a bookkeeper would be a primary cause of carpal tunnel syndrome. Ms. Woods reports her work requires her to use a computer and calculator. If she performs typing activities several hours a day, it is my opinion this work activity could aggravate her symptoms.
Dr. David A. Miles performed an electrodiagnostic examination of Ms. Woods on December 3, 1998, and gave the following impression:
1. Nerve conduction studies of the right median nerve are indicative of a moderately severe carpal tunnel syndrome at the wrist on the right. Both motor and sensory latencies are delayed. The velocities are normal.
2. Normal nerve conduction studies of the right ulnar nerve, both motor and sensory. There is no evidence of generalized neuropathy.
3. Normal electromyographic studies of the muscles examined. There is no evidence for nerve root irritation.
CONCLUSION: The electrodiagnostic studies do document and demonstrate a moderately severe carpal tunnel syndrome at the wrist on the right.
There is no evidence of generalized neuropathy. There is no evidence of nerve root irritation on the right side in the cervical region.
Dr. Moore corresponded with Misty Thompson, an adjuster with Risk Management Resources, on January 4, 1999:
I cannot definitively state that Ms. Woods’s work as a bookkeeper would be a primary cause of carpal tunnel syndrome. She had worked as a bookkeeper for approximately ten years prior to experiencing symptoms. If carpal tunnel syndrome was solely related to her work as a bookkeeper, I would have expected her to experience symptoms at an earlier date. In addition, I am not aware of any current scientific, or medical, literature which could help to determine if work as a bookkeeper would be a primary cause of carpal tunnel syndrome. As I have previously stated, if Ms. Woods does perform typing or working on the computer several hours per day, it is my opinion this work activity could exacerbate her symptoms.
Misty Thompson testified that Ms. Woods told her in January, 1999 that she had been having right-hand problems “for several years.” Ms. Thompson wrote to the claimant on January 29, 1999:
This is to inform you that we are denying any further treatment on the above captioned claim.
After complete review of your file, it is our opinion that your employment with Tony Bull Motor Company is not the major cause of your Carpal Tunnel Syndrome. Furthermore, we have received documentation that you were treated for Right Carpal Tunnel Syndrome by Dr. Thomas Fletcher in 1995 and by Dr. Michael Jones in 1997. However, you did not report this injury to your employer until September 1998.
In a letter to the claimant’s attorney on April 5, 1999, Dr. Fletcher stated, “it is my opinion that the major cause of Mrs. Woods’ right hand carpal tunnel syndrome was caused by her work related activities.”
Ms. Woods claimed entitlement to worker’s compensation. A prehearing conference was held before the Commission on June 7, 1999, and a prehearing order was filed June 8, 1999. The claimant contended that she sustained “a continuous use injury to her wrist for which she is entitled to medical benefits.” The respondents controverted the claim, and asserted a “statute of limitations defense.”
After a hearing before the Commission, the administrative law judge filed an opinion on November 15, 1999. The administrative law judge cited Joyce A. Ham v. Alumacraft Boat Co., Full Workers’ Compensation Commission, Dec. 17, 1998 (E708498), and found that “the statute of limitations does not commence to run until the true extent of the injury manifests and causes an incapacitation to earn wages which persists long enough to entitle claimant to benefits under A.C.A. § 11-9-501.” The administrative law judge therefore found that the respondents “failed to introduce sufficient evidence to show that the statute of limitations has begun running. Claimant testified that she did not miss any work as a result of her right-sided carpal tunnel syndrome, and respondent has failed to introduce any evidence to contradict this fact. Furthermore, there is no evidence of a statutorily presumed disability. Therefore, I find that the statute of limitations has not commenced to run in the present claim.”
Regarding the merits of the claim, the administrative law judge determined that the claimant’s diagnosed carpal tunnel syndrome injury arose out of or within the scope of her employment. Dr. Fletcher opined that the major cause of the claimant’s condition was her work for the respondents. Dr. Moore stated that if Ms. Woods typed or worked on a computer several hours daily, “it is my opinion this work activity could exacerbate her symptoms.” The administrative law judge found “that claimant has proven by preponderance of the evidence that her hand-intensive activities resulted in carpal tunnel syndrome which arose out of and in the course of her employment. I further find that claimant has established that her work-related injury is the major cause of her disability or need for treatment. The record is void of any other possible cause. Finally, it is noted that claimant’s right-sided carpal tunnel syndrome was established by objective medical evidence in the nerve conduction studies performed by Dr. David Miles on December 3, 1998. Accordingly, I find that claimant has established all the necessary elements of a compensable carpal tunnel injury by a preponderance of the evidence.”
The administrative law judge awarded the claimant reasonable and necessary medical treatment for her compensable injury, in addition to attorney’s fees. Respondents appeal to the Full Commission.
II. ADJUDICATION
A. Compensability of Carpal Tunnel Syndrome
Ms. Woods claims that she is entitled to compensation for a gradual-onset injury. To sustain her claim, the employee is not required to prove that her carpal tunnel syndrome was caused by rapid and repetitive motion, but she must prove by a preponderance of the evidence that:
(1) the injury arose out of and in the course of her employment;
(2) the injury caused internal or external physical harm to the body that required medical services or resulted in disability or death; and
(3) the injury was a major cause of the disability or need for treatment.
Ark. Code Ann. § 11-9-102(4)(A)(ii) (E)(ii) (Supp. 1999); Crudup v.Regal Ware, Inc., 341 Ark. ___, ___ S.W.3d ___ (2000). In addition, a compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Supp. 1999);Kildow v. Baldwin Piano Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).
The Full Commission affirms the administrative law judge’s finding that the claimant sustained a compensable injury to her right wrist in the form of carpal tunnel syndrome, for which she is entitled to reasonable, necessary, and related medical treatment. Ms. Woods, who is right handed, has kept books for the respondent-employer since at least 1985. She credibly described her work activity as hand-intensive in the use of office machinery. “I had to do a lot of hand-scheduling, which puts a tremendous amount of pressure on your nerve at the base of your thumb.” Ms. Woods presented to Dr. Jones on July 10, 1997 for generalized musculoskeletal discomfort, but she was also experiencing discomfort in her right elbow and hand. The claimant told Dr. Jones that her right-side symptoms were similar to her problems on the left, for which she underwent surgery in 1995. The impression of Dr. Jones, a rheumatologist, was “Right sided subdeltoid bursitis and epidondylitis, fairly active”, and “Right sided carpal tunnel syndrome, fairly active.”
Dr. Jones treated the claimant on two additional occasions in 1997 for “generalized musculoskeletal discomfort”, which included treatment related to Ms. Woods’ right upper extremity. The claimant testified that her right-hand symptoms “started getting bad” in 1998; Dr. Jones administered an injection into the claimant’s right carpal tunnel on June 2, 1998. The respondents initially accepted responsibility for medical treatment related to the claimant’s symptoms, after she formally reported the injury on September 3, 1998.
Dr. Fletcher, the claimant’s treating neurological surgeon, diagnosed “carpal tunnel syndrome on the right” on October 8, 1998. Because Dr. Fletcher recommended surgery, however, the respondents sought a second opinion from Dr. Michael Moore. Dr. Moore agreed that the claimant suffered from carpal tunnel syndrome, but he could not “definitively state that Ms. Woods’ work as a bookkeeper would be a primary cause of carpal tunnel syndrome.” Dr. Moore conceded that Ms. Woods’ work for the respondents “could aggravate her symptoms.” Meanwhile, objective electrodiagnostic studies taken in December, 1998 demonstrated “moderately severe carpal tunnel syndrome on the right.”
After Dr. Moore repeated his opinion to an adjuster that he could not “definitively” state that Ms. Woods’ work was “a primary cause of carpal tunnel syndrome”, the respondents denied any further medical treatment on January 29, 1999. Nevertheless, the claimant’s treating neurological surgeon opined in April, 1999 that “the major cause of Mrs. Woods’ right hand carpal tunnel syndrome was caused by her work related activities.” From the record before us, the Full Commission finds that the claimant’s objectively-established right carpal tunnel syndrome arose out of and in the course of her employment, caused physical harm to her body, and was a major cause of her disability and need for treatment to her right wrist. The decision of the administrative law judge is affirmed.
B. Statute of Limitations
The employee sustained an injury after July 1, 1993, thus bringing her claim within the provisions of Arkansas Workers’ Compensation Law as amended by Act 796 of 1993. Ms. Woods’ right carpal tunnel syndrome, which the Commission has determined to be compensable, is a scheduled injury to the wrist. Ark. Code Ann. § 11-9-521(Supp. 1999);Williams v. Drew County Road Department, Full Workers’ Compensation Commission, May 29, 1998 (E406727). Citing Joyce A. Ham v. AlumacraftBoat Co., Full Workers’ Compensation Commission, Dec. 17, 1998 (E708498), the administrative law judge correctly determined that Act 796 did not amend the statute of limitations for gradual onset injuries. The administrative law judge erred, however, in finding that the statute of limitations does not commence to run until the true extent of the injury manifests and causes an incapacitation to earn wages which persists long enough to entitle the claimant to benefits under Ark. Code Ann. §11-9-501. The Arkansas Supreme Court has held that incapacity to earn wages is presumed for scheduled injuries. See, Minnesota Mining andManufacturing v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). Therefore, the Full Commission finds that the administrative judge erred as a matter of law in analyzing the respondents’ statute of limitations defense from the standpoint that Ms. Woods never missed time from work due to her compensable carpal tunnel syndrome injury.
Ark. Code Ann. § 11-9-702(b)(1) (Supp. 1999) provides that in all cases where any compensation, including disability or medical, has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one (1) year from the date of the last payment of compensation, or two (2) years from the date of the injury, whichever is greater. As we interpret Baker, supra, the statute of limitations commences running when the injury develops or becomes apparent to the employee.
In the present matter, we find that a preponderance of the credible evidence in the record establishes that the claimant’s current right side carpal tunnel injury became apparent to her no earlier than July 10, 1997, when Dr. S. Michael Jones reported numbness in the claimant’s right hand. Ms. Woods testified that her carpal tunnel symptoms worsened in 1998, and it is undisputed that she reported the injury to the respondents on September 3, 1998. The respondents provided medical treatment through January 29, 1999. As we calculate the provisions of Ark. Code Ann. § 11-9-702(b)(1), Ms. Woods’ claim for worker’s compensation would be barred unless filed by the later of July 10, 1999, two years from the date that the injury became apparent to her, or January 29, 2000, one year from the last payment of medical treatment. The parties have failed to stipulate when the claimant filed her claim, or to present evidence as to exactly when the claimant filed her claim. However, the record indicates that the claimant filed her claim no later than June, 1999, well within either statutory time period. Therefore, the respondents’ statute of limitations defense must fail.
The dissent assert that the claimant’s injury “became apparent” to her in 1995. It is true that the claimant’s 1995 medical records indicate that the claimant may have experienced some symptoms of carpal tunnel syndrome in her right upper extremity in 1995. However, the medical record and the claimant’s testimony show that Dr. Fletcher treated her in 1995 for “decompression of the median nerve in the carpal tunnel on the left side.” The claimant had felt constant numbness, swelling, and weakness on the left for two years. In 1995, Dr. Fletcher indicated that “There has been some of this on the_right, but it is much worse on the left,”. The treating physician’s impression was “Median compression neuritis due to carpal tunnel syndrome, bilateral, but worse on left side.” The claimant underwent a carpal tunnel release on the left.
As regards her right wrist, however, the claimant’s credible testimony indicates that, if she had any right side symptoms in 1995, those 1995 right side symptoms resolved without medical treatment. Likewise, the record shows no treatment for the claimant’s right hand until July 10, 1997, and the claimant credibly testified that she sought medical treatment in 1995 exclusively for her left upper extremity. Under these circumstances, we find that the preponderance of evidence indicates that Ms. Woods’ current right carpal tunnel injury “became apparent” to her no earlier than July 10, 1997, and not in 1995 as the respondents assert. Because we find that the preponderance of the evidence establishes that the claimant’s current injury developed beginning in 1997, and not in 1995, we need not reach the issue as to whether the statute of limitations would have barred her claim if the preponderance of the evidence had indicated that the claimant’s right wrist had in fact remained symptomatic, but without any medical treatment, throughout the period from 1995 to 1997.
Based on our de novo review of the entire record, the Full Commission finds that the claimant proved by a preponderance of the evidence that she sustained a compensable injury to her right wrist in the form of carpal tunnel syndrome. We direct the respondents to provide all reasonable and necessary medical treatment that is related to the compensable injury. The Full Commission finds that the respondents failed to prove by a preponderance of the evidence that the statute of limitations bars the claim for worker’s compensation. We therefore affirm the opinion of the administrative law judge.
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 administrative law judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).
For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
________________________________ ELDON F. COFFMAN, Chairman
Commissioner Humphrey concurs.
CONCURRING OPINION
I concur with the principle opinion’s findings that claimant sustained a compensable injury and that this claim is not barred by the statute of limitations. I disagree with the dissent’s assertion that the statute begins to run in this case when claimant “began having problems with her right wrist. . . .”
In Minnesota Mining Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151
(1999), the Arkansas Supreme Court noted that Arkansas is technically a “compensable injury” state and found that a scheduled injury does not become compensable until (1) the injury develops or becomes apparent, and (2) the claimant suffers a loss in earnings on account of the injury, which loss is conclusively presumed. Therefore, the statute of limitations with respect to scheduled injuries begins to run when the injury develops or becomes apparent to claimant because the loss of wage earning capacity is conclusively presumed.
Additionally, the Court stated that claimant became aware of his hearing loss in February 1978 and the statute began to run in February 1978 “because his hearing did not continue to deteriorate.” This seems to indicate that the statute does not begin to run until claimant becomes aware of his injury and the injury has stabilized or does “not continued to deteriorate.”
In trying to determine the meaning of the words “develop” and “apparent,” I looked to Black’s Law Dictionary and The American HeritageDictionary.
Apparent is defined as readily seen; open to view; visible; readily understood or perceived; plain or obvious.
Develop is defined as to realize the potentialities of; to bring into being; make active; to come to have gradually; acquire; to grow or expand; to come gradually into existence or activity; to be disclosed.
Manifest is defined as clearly apparent to the sight or understanding; obvious; to show or demonstrate plainly; reveal.
Patent is defined as open; manifest; evident; unsealed; obvious; plain.
Latent is defined as hidden; concealed; dormant; that which does not appear upon the face of a thing; present or potential but not evident or active. The American Heritage Dictionary contains the statement that “[t]hese adjectives describe what is existent or capable of existence but is not manifesting itself.”
I am aware that Ark. Code Ann. § 11-9-702(g)(1) (Repl. 1996) states that “[a] latent injury or condition shall not delay or toll the limitation periods specified in this section.” Even though I question the constitutionality of Section 702(g)(l), that issue is not before us. However, I do not see how the words “develop” and “apparent” can be construed without getting into the realm of latent versus patent. If an injury has not developed, or is not apparent, it, by definition, must be latent. In other words, any latent injury or condition cannot be apparent.
With this in mind, I believe the language used in statute of limitations cases involving latent injuries is instructive. This language includes such phrases as “the true or full extent of the injury manifest itself,” “when the substantial character of the injury becomes known,” and “claimant knows or should reasonably be expected to be aware of the full extent and nature of the injury.” Thus, in my opinion, the statute does not begin to run until the injury manifests itself or until claimant knows or should reasonably be expected to be aware of the full extent and nature of the injury. Further, such a definition would not take into account a possibility that the statute will not run until the condition has stabilized, because the injury could be apparent to claimant but not stable.
I realize that such a definition will not lend itself to a hard and fast rule as to when the statute begins to run in all cases. However, when the statute of limitations begins to run should be a question of fact to be determined by the unique circumstances of each particular case.
______________________________ PAT WEST HUMPHREY, Commissioner
Commissioner Wilson dissents.
DISSENTING OPINION
I respectfully dissent from the majority’s opinion finding that the statute of limitations does not bar the claimant’s claim for benefits. The claimant’s carpal tunnel syndrome became apparent to her in 1995 and that is when the time period for the statute of limitations began to run. In my opinion, the statute of limitations bars the claimant’s claim for benefits because the medical evidence indicates that she began having problems with her right wrist as early as 1995. Therefore, I respectfully dissent from the majority opinion.
______________________________ MIKE WILSON, Commissioner