YOUNG v. LEVI STRAUSS, 1994 AWCC 94

CLAIM NO. E202605

CONNIE YOUNG, EMPLOYEE, CLAIMANT, v. LEVI STRAUSS, EMPLOYER, RESPONDENT, and SCOTT WETZEL SERVICES, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 18, 1994

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

Claimant represented by the HONORABLE JAY N. TOLLEY, Attorney at Law, Fayetteville, Arkansas.

Respondents represented by the HONORABLE GARY WEEKS, Attorney at Law, Fayetteville, 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 December 30, 1993. In that opinion and order, the administrative law judge found that the respondents are responsible for the costs of the claimant’s proposed plan of rehabilitation in the form of training at Leon’s Hair Academy. After conducting a de novo
review of the entire record, we find that the claimant’s proposed plan of rehabilitation is not reasonable in relation to the disability she sustained. Therefore, we find that the administrative law judge’s decision must be reversed.

[3] The claimant began working for the respondent employer in July of 1990. During her employment, she worked at a variety of jobs, and all of these jobs involved repetitive hand intensive duties. At some point, she began experiencing pain, numbness, weakness, and swelling in her right hand, and she reported this to the plant nurse, Rose West, in January of 1992. The claimant was sent to Dr. Larry Tuttle, and, after examining the claimant on February 3, 1992, Dr. Tuttle opined that the problem was possibly caused by a callous or by early osteoarthritis. Dr. Tuttle eventually referred the claimant to Dr. Thomas Dykman, a rheumatologist. Although Dr. Dykman concluded that the claimant did show signs of osteoarthritis, he diagnosed carpal tunnel syndrome, and he opined that her discomfort was caused by the carpal tunnel syndrome instead of the osteoarthritis. According to his February 21, 1992, report, Dr. Dykman advised the claimant at that time “that work that requires her to flex and extend her wrist has some risk of aggravating her carpal tunnel syndrome and she may be simply unable to do such work.” Dr. Dykman restricted the claimant to light duty work, but reports from Ms. West indicate that there was no light duty work available at that time. The claimant was then referred to Dr. David Davis, a neurologist, and electrodiagnostic tests performed by Dr. Davis confirmed the diagnosis of right carpal tunnel syndrome.

[4] The claimant was then referred to Dr. Luke Knox, a neurosurgeon, and, after conservative measures did not provide relief, Dr. Knox surgically released the carpal tunnel on April 20, 1992. On July 17, 1992, referring to the American Medical Association, Guides to the Evaluationof Permanent Impairment, Dr. Knox determined that the claimant had not sustained any permanent physical impairment at that time. Nevertheless, the claimant continued to experience pain, numbness, and swelling in her hand.

[5] She was examined by Dr. James F. Moore, an orthopedic surgeon, on August 18, 1992. Dr. Moore’s report indicates that repeat electrodiagnostic studies and clinical findings still indicated abnormal nerve function, and he concluded that “there are definite restrictions for use of the hand.” The claimant was also evaluated by Dr. Jim McKenzie, also an orthopedic specialist. Dr. McKenzie’s report indicates that the scar was sensitive to the touch and that the Tinel’s test was positive in that area. He also injected the wrist to block the palmar cutaneous branch of the median nerve, and this gave the claimant complete relief, indicating there was in fact damage to the nerve. Based on these findings, Dr. McKenzie diagnosed a contusion or laceration to the palmar cutaneous branch of the median nerve, which he opined should resolve with time. Dr. McKenzie has also opined that “over several years from now that her pain most likely will diminish and her grip strength will slowly return.” On February 9, 1993, Dr. McKenzie assigned a 7% permanent impairment rating. In addition, he opined that “her condition has not limited her from continuing to work.”

[6] Soon after the surgery, the respondent employer provided work to the claimant, and the claimant returned to work. Initially, she worked at a job that involved constant writing with a pencil. However, she complained that this caused significant pain, so she only worked one day. After being off an additional two weeks, she returned to work and attempted three jobs which had been pre-approved by her physician. However, these jobs involved use of her right hand, and she continued to complain of swelling, numbness, and pain. On August 17, 1993, she was terminated by the respondent employer for excessive absences.

[7] Under Ark. Code Ann. § 11-9-505 (1987), the Commission has the discretion to approve or disapprove a plan of rehabilitation. Coosenberry v. McCroskey Sheet Metal,6 Ark. App. 177, 639 S.W.2d 518 (1982). Under the statute in effect at the time of the claimant’s injury, the claimant must prove that she is entitled to receive compensation benefits for permanent disability and that the program is reasonable in relation to the disability sustained by the employee. We have previously found that the claimant’s ability to return to his previous employer, either at the same job or a different job, is a factor to consider in determining whether a rehabilitation plan should be approved. Tackett v. Hickory Springs Manufacturing Co.,
Full Workers’ Compensation Commission, Aug. 14, 1979 (C715817); Lester v. #1 Orchards, Full Workers’ Compensation Commission, Sep. 28, 1983; Mark Efrid v. Safeway Stores,
Full Workers’ Compensation Commission, Jun. 20, 1988 (Claim Nos. D700449 D304053). However, contrary to the arguments of the respondents, the law in effect at the time of the claimant’s injury did not require a showing that the employer refused to put the employee back to work when suitable work for the employee existed or that the employer did not give the employee reemployment assistance upon finding that no suitable work existed for the employee. Ark. Code Ann. § 11-9-505 was amended by Act 796 to include these requirements, but the claimant’s injury occurred before the effective date of Act 796.

[8] In the present claim, the respondent employer did attempt to accommodate the claimant by making work available which was within her restrictions. However, according to the claimant’s testimony, all of the work available at the respondent employer’s plant involves intensive use of the hand, and the medical evidence indicates that the claimant’s ability to use her hand without aggravating the underlying condition and experiencing complications is restricted. Consequently, we find that the respondent employer’s commendable efforts to make work available to the claimant does not preclude approval of her rehabilitation plan.

[9] However, we find that the proposed rehabilitation plan is not reasonable in relation to the claimant’s injury. In this regard, the claimant proposes attending Leon’s Hair Academy to receive the training necessary to receive a cosmetologist license. According to her testimony, this would allow her to work cutting and styling hair, which would involve rolling hair. However, the claimant conceded that these are very hand intensive activities involving rapid movement of the hand and fingers in awkward positions. In this regard, as discussed, the claimant testified that she experienced significant problems with pain and swelling when she attempted hand intensive work for the respondent employer, and she testified that this affected her ability to perform her duties. Also, on a information sheet completed before receiving chiropractic treatment, the claimant indicated that she experienced pain or difficulty using scissors, using hand tools, managing a watch or clock, and signing her name, and the maneuvers required for each of these activities is similar to the maneuvers that would be required to be a cosmetologist.

[10] Furthermore, the medical evidence indicates that she should avoid such hand intensive work. Dr. Dykman opined as early as February 21, 1992, that she may be unable to do such work. In addition, even after her surgery, Dr. Moore indicated that there were definite restrictions for the use of the hand. Also, Dr. McKenzie indicated that the claimant may continue to experience problems for several years and that hand intensive work will continue to aggravate the condition. Dr. McKenzie’s restrictions also include no use of scissors.

[11] The claimant testified that she spent an entire day observing Leon. Based on these observations, she feels that the work would not aggravate her problems and that she could do the work. In addition, she testified that Leon has told her that he can teach her a method that will not aggravate her problems. However, as discussed a number of medical specialists have opined that the claimant’s use of her hand is restricted and that activities such as that involved in cosmetology should be avoided. We find that the opinions of these medical specialists are entitled to more weight than the opinion of Leon. Moreover, the claimant has undergone extensive physical therapy, and she continues to complain of problems, especially when she engages in hand intensive work. Therefore, we find it unlikely that Leon will be able to teach the claimant a method which would not produce these problems.

[12] In short, the claimant has sustained an injury which limits her ability to engage in hand intensive activities. According to her testimony, these limitations affected her ability to continue working at the jobs offered by the respondent employer, and the medical evidence suggests that she should avoid such hand intensive activities. Nevertheless, she now proposes that the respondents pay to train her for a job that will involve hand intensive labor which may be actually more hand intensive than the jobs provided by the respondent employer. The only evidence presented to suggest that the claimant could work as a cosmetologist without problems is found in the claimant’s testimony regarding Leon’s opinion. However, in light of the other evidence to the contrary, we find that Leon’s opinion is not sufficient to support a finding that the claimant could be successful as a cosmetologist.

[13] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the proposed plan of rehabilitation is not reasonable in relation to the claimant’s injury. Therefore, her request for approval of that plan is denied, and the administrative law judge’s decision is reversed.

[14] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[15] Commissioner Humphrey concurs.