An Administrative Law Judge entered an opinion and order in the above-captioned case on October 6, 1995, finding that claimant had sustained a compensable gradual injury which manifested itself in 1992 in the form of bilateral carpal tunnel syndrome (hereinafter "CTS"), and that claimant was entitled to an award of temporary total disability benefits (hereinafter "TTD") from December 1, 1994, through a date yet to be determined. Respondents appeal from that opinion and order, contending that claimant has proven neither a compensable injury nor a disability from CTS.
Following our de novo review of the entire record, we find that claimant has proven, by a preponderance of the credible evidence, that she did sustain a compensable injury as a result of the duties she performed for respondent employer, and that she is additionally entitled to an award of TTD benefits from December 1, 1994, through a date yet to be determined. The decision of the Administrative Law Judge must therefore be affirmed.
Claimant worked for eleven-and-one-half years for respondent employer, a municipal organization, before resigning at the end of February, 1993. One of her primary duties during the first nine-and-one-half years of that time was reading the city's water meters and hand writing (in duplicate) approximately 250 to 300 water bills each month. Accordingly, she was also responsible for calculating each water bill and handwriting a receipt for each payment received.
Out of a seven-hour work day, claimant testified that she spent approximately four to five hours using her hands to write. Claimant stated that she would write with her right hand and use her left to turn over each card, or bill, upon completing it. After her office became computerized, claimant continued to handle the water bill entries, in addition to preparing correspondence (which had always been one of her additional duties).
Claimant testified that she first began to experience pain in her hands sometime in 1988, and that she made mention of this to at least two people — including her immediate supervisor (the mayor), who simply informed her that it was "just arthritis." Claimant received no information concerning workers' compensation or any instructions to file a claim. Her condition worsened over time, and according to her supervisor (Mayor Jane Roberts), its effects could be clearly observed:
Actually, I didn't know there was anything wrong with her wrists until shortly before she quit, and she showed me her hands, they were swelled, bad, and I said, Pat, what is that, and what caused that, and she it was carpal . . . tunnel syndrome, I had never heard of that, and I asked her what it was, and so she explained to me that it was from using your hands so much, and that was my first knowledge of even hearing of the thing.
Concerning her symptoms at the time of the hearing (approximately one-and-one-half years later), claimant related that:
Well, my hands hurt so bad that at first I thought I had had a stroke because I was trying to pick the skillet up and I just couldn't pick it up with my right hand, and it just ached all up my arms and everything and I thought, well, you know, but then it got to where I was just used to that. I couldn't distinguish money in the money bag, I would have to take and look to make sure that I was giving the correct change because I couldn't feel it, and now it's completely dead, my right hand is, but my left hand it just aches at night and I can't sleep, you know, and I have to put it over the side of the bed so it won't hurt so bad.
With regard to the medical evidence, claimant presented with pain and numbness in her hands to Dr. Sam Brown on July 20, 1992. Dr. Brown appears to have suspected CTS from the beginning, and nerve conduction studies performed on June 2, 1993, confirmed this. Dr. Brown thereafter referred claimant to Dr. Richard Hilborn, an orthopedist, and the latter's physical exam revealed a positive bilateral Tinel's and "borderline" positive bilateral Phalen's. Dr. Hilborn opined that:
The patient is having symptomatology of bilateral carpal tunnel syndrome worse on the right . . . In light of the chronicity of her problem, I feel that she is a candidate for bilateral carpal tunnel release.
As to causation, Dr. Hilborn wrote to claimant's attorney on November 11, 1993:
The development of carpal tunnel syndrome can be related to duties requiring repetitive hand movements over extended periods of time. Additionally, this condition is often associated with occupations that require repeated forceful wrist flexion. Based on this patient's work history it is certainly possible that her present condition is related to her former job. Certain repetitive hand activities performed for long periods of time do put many people at higher risk for developing carpal tunnel syndrome.
Claimant also consulted Dr. Charles E. Hollingsworth on January 11, 1994, who noted that "this lady's hands appear to me to be moderately puffy." Dr. Hollingsworth's exam revealed a positive Tinel's and Phalen's, as well as an "objective diminished 2 point discrimination to the thumb, index, long, and radial side of the ring finger bilaterally." After describing claimant's carpal tunnel syndrome as "severe," Dr. Hollingsworth went on to recommend that:
I think Mrs. Buttram (sic) needs to consider surgical decompression as soon as possible. I think she already has irreversible damage to the nerve on the right side. Even with successful decompression, I do not know if she will regain much sensation to her fingers.
In a follow-up letter to claimant's attorney, Dr. Hollingsworth spoke briefly as to the cause of her condition:
I certainly feel that this patient's symptoms arose during her employment at Fouke City Hall and her job duties appear to have been the major instigating cause of her problems.I.
Respondents assert that this claim is governed by Act 796 of 1993, despite the fact that claimant received a diagnosis of bilateral CTS in June of 1993. In support of this proposition, respondents cite us to Hall's Cleaners v. Wortham, 38 Ark. App. 86, 829 S.W.2d 424 (1992), in which the Arkansas Court of Appeals explained that Arkansas is an "injury state," and that "the date of the accident and the date of the injury are not necessarily the same." Also, the Court stated that:
The time of the injury means a compensable injury, and . . . an injury does not become compensable until the claimant suffers a loss in earnings.
(citing Cornish Welding Shop v Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983)).
Respondents further point out that the Arkansas Supreme Court later affirmed the Court of Appeals (seeHall's Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992)), noting that:
"Although appellee's injury had been apparent for some three years, it is undisputed that she was never absent from the job until she reported to the hospital for reconstructive surgery on August 31, 1989. Thus it was not until that time, when she missed a month of work, that she became entitled to benefits under the Workers' Compensation Law. (Emphasis respondents').
Relying on the foregoing comments, respondents argue that this claim is governed by Act 796 because claimant suffered no disability (or loss of earnings) until December 1, 1994, at which time she quit work for a subsequent employer owing at least in part to her hand and wrist difficulties. Simply put, respondents have thus proffered December 1, 1994, as the date of injury. We decline to accept.
Respondents have failed to note the true issue inHall's Cleaners: the date from which the statute of limitations begins to run:
The issue on appeal today is when did appellee's condition first rise to the level of an "injury" for purposes of commencing the statute of limitation. (Emphasis added).
Hall's Cleaners, 311 Ark. at 106.
Furthermore,
It is clear that the issue at bar today is "what is a compensable injury for purposes of commencing the statute of limitations contained within § 11-9-702 (a)(1)," which applies to a claimant's right to recover benefits for an initial "compensable injury." (Emphasis added).
Id. at 107.
A complete reading of Hall's Cleaners (at the Supreme Court level) also clarifies the statements of the Court of Appeals discussed above:
However, review of the case law on this subject demonstrates that labelling Arkansas merely as an "injury state" is somewhat misleading. In Donaldson, this court held that, for purposes of commencing the statute of limitations under § 11-9-702 (a)(1), the word "injury" is to be construed as "compensable injury," and than an injury does not become "compensable" until . . . (2) claimant suffers a loss in earnings on account of the injury. (Emphasis added).
(citing Donaldson v. Calvert-McBride Printing Co., 217 Ark. 625, 232 S.W.2d 651 (1950)).
The construction of the word "injury" which respondents would have us adopt is inapplicable to the issue of whether Act 796 controls the instant case. Instead, the rule from Hall's Cleaners is generally limited to questions relating to the statute of limitations. We are certainly aware however, that this rule has been used to resolve issues other than the statute of limitations. These occasions include benefit rate and notice cases. SeeMontgomery v. Delta Air Lines, 31 Ark. App. 203, 791 S.W.2d 716 (1990) and Calion Lumber Co. v. Goff, 14 Ark. App. 18, 684 S.W.2d 272 (1985). Nevertheless, we are not persuaded that the issues presented in either of those instances, or in Hall's Cleaners (and its progeny) itself, are sufficiently related to the question of which law governs to warrant their application here.
Finally, we note that the Arkansas Court of Appeals has recently rejected the notion that a post-Act 796 recurrence of a pre-Act 796 medical-only claim should be subject to the provisions of the new Act. See Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). Where a claimant demonstrates the manifestation of an obvious and unresolved physical injury prior to the effective date of Act 796, which we find below that claimant in the instant case has done, the same logic as that relied on in Atkins ought to be applicable (regardless of whether a claim was previously filed).
With regard to relevant statutory provisions, Act 796 itself provides that it "shall apply only to those injuries which occur after July 1, 1993" (See "effective dates" section preceding Ark. Code Ann. § 11-9-101 (Repl. 1996). There is no accompanying provision stating or implying that an "injury," for purposes of determining whether the Act applies, is deemed to have occurred only upon a loss of wages. Nor can we impose such a rule in light of our statutory duty to strictly construe the new Act.
Also, Ark. Code Ann. § 11-9-702 (a)(1)(B) (Repl. 1996), relating to the statute of limitations, provides that:
For purposes of this section, the date of the compensable injury shall be defined as the date an injury is caused by an accident as set forth in § 11-9-102 (5).
In other words, it appears that the General Assembly has specifically abrogated the statute of limitations rule established in Hall's Cleaners, at least with regard to those injuries which are caused by a specific "accident." Because the rationale of Hall's Cleaners and its descendants can no longer be used for much of its original function, and based on our reasoning set out above, we find that said rationale should not be applied to questions relating to whether Act 796 applies to a given injury.
The medical evidence in the present case reveals that claimant's CTS manifested itself no later than June 2, 1993 — the date of the nerve conduction studies that Dr. Hilborn considered to have "confirmed" the diagnosis. In addition, Dr. Brown specifically included carpal tunnel syndrome as one of his impressions as early as July 20, 1992. Finally, claimant herself testified that she began having problems with her hands as far back as 1988 and her former supervisor, Jane Roberts, stated that claimants' hands were "swelled, bad" prior to her departure from work in February, 1993. From the foregoing, we specifically find that claimant sustained her injury well before the effective date of Act 796 and the same does not apply to this case. There is thus no need for claimant to demonstrate, despite respondents assertions to the contrary, that her injury arose from "rapid repetitive motion" or that her "alleged" compensable injury is the "major cause" of her resulting disability or need for treatment. (See Ark. Code §§ 11-9-102 (5)(A)(ii)(a) and 11-9-102 (5)(D)(ii) (Repl. 1996).
We also specifically find that claimant did sustain a compensable injury, in the form of bilateral CTS, arising out of her employment duties with respondent employer. Dr. Hilborn has acknowledged that such a connection is at least "possible," and Dr. Hollingsworth has opined without qualification that claimant's "symptoms arose during her employment at Fouke City Hall." Of course, we are not unaware of respondents' objections to any reliance on Dr. Hollingsworth's opinion. Respondents assert that said opinion was rendered without knowledge of claimant's occasional weekend work as a home-health care provider and her eventual employment with Miller County.
Concerning the latter, claimant's employment subsequent to her work with respondent employer is immaterial in that her CTS had already manifested itself long before February of 1993 (when she resigned from her position with respondent). The question is thus not one of competing causes at the time of Dr. Hollingsworth's assessment, but of whether her previous employment played a causative role in the condition's initial manifestation.
With regard to her part-time home-health duties, claimant testified that she only provided care for a disabled individual on some weekends and did not have to lift or move him. We are not persuaded that claimant's omission of these activities dilutes the credibility of Dr. Hollingsworth's opinion, and specifically find said opinion to be worthy of the full weight and consideration we have accorded it.
We also find Dr. Hilborn's opinion (to the effect that it was at least possible for claimant's CTS to have resulted from her duties with respondent employer) to be persuasive, in that causal connection is generally a matter of inference, and possibilities may play a proper and important role in establishing that relationship. Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d 875 (1992).
Based on the foregoing medical evidence and claimant's credible testimony, we specifically find that she did indeed sustain a compensable gradual injury in the form of bilateral CTS which manifested itself in 1992 and which arose as a consequence of her employment duties while working for respondent employer.
II.
Claimant has also contended that she is entitled to an award of TTD benefits beginning December 1, 1994 and continuing through a date yet to be determined.
Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Arkansas State Highway and Transp. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). In turn, an injured worker's healing period continues until he is as far restored as the permanent character of his injury will permit, and will end once the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized. Id. Finally, the question of when the healing period has ended is a factual determination that is to be made by the Commission. Id.
Our review of the record persuades us that claimant has proven, by a preponderance of the credible evidence, that she is still within her healing period and is totally incapacitated to earn wages. Accordingly, we find that she is entitled to TTD benefits from December 1, 1994, to a date yet to be determined.
Both Drs. Hilborn and Hollingsworth have recommended that claimant undergo surgery to correct her bilateral CTS, and we note that she has already suffered significant (right side) nerve damage. However, this surgery has yet to be performed owing to respondents' controversion. To deem claimant capable of employment, on the evidence before us, would require her to risk increasing the damage that Dr. Hollingsworth has opined is already "irreversible."
Moreover, claimant's testimony, which we find to be entirely credible, established that she had to leave her employment with Miller County due to her "knees and hands." She has since had a total knee replacement which was apparently covered by another disability policy. Although her recovering knee seems to be her most immediate concern, claimant also stated that her knee is and will continue getting better, and that she could "work today" if not for her hands. Accordingly, we find that claimant remains in her healing period with regard to her bilateral CTS and is totally incapacitated to earn wages.
Based on our de novo review of the entire record and for the reasons discussed hereinabove, we specifically find that claimant has sustained a compensable injury in the form of bilateral carpal tunnel syndrome as a result of her employment duties while working for respondent employer, and that she is entitled to an award of temporary total disability benefits from December 1, 1994 to a date yet to be determined. The decision of the Administrative Law Judge should therefore be, and hereby is, affirmed.
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 as provided by Ark. Code Ann. § 11-9-715 (b) (Repl. 1996).
IT IS SO ORDERED.
[42] Commissioner Wilson dissents.
DISSENTING OPINIONI respectfully dissent from the majority's opinion finding that the law in effect prior to the effective date of Act 796 is controlling and finding that the claimant sustained a gradual injury while employed with the respondent.
The difficulty with this case arises since the claimant does not contend that she sustained an injury identifiable by time and place of occurrence, but rather contends that she sustained a gradual onset injury. Act 796 which requires the date of the compensable injury to be defined as "the date an injury is caused by an accident as set forth in § 11-9-102 (5)" does not clarify the injury date for gradual onset injuries. (See, Ark. Code Ann. § 11-9-702 (a)(1)(B)).
Ark. Code Ann. § 11-9-102 (5)(A)(i) defines a compensable injury as:
An accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is `accidental' only if it is caused by a specific incident and is identifiable by time and place of occurrence. (Emphasis added.)
Thus, for specific incident injuries the "injury date" is the date on which the specific incident occurred. It is no longer the date of the first disability. However, for injuries governed by Ark. Code Ann. § 11-9-102 (5)(A)(ii), otherwise known as gradual onset injuries, the "injury date" is not clearly identified.
This subsection states in pertinent part:
An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(a) caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as an injury falling within this definition;
(b) a back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence;
(c) hearing loss which is not caused by a specific incident or which is not identifiable by time and place of occurrence.
The argument has been made that the "injury date" for gradual onset injuries should be the same as it previously was for statute of limitation purposes. That is the date when "disability" occurs. However, Act 796 effectively eliminated the date on which disability began as the date of the injury for statute of limitation purposes. Consequently, the disability date no longer bears significance when determining a claimant's injury date. This can be seen in the gradual onset section which does not require disability prior to finding a gradual onset injury compensable. All claimant need prove is that she sustained a gradual onset injury which caused internal or external physical harm to the body which arose out of and in the course of employment and that the alleged gradual onset injury is the major cause of claimant's disability or need for treatment. Ark. Code Ann. § 11-9-102 (5)(B)(ii) and § 11-9-102 (5)(E)(ii) (Repl. 1996).
The controlling date for Act 796 cases is the "injury date". Ark. Code Ann. § 11-9-702. There are two potential events which could serve to establish the injury date. First, the date on which a claimant signs and files a Form AR-N stating that he has sustained a gradual onset or rapid repetitive motion injury is a fair and reasonable date to use as the date of injury. By the time a Form AR-N is completed, claimant's symptoms will have manifested themselves to the point where it is obvious that an injury in the form of gradual onset or rapid repetitive motion has occurred. This date may precede the date of first medical services or the date of disability. However, it is a date certain in time when not only the claimant is aware of his condition, but he has made his employer aware of the condition as well.
The second possible date of injury would be when medical services are first rendered for the gradual onset condition. Medical services may be rendered before claimant even advises his employer of the condition and before a Form AR-N has been completed. However, this may not always be the case. In any event, by the time claimant seeks medical services, his condition has manifested to the point where it is known, at least to the claimant. This date certain, is likewise, a fair and reasonable date.
This claim involves both scenarios. Claimant received medical treatment prior to the effective date of Act 796, however, she did not file a Form AR-N until after the effective date of Act 796. Since the majority has found that this claim is governed by the "old law", are we to now assume that medical services governs one's injury date?
Although claimant did not file a Form AR-N and did not suffer disability until after the effective date (July 1, 1993), I cannot agree with the majority that the recent Court of Appeals case in Atkins Nursing Home v. Gray, 45 Ark. App. 125, 923 S.W.2d 897 (1996), is controlling with regard to the injury date and which law applies. Atkins is distinguishable from the facts presently before us in this claim. In Atkins, the claimant sustained a compensable injury in July of 1992. The injury was accepted as compensable and medical services were rendered. The claimant then suffered a recurrence of her compensable injury in August of 1993. The Court of Appeals found that the controlling law was the law in effect prior to the enactment of Act 796 since the original injury occurred prior to July, 1993. The claimant in Atkins suffered a recurrence of an old Act injury which had been accepted by respondent as a medicals only claim. The recurrence was not a new injury, but rather a second complication which was the natural and probable consequence of a previous injury. Thus, the injury date in Atkins was the original injury date (old Act), not the date of the recurrence. I cannot agree with the majority's argument that the period of incapacitation in Atkins is relevant or bears upon the facts in this case. Since the initial injury in Atkins was accepted as compensable under the old Act at the time it occurred, the period of incapacitation associated with the recurrence is irrelevant. In my opinion, Atkins is only controlling when a recurrence of an old Act claim occurs after the effective date of Act 796.
However, in the case currently before the Commission, the claimant's carpal tunnel syndrome was not accepted as a compensable injury. In fact, claimant did not assert a claim for her carpal tunnel syndrome until after the new Act went into effect and after she suffered a disability associated with her carpal tunnel. Thus, I do not believe the holding in Atkins which, in my opinion, applies only to recurrences, is controlling upon the facts in this case. This is not a recurrence case.
In my opinion, the majority's reliance on Atkins Nursing Home v. Gray, supra, is not only misplaced but only serves to muddle the injury date issue even further. By relying on Atkins and some nebulous concept of "manifestation", the majority has complicated and confused an issue which is as simple as a date of medical services or filing a form. Therefore, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner
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