BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G MARY K. BUNDGARD, EMPLOYEE CLAIMANT WAL MART ASSOCIATES INC.

Transcription

1 BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G MARY K. BUNDGARD, EMPLOYEE CLAIMANT WAL MART ASSOCIATES INC., EMPLOYER CLAIMS MANAGEMENT, INC., INSURANCE CARRIER RESPONDENT RESPONDENT OPINION FILED JULY 7, 2017 Hearing before ADMINISTRATIVE LAW JUDGE AMY GRIMES, in Springdale, Washington County, Arkansas. Claimant represented by JASON L. WATSON, Attorney, Fayetteville, Arkansas. Respondents represented by CURTIS L. NEBBEN, Attorney, Fayetteville, Arkansas. STATEMENT OF THE CASE This matter was originally tried before the Commission on May 25, 2016, and an opinion was issued by this administrative law judge on August 4, That opinion was reversed by the Full Commission on February 6, 2017, and the matter was remanded for consideration of the remaining issues. At the time of the initial hearing it was noted that a pre hearing conference was conducted on April 20, 2016, and a pre hearing order was filed that same date. A copy of the pre hearing order has been marked as Commission s Exhibit No. 1 and with modification and no objection is made part of the record. The parties agreed to the following stipulations: 1. The Arkansas Workers' Compensation Commission has jurisdiction of this case. 2. The employee/employer relationship existed between the parties at all relevant times. 3. The respondent has controverted this claim in its entirety. 4. The parties now stipulate to the compensation rate being $ for temporary total disability and $ for permanent partial disability.

2 G Bundgard -2- The issues to be litigated were limited to the following: 1. Compensability of the injury to the bilateral upper extremities due to overuse. 2. Medical benefits. 3. Temporary total disability benefits from December 24, 2013, through January 20, Attorney s fee. 5. Statute of limitations. The claimant contends that she sustained bilateral overuse injuries to her upper extremities which arose out of and in the course of her employment. She contends she is entitled to medical benefits, temporary total disability benefits from December 24, 2013 through January 20, 2014, and an attorney s fee. The respondents contend claimant is alleging an injury in the form of bilateral carpal tunnel syndrome on or about September 28, The claimant reported her alleged injury and made a request for medical treatment on September 27, At that time the claimant gave an approximate date of injury of July 1, Claimant filled out her Form N on September 27, The claimant filed her Form AR-C on September 28, The respondents contend the claimant did not sustain a compensable injury arising out of and in the course of her employment and in the event that she did, which is specifically denied, said injury is barred by the applicable statute of limitations. As previously indicated, this matter was originally tried on May 25, 2016 on the above listed issues and including an issue regarding the statute of limitations. The Law Judge determined that the statute of limitations had run on the claimant s time to file a claim. The Full Commission by opinion dated February 6, 2017 reversed the Law Judge s decision and remanded the matter for a determination on the balance of the issues. It is from that Full Commission opinion that this opinion follows. The above stipulations are hereby accepted as fact. From a review of the record as a whole to include

3 G Bundgard -3- medical reports, documents, and having heard testimony and observed demeanor of all witnesses, the following decision is rendered. The claimant has proven by a preponderance of the evidence that she suffered compensable injuries in the form of bilateral carpal tunnel syndrome. She has further proven by the same standard her entitlement to medical treatment and temporary total disability from December 24, 2013 to January 20, The claimant s attorney is entitled to a fee in this matter. FACTUAL BACKGROUND The claimant in this matter is a 49-year-old female who began working for the respondent in She worked in several different capacities during her employment with the respondent. She stated that she began work as an order filler and worked in that capacity for four years. The order filler job was located in the jewelry warehouse. The claimant testified that she then worked in quality control for two years and from there worked in receiving. She added that she worked in receiving for six years, returned to order filling, and then worked in stocking. She stated that she began work in the stocking position in July The claimant testified that at the time of the hearing she continued to work for the respondent in a Springfield store since June The claimant stated that prior to the move to Springfield, she worked a warehouse stocking job. The claimant stated that freight was brought for her to open, and the boxes varied by size. She continued that she always cut the top of the boxes off and then cut a window for the order fillers to retrieve the items for orders to be filled. The stocking position was a full time position in which the claimant worked eight hour days. She stated there was no sitting involved with the work. She added that she spent eight hours a day using a box cutter, with the exception of breaks. The claimant stated that the box cutter was about 5 inches long with a hooked blade. She stated that she would place the blade into the box and pull it toward her. She added that the cutter had another blade that was then used to make the cuts into the boxes. The claimant was asked the following:

4 G Bundgard -4- Q: How many cuts would your make on each box that you d open? A: The least amount was usually five. Q: And four to remove the lid? A: Yes. Q: And then one, you said a peep hole or an opening? A: Yes. The claimant stated that she felt like she did a box every minute and noted that she had to open at least one box every minute. She added that she was required to maintain daily goals. The claimant stated that she began to have issues with her hands and arms. She acknowledged that she had prior hand and arm issues. The claimant continued that her prior issues occurred before she worked in stocking, some three or four years prior. She stated that she never required medical attention for those issues and she did not report them to a superior. She further added that the prior issues did not affect her job or the performance of her duties. The claimant testified that she did not ask to change work departments due to her hand and arm issues. She added, however, that she was experiencing numbness, pain sometimes shooting, as well as swelling. The claimant s pain eventually became worse. She stated that her pain worsened after she began stocking in July of The claimant s symptoms progressed. She stated that she had numbness for longer periods of time, to the point that it was constant. She added that by the time she reported her hand and arm issues, her pain was constant. The numbness was so bad at that time that the claimant stated she could barely hold the box knife. The claimant reported her issues to her manager on September 27, She stated that was a Friday and the first time she had reported hand and arm issues. The claimant filled out initial workers compensation forms on September 30, The claimant stated that she felt like her hand and arm issues were related to her work, but she had never sought medical treatment for the symptoms she was

5 G Bundgard -5- experiencing. The claimant did not know the exact date of injury for the forms as there was no specific injury date. The claimant continued that her hands would get worse during her work shift, and would be worse at the end of the work week. The claimant was provided an appointment for medical treatment by the respondents. She stated the appointment was a a couple of days after she reported her injury. The claimant was seen by Dr. Moffitt on Monday, September 30, Dr. Moffitt placed the claimant on light duty with restrictions awaiting further testing. The claimant was placed on restrictions of no heavy gripping. The claimant was then placed on light duty work scanning returns for the respondent. The claimant was scheduled to return to Dr. Moffitt. She stated that the had some improvement in her symptoms with light duty. The claimant continued to see Dr. Moffitt in October and November. His records indicate that he recommended physical therapy. He continued to note that the claimant was continuing to have pain bilaterally. In November of 2013 Dr. Moffitt states that he is still recommending nerve studies. The claimant stated that she did not receive the physical therapy recommended by Dr. Moffitt or the nerve conduction study he recommended. The claimant was denied further treatment. She was informed of the denial in November of The claimant was no longer given light duty work by the respondent and was sent home. She was advised that she could return once she was fully released. The claimant then sought medical treatment on her own. She began seeing Dr. Silverberg in Joplin. The claimant stated that Dr. Silverberg was a hand specialist. She added that she had been living in Anderson, Missouri while working in Bentonville and her mother had located the doctor. The claimant stated that Dr. Silverberg signed a full release so that she could return to work and she returned to work. The claimant stated that Dr. Silverberg scheduled a nerve conduction test with Dr. Karges. The study was conducted on both wrists and surgery was recommended. The nerve study from December 13, 2013 has been placed into the record. The result of the study was consistent with the

6 G Bundgard -6- claimant suffering from bilateral mild to early moderate carpal tunnel syndrome on the right and minimal carpal tunnel syndrome on the left. The claimant had surgery on December 24, 2013 to the left wrist. She was treated for the wrist, the elbow and the median nerve, and was taken off work post surgery. She testified that she got slight relief from the surgery, but continued to have problems. The claimant stated that as of the hearing date, her right arm and hand were mostly unchanged. Dr. Silverberg s notations from January 20, 2014 reflect that despite being returned to work, the claimant had some tenderness and mild pain post left wrist surgery. She was prescribed a steroid injection and over the counter pain medication. The claimant was returned to work. She testified that she returned to work approximately six weeks after her left hand carpal tunnel surgery. The claimant went back to work without restrictions and returned to the stocking job. The claimant added that she anticipated that she would require surgery on the right side and had undergone recent testing. Updated nerve testing from January 25, 2016 again confirmed that the claimant suffered carpal tunnel syndrome of the right wrist. The records reflect that the claimant s condition continued to be a diagnosis of early moderate right carpal tunnel syndrome. The claimant continued to work for the respondent in the stocking position until she moved and was transferred to Springfield on June 28, The claimant continued that the work she was doing at the time of the hearing for the respondent was not much easier on her hands and arms. She added that she occasionally still had to use a box cutter. The claimant had no restrictions placed on her post surgery for the left hand and no restrictions pre surgery for the right hand, at the time of the hearing. The claimant used private insurance to gain medical treatment after her workers compensation claim was denied. She stated that she was unable to work from the date of the surgery on her left wrist until January 20, 2014, adding she used her sick and vacation time during this period. The claimant stated that despite reporting her injury in 2013, she did not file a worker s compensation claim until

7 G Bundgard -7- September 28, 2015, the records reflect that filing by Form AR-C. The claimant testified that she had hand problems some three or four years prior to this claim. She however stated that they required no medical treatment and she never reported those issues to a supervisor. The claimant stated that her hand issues became much worse in July of 2013 when she began stocking. She stated that her symptoms began to progress from that date to the point that she found it hard to hold a box knife. The claimant testified that she reported he hand issues on September 27, 2013 to her manager. She added that the 27 th was a Friday and that it was the first time she reported such symptoms. A Form N was filed on September 27, 2013 and an incident report for the respondent filed that same day. The claimant was scheduled to see a doctor on September 30, The claimant was given light duty restrictions and returned to work. DISCUSSION The claimant has asked to Commission to determine if she suffered compensable injuries to her bilateral upper extremities due to overuse or bilateral carpal tunnel syndrome. Arkansas Code Annotated (4)(A)(ii)(a) in relevant part defines compensable injury: 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 a compensable injury falling within this definition. In Kildow v Baldwin, 333 Ark. 335, 969 S.W.2d 190 (1998), the Arkansas Supreme Court held that a claimant who alleges a compensable injury in the form of carpal tunnel syndrome need not prove that rapid and repetitive motion caused the injury. Citing A.C.A (4)(A)(ii)(a), the Court, in Kildow, stated that the statute specifically provides that carpal tunnel syndrome falls within the definition of compensable injury and rapid and repetitive motion. It is a compensable injury, not just a type of rapid and repetitive motion. It is compensable per se. The fact that a claimant does not have

8 G Bundgard -8- to prove rapid and repetitive motion in carpal tunnel syndrome cases does not relieve them of other burdens of proof. Kildow specifically calls these burdens safeguards to protect employers from false claims. The claimant in a carpal tunnel syndrome case must show by a preponderance of the evidence that the injury arose out of and in the course of employment but also by the same standard must produce objective medical evidence (objective medical findings) that the injury is compensable, A.C.A (4)(D); see also, Hapney v. Rheem Mfg. Co., 342 Ark 11, 26 S.W.3d 777(2000). Furthermore, the claimant must provide proof that the injury is the major cause of the disability or need for treatment, A.C.A (4)(E)(ii). Major cause is defined as more than 50% of the cause, A.C.A (14)(A). Here, the claimant stated that while she had prior hand pain and issues, she had not had the need to seek treatment prior to working the job as stocker for the respondent. She stated that her prior issues also did not keep her from performing her duties. The claimant began working as a stocker for the respondent in July of 2013 after doing other jobs. She stated that she used a box knife to make no less that five cuts to boxes of freight that were given to her to prepare for orders to be filled. She stated that she cut boxes at a rate of one per minute and used the box knife for her eight hour shifts. The claimant stated that in September 2013 the numbness in her hands became constant at which time she reported her issues to her manager. The claimant was sent for treatment by the respondent and began seeing Dr. Moffitt. The claimant did not file a Form-C until September 28, The issue of the filing and its affect on the statute of limitations has been litigated. The Full Commission found that the time for filing a claim had not run in the claimant s case. That ruling is final. Dr. Moffitt recommended physical therapy and nerve studies. The claim was denied and claimant was unable to receive such treatment. She began to see Dr. Silverberg on her own. She then had bilateral nerve studies conducted and was found to suffer from bilateral carpal tunnel syndrome in

9 G Bundgard -9- both the right and left wrists. The claimant had surgery for her left side carpal tunnel syndrome in December She stated that the surgery provided some relief, but she continued to have some issues. The claimant has not had right carpal tunnel surgery. An updated nerve study in January of 2016 confirmed that the claimant continued to suffer carpal tunnel syndrome in the right wrist. The claimant suffered no other injury to her hands, wrists, and arms. While she stated she had some prior hand and arm issues, none caused her the need for treatment or filing a notice of injury until September It is that time that the claimant stated that her condition worsened to the point that she began to have issues with her work and worsening numbness. Clearly, this claimant sustained an injury causing external or internal harm to her body which arose out of and in the course of her work. The injury resulted in disability and required medical treatment. Furthermore, there is no question that the claimant suffers from bilateral carpal tunnel syndrome. The nerve conduction studies from 2013 and 2016 reflect that the claimant has bilateral carpal tunnel syndrome. She has had surgical treatment for the left, but clearly based on the evidence in the record continues to suffer from carpal tunnel syndrome of the right wrist. The nerve conduction studies are objective medical findings. Additionally, the evidence in the record supports a finding that the alleged injury is the major cause of the claimant s disability or need for treatment. The claimant has proven by a preponderance of the evidence that she suffered a compensable injury in the form or bilateral carpal tunnel syndrome while working for the respondent. She has provided testimony and medical evidence to support her claim. Furthermore, the alleged injury is the major cause of the claimant s disability or need for treatment. The claimant has next asked the Commission to determine her entitlement to medical treatment. Arkansas Code Annotated (4)(F)(i) states: When an employee is determined to have a compensable injury, the employee is entitled to medical and temporary disability as provided

10 G Bundgard -10- by this chapter. The claimant had been found to have suffered compensable injuries to her bilateral upper extremities in the form of carpal tunnel syndrome. Once it is settled that the claimant has a compensable injury, the question of medical services must be determined by looking at the facts in question and determining if the medical services are reasonably necessary for the treatment of the claimant s injury. A.C.A (a) requires that: The employer shall promptly provide for an injured employee such medical, surgical, hospital, chiropractic, optometric, podiatric, and nursing services and medicine, crutches, ambulatory devices, artificial limbs, eyeglasses, contact lenses, hearing aids, and other apparatus as may be reasonably necessary in connection with the injury received by the employee. What constitutes reasonable and necessary treatment under A. C. A (a) is a fact question for the Commission. Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750(1984). Here, the claimant was sent for treatment by the respondent in September 2013 after reporting her hand and arm issues. She was treated by Dr. Moffitt, who recommended physical therapy and nerve testing. The claimant was denied further treatment and sought treatment on her own. She had nerve studies that confirmed that she suffered from bilateral carpal tunnel syndrome. She eventually had surgery for her left wrist. She has not been treated surgically for her right side carpal tunnel syndrome. The claimant stated that she got some relief from the left side surgery, but stated she had some continued pain. Dr. Silverberg s records from January 2014 reflect his notations as to the claimant s mild left side pain and his treatment recommendation. Clearly, the treatment requested and provided to the claimant is reasonable and necessary for the treatment of his compensable bilateral carpal tunnel syndrome. The claimant has proven by a preponderance of the evidence that the treatment for her compensable injuries is reasonable and necessary. As such she is entitled to reasonable and necessary medical treatment.

11 G Bundgard -11- The claimant has next asked the Commission to determine her entitlement to temporary total disability from December 24, 2013 to January 20, The claimant has been found to have suffered bilateral compensable injuries in the form of carpal tunnel syndrome, and such injuries are scheduled injuries as set forth in A.C.A She has had surgery for her left side carpal tunnel syndrome. The claimant stated and the medical records reflect that she had the left side surgery on December 24, She stated that she was off work until January 20, 2014 at which time she was returned to work by Dr. Silverberg. An employee who suffers a scheduled injury is to receive temporary total or temporary partial disability benefits during their healing period or until she returns to work, regardless of whether they have demonstrated they are actually incapacitated from earning wages, A.C.A (a); see also, Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). The claimant has proven by a preponderance of the evidence that she is entitled to temporary total disability from December 24, 2013 to January 20, FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The Arkansas Workers Compensation Commission has jurisdiction of this claim. 2. The proposed stipulations set forth above are hereby accepted as fact 3. The Full Commission has found that the claimant s claim is not barred by the statute of limitations as set forth in an opinion dated February 6, The claimant has proven by a preponderance of the evidence that she suffered compensable injuries to her bilateral extremities in the form of carpal tunnel syndrome. She has submitted objective findings to support this finding and has proven the compensable injury is the major cause of her disability or need for treatment. 5. The claimant has furthermore proven by a preponderance of the evidence that the medical treatment requested in reasonable and necessary for the treatment of the

12 G Bundgard -12- compensable injuries to her bilateral upper extremities. 6. The claimant has, by the same standard, proven that she is entitled to temporary total disability from December 24, 2013 to January 20, The claimant s attorney is entitled to a fee based on the above findings. ORDER The claimant has been found to have suffered compensable injuries to her bilateral upper extremities in the form of carpal tunnel syndrome. She is entitled to medical treatment and temporary total disability from December 24, 2013 to January 20, The claimant s attorney is entitled to an attorney fee based on the above findings and conclusions. IT IS SO ORDERED. AMY GRIMES ADMINISTRATIVE LAW JUDGE