Gale J. Mebert v. Your Employment Service and Wausau

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION I

CA00-522

NOVEMBER 22, 2000

GALE J. MEBERT

AN APPEAL FROM THE APPELLANT ARKANSAS WORKERS' COMPENSATION COMMISSION v. [E-81-47-25]

YOUR EMPLOYMENT SERVICE

and WAUSAU

APPELLEES

AFFIRMED

Gale J. Mebert appeals from a decision of the Workers' Compensation Commission finding that she has not suffered a compensable injury and denying her benefits. We find no error and affirm the Commission's decision.

Appellant began working for Your Employment Service (YES), a temporary employment service, on October 26, 1998. YES assigned appellant a job with CECA, a manufacturing facility in Jacksonville, Arkansas. Appellant worked in the CECA plant for approximately ten days before ceasing her employment. Over the course of her ten-day employment, appellant spent the first four days performing various maintenance tasks and the remaining six days operating two machines used in manufacturing a steel drillingproduct. It is during this latter six-day period that appellant claims to have developed a condition for which she is entitled to workers' compensation benefits.

At the hearing before the ALJ, appellant testified that she began experiencing problems with her hands shortly after she began working with the machines. She stated that her job required her to individually take parts weighing approximately 2½ pounds from a bin, place them in a machine, close the door, and press a start button. She further stated that she operated two of these machines simultaneously, placing a part in one machine then moving to the next machine to place a part in it, whereupon she would then remove the part from the first machine and restart the process. According to appellant, she would complete the process five to six times per minute with each machine.

Appellant testified that one week into her employment her hands began to hurt, cramp, and fall asleep at night. She stated that the problem initially developed in her right hand but quickly developed in her left hand as well. She stated that she would wake up crying from the pain in her hands.

Appellant reported her symptoms to her employer on November 8, 1998, and quit working that same day. Although appellant testified that she saw Dr. Richard L. Hayes, the company physician, on November 9, 1998, Dr. Hayes's notes reveal that he initially saw appellant on November 18, 1998. Dr. Hayes diagnosed appellant with possible bilateral carpal tunnel syndrome and referred her for physical therapy. Dr. Hayes's records indicate that appellant attended physical therapy on November 18, 1998, and returned to see him on November 24, 1998, with noted improvement. Dr. Hayes recommended appellant continuewith physical therapy. After appellant returned to see Dr. Hayes on December 1, 1998, with continued complaints, he felt that she should be referred for an orthopedic evaluation. At this point, YES apparently determined appellant's injury was not compensable and refused to pay for any further treatment. Therefore, claimant did not undergo the orthopedic evaluation.

Appellant testified that she found another job in March 1999 with a company called BS Construction. While at BS Construction, appellant cleaned tools and loaded trucks. Appellant stated, however, that she quit working for BS Construction about two or three weeks before the ALJ hearing on April 26, 1999, because of pain in her elbows and hands. Appellant never told Dr. Hayes about pain in her elbows. Appellant testified that on the advice of her attorney, she visited Dr. Scott Carle. According to Dr. Carle's medical evaluation, appellant suffered from lateral and bilateral epicondylitis, otherwise known as tennis elbow. Dr. Carle's evaluation further provided that he was reasonably certain that appellant's condition resulted from her work with YES in November 1998.

Based on this evidence, the ALJ initially determined that appellant had not presented objective evidence establishing she suffered an injury. On appeal, the Commission found objective evidence of an injury, vacated the ALJ's decision, and remanded the case to the ALJ to make specific findings of fact and conclusions of law concerning all elements of compensability. On remand, the ALJ found appellant had failed to prove by a preponderance of the evidence that she suffered a compensable injury while employed by YES. With respect to Dr. Hayes's diagnosis of bilateral carpal tunnel syndrome, the ALJnoted that Dr. Hayes had stated that the cause of the injury was unknown. The ALJ further found that Dr. Carle's opinion that appellant's epicondylitis resulted from her employment with YES was not supported by the evidence. The ALJ specifically noted the limited amount of time appellant worked for YES as support for this conclusion. On appeal, the Commission adopted the ALJ's findings of fact and affirmed the ALJ's conclusion that appellant failed to establish she suffered a compensable injury.

On appeal, appellant claims that she was entitled to medical treatment whether or not her injury was compensable and that YES did not have the right to terminate the course of treatment recommended by Dr. Hayes. Appellant further contends that the evidence does not support the Commission's finding that her injury was not compensable. Finally, appellant argues that she is entitled to temporary total disability benefits until she is able to work consistently without pain and discomfort.

On review of workers' compensation cases, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Workers' Compensation Commission and will affirm the Commission's ruling if there is any substantial evidence to support the findings made. Beaver v. Benton County, 66 Ark. App. 153, 991 S.W.2d 618 (1999). Substantial evidence is that relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Patterson v. Frito Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999). If reasonable minds could reach the Commission's conclusion, its decision must be affirmed. Min-Ark Pallet Co. v. Lindsey, 58 Ark. App. 309, 950 S.W.2d 468 (1997).

Appellant's first point on appeal is that pursuant to Arkansas Code Annotated § 11-9-508 (Repl. 1996), YES is responsible for providing medical services to her as an injured employee regardless of whether she suffered a compensable injury. Section 11-9-508(a) provides:

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.

This court has stated, however, that an employer is generally responsible for medical expenses only when an employee has suffered a compensable injury. Southern Hospitalities v. Britain, 54 Ark. App. 318, 925 S.W.2d 81 (1996) (citing Ark. Code Ann. §11-9-102(5)(F)(i) (Repl. 1996)). Therefore, we conclude that appellant is only entitled to workers' compensation if we determine that she has suffered a compensable injury.

When a claimant requests benefits for an injury characterized by gradual onset, section 11-9-102(5)(A)(ii) controls, defining "compensable injury" as follows:

(5)(A)(ii) 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 the 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[.]

The supreme court has interpreted this statutory language such that a claimant is notrequired to prove that her condition was caused by rapid repetitive motion when the diagnosis is carpal tunnel syndrome. Kildow v. Baldwin Piano and Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). However, the other statutory requirements to prove a compensable injury must be met. Specifically, a claimant 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; (3) the injury was a major cause of the disability or need for treatment; and (4) the injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(5). The claimant bears the burden to prove these elements by a preponderance of the evidence. Id.

In the present case, appellant has been diagnosed with two separate conditions, bilateral carpal tunnel syndrome and epicondylitis. The evidence revealed that the doctor who diagnosed appellant as suffering from bilateral carpal tunnel syndrome stated that the cause of her injury was "unknown." Based on this statement there is no evidence that appellant suffered an injury arising out of and in the course of her employment. Therefore, we conclude substantial evidence supports the Commission's determination that if appellant does indeed suffer from carpal tunnel syndrome, that injury was not compensable.

Appellant has also been diagnosed as suffering from epicondylitis. The only evidence connecting the pain in appellant's elbow injury to her employment with YES is her testimony and Dr. Carle's evaluation. The Commission concluded that Dr. Carle's opinion that appellant's work activity with YES caused her epicondylitis was not supported by theevidence in light of the fact that she only performed the job at issue for six days. In Mosley v. McGehee Sch. Dist., 36 Ark. App. 11, 816 S.W.2d 891 (1991), we stated that the Commission is not bound by medical opinion, even if that opinion is uncontroverted. Because of the deference we give to the Commission to determine the credibility of witnesses, we conclude that the Commission's finding that appellant's epicondylitis was not compensable is supported by substantial evidence.

Because we have concluded that the Commission's finding that appellant did not suffer a compensable injury is supported by substantial evidence, we also affirm the Commission's finding that she is not entitled to temporary total disability benefits.

Affirmed.

Robbins, C.J., and Hart, J., agree.