Herbert L. Carlisle, Jr. v. Watkins Motor Lines, Inc. and Liberty Mutual Corporation

Annotate this Case
ca04-982

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA04-982

May 25, 2005

HERBERT L. CARLISLE, JR. AN APPEAL FROM ARKANSAS

APPELLANT WORKERS' COMPENSATION

COMMISSION [F108434]

V.

WATKINS MOTOR LINES, INC.

LIBERTY MUTUAL CORPORATION

APPELLEES AFFIRMED

Wendell L. Griffen, Judge

Herbert Carlisle appeals from the denial of workers' compensation benefits. He argues that the Workers' Compensation Commission erred in determining that he failed to prove that his carpal-tunnel syndrome and ruptured cervical disk were causally related to his work. We hold that the Commission's order contains a substantial basis for its decision denying benefits. Therefore, we affirm the Commission's order.

Because appellant's employer, appellee Watkins Motor Lines, Inc., controverted appellant's claims, a hearing was held before an Administrative Law Judge (ALJ). The following evidence was adduced. Appellant, who was fifty-seven years old at the time of the hearing, was employed as a truck-driver for appellee from 1990 until he resigned on May 9, 2002. Initially, he drove an 18-wheeler tractor-trailer rig cross-country. However, beginning in 1996 or 1997, he primarily drove a bob-truck and was based out of West Memphis, Arkansas. His job consisted of driving the truck and unloading freight weighing between one and one-hundred pounds. Appellant spent approximately half of his time driving in "city traffic," which required the repetitive, manual shifting of gears with his right hand, and approximately half of his time unloading freight, which required the use of both hands. Occasionally, he was required to use a pallet jack or a forklift to deliver the heavier loads. Appellant claims that this work-activity led to his need for treatment for carpal-tunnel syndrome.

In addition, he also alleged that he suffered a specific-incident injury to his neck on July 12, 2001. He testified that three to four months before July 12, 2001, he began experiencing numbness in his hands and arms. Inconsistently, he also said that he experienced numbness in his hands three to six months prior to 2001. Appellant reported his hand and arm problem to Mary Rea, who processed injury claims for appellee. However, he never reported a neck injury to his employer.

Because appellee did not send appellant to a physician, appellant, on his own, sought medical treatment from Dr. James Calandruccio on June 26, 2001. His primary reason for seeking treatment was for pain in his feet, but appellant also reported tingling in his left arm. Appellant reported a medical history of heart disease, hypertension, open-heart surgery, a motor-vehicle accident in 1974 which crushed his left hand (requiring surgery), and an injury to his left foot resulting from a fall, for which he received no treatment. Dr. Calandruccio noted that appellant had experienced progressive problems with his arm over the past several months to a year, and that he had experienced numbness and tingling over his left forearm that radiated into his left shoulder but not his neck.

In addition to appellant's alleged carpal-tunnel injury, he also asserted that he injured his neck on Thursday, July 12, 2001, while he and an employee of the place to which he was making a delivery attempted to unload rolls of labels weighing approximately 400 pounds. The labels were moved onto a pallet jack which hit the "lip" of the dock plate and stopped. At that point, appellant claimed that he felt a "pulling" in his neck unlike any pain he had ever experienced. Appellant was concerned that he was having a heart attack and telephoned his employer. He spoke with Jeff Kennedy, a dispatcher. Appellant told Kennedy that he was hurting, but both parties apparently related the pain to appellant's pre-existing heart condition. Appellant returned the truck and went home. He next reported to work the following Monday or Tuesday.

Before he returned to work, appellant sought medical treatment on July 16, 2001, from Dr. Margaret Todd at the Semmes Murphy Neurologic and Spine Institute in Memphis, Tennessee. During this visit, appellant did not relate an injury of July 12, 2001, and to the contrary, specifically denied any recent injury. Appellant reported pain and numbness in his left upper extremity and that he experienced tingling and pain in his left thumb, forearm, and arm for approximately three months. He further indicated that he felt an "electric-shock-like" sensation that shot through this arm when he coughed. He also reported intermittent neck pain and dull aching in his neck, and back and foot pain. Appellant again relayed his history regarding his prior injuries; however, Dr. Todd indicated that in 1974, appellant suffered a crushed left wrist (instead of his left hand) and torn tendons.

Dr. Todd performed nerve conduction tests and diagnosed appellant with numerous conditions, including bi-lateral carpal-tunnel syndrome, primarily on the left; chronic, intermittent neck and back pain secondary to strain; chronic arteriosclerotic disease; post-myocardial infarction; and hypertension. Nerve conduction studies were performed the same day; the results indicated severe carpal-tunnel syndrome on appellant's left hand and moderate carpal-tunnel syndrome on his right hand.

When appellant returned to work, he reported to Ms. Jackie Whitter, who sent him to see Dr. Richard Clark at the Preventative Medicine Clinic in West Memphis on July 17, 2001. His assessment was as follows: "Pain in left hand radiating from left hand to left shoulder. Numbness in first three fingers of left hand and pains for 2 months. Also some numbness in first 3 fingers of right hand. Went to Semmes Murphy Clinic yesterday becausehe thought he was having a heart attack." Dr. Clark also noted that Dr. Todd had recommended carpal-tunnel release surgery for appellant's left hand. Dr. Clark concurred in the carpal-tunnel diagnosis.

Subsequently, on July 19, 2001, Ms. Rea filled out an injury report, which indicated "Employee experiencing pain in left arm and left hand" and which specified the injury as "carpal-tunnel syndrome."

Appellant was again seen at the Semmes Murphy Clinic, this time by Dr. Stephanie Einhaus, on July 25, 2001. Her impression was as follows:

1. Left carpal-tunnel syndrome. I think that part of his problem is probably because he has fluid retention exacerbating the problem but I am not sure that this can be fixed given his cardiac situation.... I think that he also may have a cervical disk rupture which is contributing some of his left arm pain, particularly the pain that involves the upper arm and neck and the shock-like phenomenon that he experiences when he coughs involving his upper body. I have made sure that he understands that a carpal-tunnel release will not help that condition.

2. I think he also has a peripheral neuropathy which is contributing to some of his pain particularly in his feet and he probably needs to have a B-12 level checked....

Appellee refused to authorize the carpal-tunnel surgery; nonetheless, appellant subsequently underwent a carpal-tunnel release for his left hand on August 1, 2001. During an August 20, 2001 follow-up visit, Dr. Einhaus noted that appellant had experienced significant improvement regarding the pain and numbness in his left hand. However, she also noted that appellant continued "to have pain radiating from his left neck and shoulder into the arm which radiates into the thumb." The procedure provided some relief for appellant's left hand, but he also experienced further pain from what the doctors believed to be scar tissue caused from the surgery. Because of the complications appellant experienced with his left hand, he opted not to have surgery on his right hand.

A CT scan performed on August 13, 2001, revealed a herniated cervical disk. Appellant thereafter had surgery to correct the herniated disk on September 15, 2001. Dr.Einhaus's discharge report stated that appellant presented with

a 3 or 4 month history of left neck, arm and hand pain. The hand pain has lasted the longest. More recently over the past 4-6 weeks, he has had progressive pain that involved his elbow, shoulder and neck. He underwent a carpal-tunnel release initially with good relief of his hand pain, but no help for his arm pain.

Appellant admitted that he failed to report a neck injury to appellee because he thought he was simply experiencing further cardiac symptoms. Nor did he report a neck injury to any of his physicians until September 26, 2001, nearly one month after the cervical surgery, when he reported to Dr. Todd that he developed neck and upper extremity pain after attempting to stop a freezer from falling off of a loading ramp.

Subsequent to appellant's surgeries, on February 13, 2002, Dr. Todd opined that he was totally disabled. Appellant never returned to work after his July 12, 2001 injury, and he resigned on May 9, 2002.

After considering the above evidence and testimony, the ALJ determined that appellant failed to prove the causal relationship between his work and his injuries. He found that the record was "replete with inconsistencies and contradictions" and that appellant "had significant physical problems which pre-existed" his claims. The ALJ further found that, although appellant reported "various physical problems" to co-workers and supervisors, there was no credible evidence that he reported any work-related injuries to his employer. Because appellant provided inconsistent histories regarding his work-related injuries, the ALJ concluded that it would require "sheer speculation and conjecture to attribute the claimant's physical problems to any alleged work-related injuries."

The ALJ relied on the medical evidence regarding appellant's prior conditions and surgeries, as well as those portions of appellant's histories that he felt demonstrated an inconsistent reporting of appellant's symptoms. For example, the ALJ noted that Dr. Einhaus's discharge summary following appellant's cervical surgery reflected that appellant's cervical complaints predated July 12, 2001, the alleged date of the injury. The ALJ further noted that appellant's testimony provided the only evidence of a specific event resulting in a cervical injury and that the medical history and the record as a whole did not support his claim. Accordingly, the ALJ denied benefits. The Commission affirmed and adopted these findings in full, and this appeal followed.

I. Carpal-Tunnel Injury

In reviewing decisions from the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we affirm if the decision is supported by substantial evidence. Whitlach v. Southland Land & Dev., 84 Ark. App. 399, 141 S.W.3d 916 (2004). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. When a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission's opinion displays a substantial basis for the denial of relief. Id. The Commission is not required to believe the testimony of any witness, and it may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999). The Commission may accept or reject medical opinions and determine their medical soundness and probative force. Green Bay Packing v. Barlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999).

Carpal-tunnel syndrome is recognized as a gradual-onset injury; hence, it is not necessary that a claimant prove that his carpal-tunnel injury was caused by rapid, repetitive motion. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). A claimant seeking workers' compensation benefits for a gradual-onset injury must prove by a preponderance of the evidence that: (1) the injury arose out of and in the course of his orher 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. Ark. Code Ann. § 11-9-102(4)(A)(i)(ii) & (E)(ii) (Supp. 2003). Major cause, which is defined as more than fifty percent of the cause, must be established by a preponderance of the evidence. Ark. Code Ann. § 11-9-102 (14)(A) & (B) (Supp. 2003). Furthermore, a compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2003). We affirm the Commission's finding that appellant was not entitled to receive benefits for carpal-tunnel syndrome because he failed to prove that his carpal-tunnel syndrome was causally related to his work and was the major cause of his need for treatment.

Appellant urges as error the Commission's alleged failure to cite evidence to support the conclusion that he did not prove that his carpal-tunnel symptoms arose out of his employment. Lowe v. Car Care Mktg., 53 Ark. App. 100, 919 S.W.2d 520 (1996). Further, he argues that there is no evidence to controvert that he had any carpal-tunnel symptoms prior to the three-to-six month period preceding June 2001 or that he engaged in any other activities that would have caused such a condition. Therefore, he maintains that the only reasonable conclusion is that his carpal-tunnel condition arose out of his employment.

First, Lowe is distinguishable. In Lowe, the Commission relied in full on the ALJ's decision, which itself did not contain sufficient findings of fact to allow this court to determine whether the Commission's decision, in reliance on that opinion, was in error. That is not this case here, however, because the ALJ here clearly specified the facts and medical testimony upon which he based his decision.

Second, the Commission was not required to attribute appellant's condition to his work activities simply because there is no evidence that appellant otherwise engaged in activity that would cause carpal-tunnel symptoms. Appellant misses the point in noting that the ALJ made no finding to support that any of his previous conditions are related to his carpal-tunnel syndrome. It was not the ALJ's or the Commission's burden to prove that appellant's prior conditions were unrelated to his carpal-tunnel syndrome; rather, it was appellant's burden to present sufficient proof so that the Commission would not be required to speculate in order to conclude that his carpal-tunnel syndrome was related to his work and was the major cause of his need for treatment. Appellant's failure to do so is fatal to his claim because conjecture and speculation, however plausible, cannot replace proof. Arkansas Methodist Hosp. v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).

It is true that appellant is not required to show, by objective medical evidence, the causal relationship between his carpal-tunnel symptoms and his work. Wal-Mart Stores, Inc. v. Van Wagner, 337 Ark. 443, 990 S.W.2d 522 (1999). Nonetheless, he is required to prove a causal connection between his carpal-tunnel symptoms and his work. The mere fact that appellant reported a carpal-tunnel injury to appellee did not require the Commission, absent other evidence supporting a causal connection, to find that he proved by a preponderance of the evidence that his carpal-tunnel symptoms were work-related. In the absence of any medical opinion indicating that appellant's carpal-tunnel symptoms was work-related, reasonable minds could have concluded as the Commission did, that appellant failed to prove his symptoms were work-related, particularly where appellant 1) inconsistently reported the onset of his symptoms as occurring from three months to six months as well as several months to one year before he initially sought treatment; 2) had suffered a prior crushing injury to his left hand or wrist; and 3) experienced symptoms that were consistent with symptoms caused by his other conditions, including his cardiac condition and his ruptured disc. Accordingly, we hold that the Commission did not err in determining that appellant failed to prove that his carpal-tunnel symptoms arose out of and in the course of his employment with appellee.

II. Cervical Injury

Noting that the timely reporting of an injury has no bearing on the compensability of a claim, Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998)(overruled on other grounds), appellant asserts that the Commission also erred in rejecting his claim that he suffered a work-related injury to his neck on July 12, 2001, because he failed to timely report such an injury to his employer.

Appellant urges that his failure to report a neck injury to his employer or his doctors was reasonable because he did not realize that he had suffered an additional injury, but thought that he was experiencing continued cardiac symptoms or continued symptoms with his arm and because he reported his pain to his employer's dispatcher, who also believed the pain was cardiac-related. Finally, appellant takes fault with what he sees as the Commission's belief that a claimant's testimony alone cannot establish that a specific-incident injury occurred. Thus, he maintains that the Commission arbitrarily rejected his testimony on that ground.

In order to prove a specific incident injury is compensable, a claimant must prove by a preponderance of the evidence: 1) that the injury arose out of and in the course of employment; 2) that the injury caused the internal and external physical harm to the body resulting in the need for treatment; and 3) that the injury was caused by a specific incident and is identifiable by a time and place of occurrence. In addition, any medical evidence used to establish the existence of the injury must be supported by objective findings. Ark. Code Ann. § 11-9-102(4)(A)(i) & (D).

Again, we hold that substantial evidence supports the Commission's denial of benefits. In essence, the resolution of this issue is a matter of credibility. Appellant is correct that he is not required to prove that he reported the injury to his employer; however, his failure to initially report the injury is a matter of credibility for the Commission to determine. Service Chevrolet, supra. Here, appellant's testimony was not arbitrarily disregarded and his claim does not fail simply because his testimony is the only evidence supporting his claim regarding the occurrence of the injury. Rather, his claim fails because his testimony contradicts the record in that he provided inconsistent information regarding how and when the injury occurred. Contrary to appellant's claim, the record supports that his symptoms caused by his ruptured disk predate the date of his alleged neck injury.

Appellant's testimony contradicted the only history that he provided to a medical professional regarding how the injury occurred. Appellant testified that he injured himself when the pallet jack hit the lip of the dock and abruptly stopped. However, several weeks after cervical surgery he told Dr. Todd that he "first developed his neck and left upper extremity pain after he made a jerking movement attempting to stop a freezer from falling off his loading ramp." Even if appellant did not report the incident to his employer because he thought he was merely experiencing cardiac symptoms, this does not account for the inconsistency between his testimony and the report he gave to Dr. Todd regarding how the injury occurred.

In addition, the record supports that appellant's symptoms that were ultimately related to a ruptured disk predated July 12, 2001, his reported date of injury. On June 26, 2001, Dr. Calandruccio noted that appellant reported progressive numbness and pain in his left arm over the last several months to a year. While Dr. Calandruccio specifically noted no pain in appellant's neck, Dr. Einhaus subsequently opined that appellant's left arm pain was attributable to his ruptured disk.

Moreover, Dr. Einhaus's discharge report, dated September 15, 2001, indicated that appellant had presented with a three- or four-month history of left neck pain. Even if we accept the "date of presentation" as September 15, 2001, and not July 16, 2001, when he first presented to the Semmes Clinic, and even if we accept that appellant's pain began three months prior to that time (the shortest interval), appellant's symptoms would have materialized no later than June 15, 2001, nearly one month prior to his reported date of injury.

We affirm the Commission's denial of benefits for appellant's cervical condition because he cannot establish the causal connection between the July 12, 2001 incident and his ruptured disk.

Bird and Vaught, JJ., agree.