JUDY SMITH V. PARKER SEAL CO., ET AL
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IMPORTANTNOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PR OCED URE PR OMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITY INANY OTHER
CASE INANY COURT OF THIS STATE.
RENDERED : AUGUST 25, 2005
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2004-SC-0257-WC
JUDY SMITH
V
APPEAL FROM COURT OF APPEALS
2003-CA-1982-WC
WORKERS' COMPENSATION BOARD NO . 94-17471
PARKER SEAL COMPANY ; HON . IRENE STEEN,
ADMINISTRATIVE LAW JUDGE ; WORKERS'
COMPENSATION BOARD ; ROBERT L. WHITTAKER,
DIRECTOR, DIVISION OF WORKERS'
COMPENSATION FUNDS
APPELLEES
MEMORANDUM OPINION OF THE COURT
REVERSING AND REMANDING
In a reopening proceeding, the Administrative Law Judge (ALJ) determined that
the claimant's initial award was ambiguous regarding the cause of her thumb joint
arthritis, that work-relatedness must be determined at reopening, and that the more
persuasive evidence attributed the condition to her age rather than her work. The
claimant maintained on appeal that the cause of the condition was decided favorably in
the initial proceeding, but the Court of Appeals and the Workers' Compensation Board
(Board) affirmed . We disagree .
The claimant began working for the defendant-employer in March, 1969, as a
press operator . She stated that the job required her to operate five presses that made
0-rings . After each ring cured, she used an air hose with a thumb trigger to blow it off
the press . She generally used her right hand to operate the press and to cut excess
rubber from the ring molds with scissors . She had also used her right hand to operate
the air hose until it became painful, at which point she tried to use her left hand some.
That was awkward because the press stations were set up for right-handed work.
In 1992, after 23 years at this job, the claimant experienced left hand pain and
pain and numbness in her right hand and thumb. Dr. Travis diagnosed carpal tunnel
syndrome in 1994. He later referred her to Dr. Einbecker, who performed a left carpal
tunnel release in January, 1995 . She testified that the surgery relieved the numbness in
her left hand, but she still had mild pain. She also had a cramping, drawing pain that
ran up her thumb into her arm . It was worse on the right and increased with use. She
stated that she had right shoulder pain and that she was considering surgery on her
right hand due to pain.
On May 3, 1994, Dr. Einbecker diagnosed bilateral carpal tunnel syndrome that
was greater on the left side. He also diagnosed bilateral CIVIC thumb joint arthritis,
noting that x-rays revealed significant degenerative arthritis that was worse on the right
side . In January, 1995, Dr. Einbecker performed a left carpal tunnel release and
injected the right wrist with cortisone . The claimant returned to work three months later .
On June 6, 1995, Dr. Einbecker assigned a two percent (2%) whole-body impairment
due to the left carpal tunnel release. He noted that he expected the claimant to develop
tendinitis in the left forearm and the CIVIC joint of the right thumb. He prescribed
Relafen and indicated that he would see her as needed. The claimant next sought
treatment on March 18, 1997, complaining of pain in her thumbs . Dr. Einbecker noted
that the condition resulted from "her several decades of working at the company with
her hands ." He continued to prescribe anti-inflammatory medication and stated that he
would see her "on an as-needed basis ."
Dr. Einbecker characterized the CIVIC joint arthritis as a "pre-existing condition"
that was aroused by her work. He further explained that the referenced pre-existing
condition was a result of the natural aging process and the propensity for women, in
general, to develop arthritis in this joint rather than a diagnosed pre-existing condition
specific to this claimant .
Dr. Travis testified regarding EMG evidence of early carpal tunnel syndrome in
the right wrist and moderate carpal tunnel syndrome in the left. He also noted a positive
grind test in both thumbs . His notes did not address causation .
Dr. Zerga performed NCWEMG studies in March, 1994. He testified that the
claimant had left-sided carpal tunnel syndrome that had been successfully treated with
surgery. He attributed the condition to the repetitive nature of her work and stated that it
presently accounted for a 4% impairment . He apportioned the impairment equally to
"pre-existing active" and "pre-existing dormant" arthritis in the left wrist and at the base
of the thumb . He stated that the dormant portion was aroused into disability by the
claimant's 24 years of work. Dr. Zerga found no significant evidence of carpal tunnel
syndrome on the right. He attributed all of the claimant's right hand complaints to a
non-work-related injury in her youth that had progressed over time, causing arthritis and
a painful thumb condition .'
The claimant's application for benefits alleged work-related cumulative trauma
injuries as of March 12, 1994, in the form of "bilateral carpal tunnel syndrome; upper
extremity problems including CIVIC; thumb joint arthritis, shoulder pain and cervical
spondylolisthesis ." When the claim was heard, the cause of the left carpal tunnel
syndrome was undisputed . In her brief to the ALJ, the claimant argued that her other
"upper extremity conditions," including carpal tunnel syndrome and thumb joint arthritis
in her right hand, were due to her many years of repetitive work. She requested
' The claimant testified that her right middle finger was cut and part of her index finger was amputated in
an accident that occurred during her youth. Although she had undergone several surgeries on her
fingers, she had required no treatment since she was 17 years old.
3
permanent, partial disability benefits due to "upper extremity overuse syndrome" and a
reimbursement for mileage expenses incurred when obtaining treatment from Dr.
Einbecker. At the hearing, she testified that it was forty miles from her house to his
office and submitted a list of visits from May 3, 1994, through January 2, 1995 .
The employer's brief noted the stipulation that the left carpal tunnel syndrome
was work-related . It contested "the work-relatedness of the [claimant's] claimed right
hand arthritis, shoulder problems and neck complaints ." Furthermore, it asserted that
no physician had related the claimant's right carpal tunnel syndrome to her work.
The Opinion and Award of July 10, 1997, noted the parties' stipulation to workrelated left carpal tunnel syndrome. After reviewing the medical evidence, the ALJ
stated, in pertinent part, as follows :
The first issue to be addressed by the [ALJ] is the work-relatedness
of the Plaintiff's right hand, arthritis, shoulder, and neck conditions.
Dr. Einbecker found that the Plaintiff's problems in her right arm
were caused in part by the Plaintiff's work activities . He does not,
however, discuss the Plaintiff's shoulder and neck conditions . Dr.
Zerga specifically found that these conditions were not due to the
Plaintiff's work. Dr. Zerga's opinions regarding the neck and
shoulder conditions are apparently unrebutted . Based on this
evidence, the Court finds that the Plaintiff's problems with her right
and left arms are found to be work-related, while the Plaintiff's neck
and shoulder conditions are found to not be work-related .
The ALJ dismissed the claim for permanent income benefits on the ground that the
claimant had failed to show an injury of appreciable proportion . Although the ALJ
determined that the claimant's treatment with Dr. Einbecker had been for her workrelated conditions and awarded a mileage reimbursement, the award made no
reference to future medical expenses .
In a petition for reconsideration, the claimant noted the parties' stipulation to a
work-related left wrist injury (carpal tunnel syndrome) and the ALJ's finding that both the
left and right "arm" injuries were work-related . Also noting that KRS 342.020(1) required
the employer to pay for reasonable medical treatment of injuries that were found to be
work-related, the claimant requested a clarification of her entitlement to such medical
expenses . She suggested that page 9 of the Opinion and Award be amended to add
the following language :
The Plaintiff, Judy Smith, shall recover of the Defendant-Employer
and/or its insurance carrier, such medical, surgical, and hospital
expenses as may reasonably be required for the treatment of her
occupational injury, including her carpal tunnel conditions, and
CIVIC joint arthrosis .
Responding to the motion, the employer asserted that there was no proof of
work-related right-sided carpal tunnel syndrome. On that basis, it maintained that the
request for a finding that medical expenses related to right-sided carpal tunnel
syndrome were compensable should be overruled . The order of August 8, 1997,
rejected the employer's assertion but also failed to list the specific conditions that were
compensable as the claimant had requested. It stated, in pertinent part, as follows :
[T]he Plaintiff's petition for reconsideration is SUSTAINED to the
extent that the Plaintiff's problems with both her right and left arms
were previously found to be work-related and therefore any medical
expenses associated with those work-related conditions shall be
compensable pursuant to KRS 342.020.
Although the claimant's condition continued to worsen after she received the
award, she continued working for the defendant-employer until May, 2001, when she
underwent surgery on the right wrist and thumb. The employer reinstituted voluntary
temporary total disability benefits and also paid medical benefits. On July 9, 2001, the
claimant moved to reopen her claim but requested that the matter be held in abeyance
until after she recovered from surgery that was planned on the left thumb. Her motion
was granted, and the claim was held in abeyance until September, 2002. In the
reopening proceeding, the claimant testified that the problems in her right wrist had
resolved following surgery but that the problems in her thumbs had not.
Dr. Einbecker continued treating the claimant after her 1997 award . He
performed the subsequent surgeries . Dr. Einbecker noted that the repetitive activities
required in her 32 years' employment were stressful to her hands, wrists, and arms. In
his opinion, the conditions he had treated were due to her work, particularly the carpal
tunnel syndrome . When deposed, he explained that there was an element of aging in
CIVIC joint arthritis and that the CIVIC joint can be a problem for many women. Although
the condition was degenerative and was likely to be pre-existing for a woman of the
claimant's age, he thought that it was "certainly aggravated by the work activities if not
accelerated." He assigned a 16% impairment for bilateral thumb arthritis .
Dr. Burgess evaluated the claimant. He noted that the carpal tunnel releases
had been successful. In contrast, the thumb surgeries had improved function but failed
to restore it entirely . Although he thought that the carpal tunnel syndrome was work
related, he characterized the degenerative arthritis in the claimant's thumbs as being
"an age-related abnormality and not related to her work activities ." Like Dr. Einbecker,
he assigned a 16% whole-person impairment to the thumb conditions .
After reviewing the evidence, the AL attempted to interpret the 1997 award to
determine precisely what upper extremity problems had been found to be work-related .
The award noted the parties' stipulation that the left carpal tunnel syndrome that
became manifest on March 12, 1994, was work-related . It listed work-relatedness of
the "right hand, arthritis, shoulder, and neck conditions" as being contested. It clearly
found the neck and shoulder conditions not to be work-related, stated that the "problems
with both arms" were work-related, but failed to specify whether those arm problems
included the thumb joint arthritis as well as carpal tunnel syndrome . The ALJ concluded
that the carpal tunnel syndrome, which had been diagnosed in both of the claimant's
forearms, had been found to be work-related . The AU explained that the order on
reconsideration did not adopt the language referring to thumb joint arthrosis that the
claimant had offered in her petition for reconsideration . Like the award, it referred only
to problems with her "arms ." Noting that carpal tunnel syndrome occurs in the wrists
and forearms, the AU concluded that the failure to adopt the proffered language and
the continued use of the term "arms" signified that the term referred only to the carpal
tunnel syndrome . The work-relatedness of the thumb joint arthritis was not decided.
Turning to the evidence, the AU noted Dr. Einbecker's and Dr. Burgess's
testimony that thumb joint arthritis was common in women of the claimant's age. The
AU acknowledged Dr. Einbecker's testimony that the condition was aggravated by the
claimant's work but pointed out that a condition was not necessarily work-related simply
because it was aggravated by work. Relying on Dr. Burgess, the AU determined that
the claimant's thumb joint arthritis was not work-related, that her impairment due to
carpal tunnel syndrome had not increased, and that the reopening must be dismissed .
The claimant relies on the doctrine of the finality of judgments, also known as the
doctrine of res iudicata, for the principle that once the rights of the parties have been
finally decided, litigation should end . It applies where there is an identity of parties and
causes of action, and the previous action decided the matter presently at issue on the
merits . See Slone v. R & S Minin
Inc . , 74 S.W.3d 259 (Ky. 2002). The application of
the doctrine to workers' compensation decisions is based on the principle that because
there is an extensive procedure for taking appeals, a final decision should not be
disturbed absent fraud, mistake, or other very persuasive reason that would warrant
reopening . Id. at 261 .
The parties in the present case are identical to those in the 1997 proceeding, and
the claimant raised and litigated the compensability of the arthritic thumb condition in
that proceeding . She asserted that it was partially disabling, but there was no evidence
of an impairment or a disputed medical expense at that point. She notes that the
decision contained no finding that the thumb condition was not compensable . She
argues that although it contained no explicit finding regarding the cause of the condition,
the parties understood it to mean that the condition was compensable . Hence, the
employer paid for the surgeries on her thumbs. She asserts that any ambiguity in the
decision should be construed in her favor.
The claimant has cited no authority for the proposition that an employer's failure
to contest a medical expense under KRS 342 .020 amounts to an admission that the
underlying condition is work-related. As the Board and the Court of Appeals noted, it
was the claimant's burden in the initial proceeding to show that her thumb joint arthritis
was work-related. The 1997 opinion and award failed to address specifically the cause
of her right carpal tunnel syndrome and arthritis although the decision listed both
conditions as being matters to be considered . The order on reconsideration sustained
her petition "to the extent that the [claimant's] problems with both her right and left arms
were previously found to be work-related," rendering medical expenses for those
conditions compensable . However, the order failed to respond to her request for a
more specific finding regarding the arthritic condition, implying a rejection of her claim
for the condition or perhaps the perceived lack of a need to be more specific because
both the carpal tunnel and thumb were included within the term "arms." Perhaps the
failure to make more specific findings was only an oversight . In any event, because the
arthritic condition was a subject of the initial claim, the AU who considered the
reopening should have concluded that the award and the order on rehearing were
intended to include all conditions not specifically excluded or denied .
It is not unreasonable to conclude, and we do, that AU Smith would have
undoubtedly overruled the claimant's Petition for Reconsideration as it related to
medical expenses had he intended in his Award for the thumbs to be excluded .
Instead, the ALJ sustained the Petition and restated the fact that the "arms" were
previously found to be work related . This order on the claimant's Petition for
Reconsideration once again reveals that AU Smith used the term "arms" to refer to
both carpal tunnel syndrome and the CIVIC thumb joint arthritis. Because AU Smith
found the claimant's thumbs and carpal tunnel syndrome to the work-related condition in
1997, this issue was improperly readdressed by AU Steen when this workers'
compensation claim was reopened in 2001 . The thumbs are part of the hand, the hand
is part of the forearm and the forearm is part of the arm . In our opinion, there is no
other way to read the ALJ's previous reference to "arms."
Where there is an identity of parties and causes of action, and the previous
action decided the matter presently at issues on the merits, the matter should end. See
Slone v. R & S Mining, Inc ., 74 S .W .3d 259 (Ky. 2002). The application of the doctrine
of workers' compensation decisions is based on the principle that because there is an
extensive procedure for taking appeals, a final decision should not be disturbed absent
fraud, mistake, or other persuasive reason that would warrant reopening. Id. at 261 .
The parties in the present case are identical to those in the 1997 proceeding, and
the claimant raised and litigated the compensability of the arthritic thumb condition in
that proceeding . Why else would the compensation carrier have continued to pay for
treatment and surgery, unless it also believed the matter had been decided . The
answer is simply res judicata .
For these reasons, we reverse the decision of the Court of Appeals and remand
the matter to the AU for further proceedings .
Lambert, C.J. ; Graves, Scott, and Wintersheimer, JJ ., concur, Cooper, J .,
dissents by separate opinion with Johnstone and Roach, JJ ., joining that dissent.
COUNSEL FOR APPELLANT :
Susan Dabney Luxon
Emmons, Luxon, Puckett & Shannon, P .S .C .
114 N. Second Street
Richmond, KY 40475
COUNSEL FOR APPELLEE,
PARKER SEAL COMPANY:
Ronald J . Pohl
Picklesimer, Pohl & Kiser, P .S.C.
1500 First National Building
167 W. Main Street
Lexington, KY 40507
COUNSEL FOR APPELLEE,
ROBERT L. WHITTAKER :
David W. Barr
Workers' Compensation Funds
1047 U.S . Hwy. 127 South, Suite 4
Frankfort, KY 40601
RENDERED : AUGUST 25, 2005
NOT TO BE PUBLISHED
,*uyrrmr 1 10urf of ~R:enfurhV
0
2004-SC-0257-WC
JUDY SMITH
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
2003-CA-1982-WC
WORKERS' COMPENSATION BOARD NO. 94-17471
PARKER SEAL COMPANY ; HON. IRENE
STEEN, ADMINISTRATIVE LAW JUDGE ;
WORKERS' COMPENSATION BOARD;
ROBERT L. WHITTAKER, DIRECTOR,
DIVISION OF WORKERS'
COMPENSATION FUNDS
APPELLEES
DISSENTING OPINION BY JUSTICE COOPER
Appellant, Judy Smith, filed her application for adjustment of claim on December
10, 1996, claiming cumulative trauma injuries to her neck, shoulders, wrists, and
thumbs due to repetitive work activities . She had undergone successful surgery for left
carpal tunnel syndrome and was anticipating surgery for right carpal tunnel syndrome.
Administrative Law Judge (ALJ) Donald G . Smith issued an opinion and award, as
amended by order on petition for rehearing, that awarded no disability benefits, but did
award medical benefits for "problems with both her right and left arms." There was no
appeal . On July 11, 2001, Appellant filed a petition to reopen under KRS 342 .125,
seeking medical expenses and disability benefits following surgery on her right thumb
and anticipating surgery on her left thumb to relieve pain related to carpometacarpal
(CIVIC) joint arthritis . AU Irene Steen issued an opinion dismissing the petition to
reopen . The Workers' Compensation Board unanimously affirmed the dismissal, and
the Court of Appeals unanimously affirmed the opinion of the Board. The majority of
this Court now reverses both ALJs, the Board, and the Court of Appeals by substituting
its own findings of fact for those of ALJs Smith and Steen . For that reason, I dissent.
The standard of review when a workers' compensation claimant loses at the AU
level is whether the evidence presented compelled a different result than that reached
by the ALJ .
If the fact-finder finds against the person with the burden of proof,
his burden on appeal is infinitely greater. It is of no avail in such a case to
show that there was some evidence of substance which would have
justified a finding in his favor. He must show that the evidence was such
that the finding against him was unreasonable because the finding cannot
be labeled "clearly erroneous" if it reasonably could have been made .
Thus, we have simply defined the term "clearly erroneous" in cases
where the finding is against the person with the burden of proof. We hold
that a finding which can reasonably be made is, perforce, not clearly
erroneous . A finding which is unreasonable under the evidence presented
is "clearly erroneous" and, perforce, would "compel" a different finding.
Special Fund v . Francis, 708 S .W.2d 641, 643 (Ky. 1986) . "Compelling evidence is
evidence so overwhelming that no reasonable person could reach the conclusion of the
AU." Neace v. Adena Processing , 7 S .W.3d 382, 385 (Ky. App. 1999) (internal citation
and quotation omitted) . When there is conflicting evidence, it cannot be said that there
is compelling evidence . Cf . City of Bowling Green v . Hunt, 516 S.W .2d 647, 648 (Ky.
1974) ("In view of the contradictory relevant evidence, it is our view that in this case a
reviewing court cannot properly say that the evidence for the appellees was so
conclusive and compelling . . . that the decision of the legislative body can be declared
arbitrary.") . Where the evidence conflicts, the issue essentially becomes a choice of
whom and what to believe, and the authority "to determine the quality, character and
substance of the evidence" rests solely with the ALJ . Paramount Foods, Inc. v.
Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985) . The same principle applies with respect to
conflicting medical evidence . Square D Co. v. Tipton , 862 S .W.2d 308, 309 (Ky. 1993) ;
Pruitt v. Bugg Bros. , 547 S.W.2d 123, 124 (Ky. 1977) .
At the initial hearing before AU Smith, most of the testimony centered around
Appellant's claims of bilateral carpal tunnel syndrome and neck and shoulder pain . The
CIVIC joint arthritis was diagnosed as a preexisting condition unrelated to the carpal
tunnel syndrome. Dr. Einbecker testified that this preexisting condition was "aroused"
by Appellant's work activities, whereas Dr. Zerga testified that the only condition related
to Appellant's work was her left carpal tunnel syndrome and that all of the problems in
her right hand were related to a childhood accident in which the knuckle of her right
middle finger was crushed and her right index finger partially amputated . He also
testified that the neck and shoulder pain was not work related . ALJ Smith found that
"the Plaintiff's problems with her right and left arms" were work related and that her neck
and shoulder problems were not work related . He made no specific finding with respect
to the CIVIC joint arthritis. He also found that Appellant had not suffered an injury of
appreciable proportions but ordered that Appellant be reimbursed for her travel
expenses to and from Dr. Einbecker's office .
Appellant filed a petition for reconsideration, specifically requesting AU Smith "to
amend Page 9 of the Opinion and Award to add the following language as Paragraph 3
of the Award :
'The Plaintiff, Judy Smith, shall recover of the Defendant-Employer and/or
its insurance carrier, such medical, surgical, and hospital expenses as
may reasonably be required for the treatment of her occupational injury,
including her carpal tunnel conditions, and CIVIC joint arthrosis [sic] .'"
(Emphasis added.) Instead, on August 8, 1997, AU Smith entered the following order:
3
IT IS HEREBY ORDERED AND ADJUDGED that the Plaintiff's
petition for reconsideration is SUSTAINED to the extent that the Plaintiff's
problems with both her right and left arms were previously found to be
work-related and therefore any medical expenses associated with those
work-related conditions shall be compensable pursuant to KRS 342.020.
Thus, ALJ Smith did not sustain the petition for reconsideration in its entirety, but
only "to the extent that" it pertained to Appellant's problems with her "arms ." As ALJ
Steen subsequently found, carpal tunnel syndrome typically causes pain in the wrist and
forearm, not in the thumb. Thus, a reasonable interpretation of ALJ Smith's refusal to
award medical expenses for treatment of the CIVIC joint arthritis is that ALJ Smith found
the CIVIC joint arthritis not to be work related .
ALJ Steen, however, gave Appellant the benefit of the doubt by finding that ALJ
Smith had never made a specific finding as to whether the CIVIC joint arthritis was work
related and undertook to make that determination, herself. The medical evidence
presented at the reopening hearing was also conflicting . Dr. Einbecker again testified
that Appellant's preexisting CIVIC joint arthritis was aggravated by her work. Dr.
Burgess, however, testified that CIVIC joint arthritis is common in women 40 to 50 years
old and that a natural progression of arthritis was a natural result and was not activityrelated . Specifically, he testified that the surgeries performed on Appellant's thumbs
were necessitated solely by the natural progression of the arthritis and "not at all related
to any work activity." Based on this evidence, ALJ Steen found that "Plaintiff's thumb
problems are not work related, but that her pre-existing symptoms were merely
aggravated by her work activities and that they are at this time not compensable ." Ky.
Dep't of Workers Claims, Claim No. 94-17471, Opinion & Dismissal 14 (April 8, 2003)
(emphasis added) .
The Workers' Compensation Board affirmed, emphasizing ALJ Smith's rejection
of Appellant's request to specifically find that the CIVIC joint arthritis was compensable :
Since the burden before AU Smith to establish compensability rested with
[Appellant], we can only conclude that by rejecting [Appellant's] offer to
more specifically state the conditions for which compensability was found,
that only those conditions to which there was no question, carpal tunnel
syndrome, could have been found compensable.
Ky . Workers' Comp. Bd., Claim No. 94-17471, Opinion Affirming 9-10 (August 20,
2003) . The Court of Appeals agreed.
While the issue of the compensability of [Appellant's] thumb conditions
was clearly before AU Smith in the original proceeding, his ambiguous
reference to "the problems in [Appellant's] arms" could be interpreted to
include the thumb condition as well as the carpal tunnel in [Appellant's]
wrists. However, we agree with AU Steen and the Board that this
ambiguity was pointed out to ALJ Smith in the original proceeding . AU
Smith specifically rejected [Appellant's] proposed language finding that the
thumb conditions to be [sic] compensable. By failing to address the
compensability of the thumb conditions, it appears that AU Smith
implicitly rejected the claim .
No. 2003-CA-001982-WC, slip op . at 8 (Ky. App. Feb. 27, 2004) .
Now, the majority of this Court rejects both AU Smith's implicit finding of
noncompensability and AU Steen's explicit finding of noncompensability and concludes
that, under the principle of res judicata, AU Steen had no authority to make her finding
because AU Smith had already found that the thumb injuries were work related and,
thus, compensable . The majority's only support for this erroneous conclusion is its own
erroneous finding that "[t]he thumbs are part of the hand, the hand is part of the forearm
and the forearm is part of the arm ." Ante, at
(slip op. at 9). Pursuing that kind of
"hip-bone-connected-to-the-thigh-bone" reasoning, one could just as easily conclude
that the thumb pain was part of the shoulder injury (which is, in fact, a part of the arm)
which AU Smith specifically found not to be work related. Of course, while the thumb is
a part of the hand, it is not a part of the forearm . See Henry Gray, Gray's Anatomv of
the Human Body ยงยง 11 .6.a, 11 .6.b (Warren H . Lewis, ed ., Bartleby .com 20th ed . rev.
2000), at http://www.bartleby .com/10 7. Section 11 .6.a of Gray's identifies the following
as "bones of the upper extremity," i.e. , the arm : clavicle, scapula, humerus, ulna, and
radius (the latter two comprise the forearm) . Section 11 .6.b lists the following as "bones
of the hand": carpus, metacarpus, and phalanges (the thumb is a phalange) . Thus, the
majority opinion's finding of fact that ALJ Smith found the CIVIC joint arthritis to be
compensable, is not only unsupported by compelling evidence, it is anatomically
incorrect.
Accordingly, I dissent.
Johnstone, and Roach, JJ ., join this dissenting opinion .
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