Freeman v. Con-Agra Frozen Foods

JOHN B. ROBBINS, Chief Judge. In our original opinion in this appeal, Freeman v. Con-Agra Frozen Foods, 70 Ark. App. 306, 19 S.W.3d 43 (2000), we reversed the Workers’ Compensation Commissions decision that denied appellant benefits. Appellee timely filed a petition for rehearing and argues that we erroneously evaluated the evidence and came to an erroneous conclusion. In light of two supreme court cases that were decided after we issued our original opinion, we conclude that appellee’s petition is well founded. We have granted the petition for rehearing and reinstate the appeal. In this substituted opinion, we affirm the Commission. The evidence presented by the parties revealed the following facts, and we reiterate them here. Appellant testified that she began working for appellee on November 27, 1995, assembling frozen dinner trays. She generally worked more than forty hours per week. Fler duty on the moving production fine was to place the correct portion of food into the frozen dinner tray, making certain that there was neither too much nor too little food in each triangle portion of the tray. Two to four employees worked each line, usually with two on each side of the line. In her estimation, she was responsible for filling approximately sixty-five dinners per minute. The employees rotated the duties of putting in a vegetable, an ice-cream scoop of rice, or the frozen meat. This was a job that required extensive use of her hands, wrists, and arms. Her symptoms began about six months prior to leaving her employment, and she described the symptoms as aching and numbness in her hands and elbows accompanied by a loss of grip strength. The aching was severe enough to wake her at night. At that time, she was in her late forties. She admitted that she did not notify her employer of these problems until she left on November 21, 1997, because she thought that aching and pain was just “part of the job.” On that date, she testified that before she reported to work, she was at home and, while wiping up tea that she had spilled on the kitchen counter, she experienced a shooting pain in her wrists. When she arrived at work that day, she reported to the nurse’s station and requested that they wrap her wrists. After being on the job for about an hour, she could not work any longer due to the pain. She was sent, not to the company doctor, but to her family physician. She consulted with her physician, Dr. Jones, and his notes indicated a patient history of these problems for the past two to three months with an increase in the last week or two. Nerve conduction studies confirmed that she had bilateral carpal tunnel syndrome, worse on the left than the right. Fie diagnosed her with bilateral carpal tunnel syndrome and bilateral “tennis elbow.” His notes dated November 25, 1997, stated “[t]his overuse syndrome type picture is consistent with the job description she gives me.” Appellant reported to her employer that these conditions were work-related after her diagnosis by Dr. Jones. Appellee contested the claim since appellant had not initially reported that her symptoms were related to her work. Appellant completed an application for employer-sponsored disability, and in those forms she indicated that her condition was work-related but that she was receiving no benefits. Appellant testified that the insurance coordinator at Con-Agra informed her not to fist the injury as work-related, or she would not receive disability insurance benefits. In her visits for medical care, she assigned benefits under her group medical plan. She was referred to Dr. Nix, a Little Rock orthopedic surgeon, who concurred in Dr. Jones’s diagnosis. After unsuccessful conservative treatment, Dr. Nix performed carpal tunnel release on January 2, 1998. She continued to experience problems with the A-l pulley on the right thumb, and Dr. Nix performed a release of the A-l pulley on April 21, 1998. Along with her surgeries, appellant underwent a course of physical therapy to restore the use of her hands and elbows. In response to a letter from appellant’s counsel, Dr. Nix categorized appellant’s problems as “usage related type injuries, often associated with repetitive motion and are most commonly seen in women.” However, “whether this particular repetitive usage is associated with production fine work or other outside activities, I cannot comment on with a reasonable degree of medical certainty. I expect your investigation could help clarify this.” She was released to return to work on May 21, 1998, and continued in that employment until she found other work on October 12, 1998. Appellant denied engaging in any other rapid or repetitive activity and denied that she had any other injuries to her hands or arms before she developed carpal tunnel syndrome and tennis elbow. Appellant sought benefits asserting that these conditions arose out of and in the course of her employment with appellee Con-Agra Frozen Foods. Appellant contended that because of her overuse syndrome that developed over her two-year tenure as an assembly line employee, she had to discontinue working on November 21, 1997, was temporarily totally disabled until May 21, 1998, and was entitled to medical benefits for treatment of her conditions. Appellee contended that appellant’s injuries were not causally related to her work and that her conditions were not proven to be related within a reasonable degree of medical certainty. The administrative law judge and the Commission concluded that these conditions did not arise out of her employment. The Commission, which adopted the opinion of the ALJ, found that appellant failed to carry her burden of proof to demonstrate a causal connection between her employment and her injury because she did not indicate that her symptoms were work-related until after she had seen her family physician and realized that her treatment might include seeing a specialist and undergoing surgery. In addition, the Commission found it significant that appellant experienced a dramatic increase in symptoms at home while wiping her kitchen countertop, and it was only after that incident that she could no longer work. The Commission also noted that Dr. Nix declined to render an opinion on the nexus between her condition and her work, and Dr. Jones’s notes, while stating that her conditions were “consistent with” her job duties, were barren of any report of the kitchen-cleaning incident. Therefore, the Commission denied benefits. When we review a decision of 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 affirm if the decision is supported by substantial evidence. White v. Frolic Footwear, 59 Ark. App. 12, 952 S.W.2d 190 (1997). Substantial evidence is that evidence a reasonable mind might accept as adequate to support a conclusion. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). A decision of the Commission is reversed only if we are convinced that fair-minded persons using the same facts could not reach the conclusion reached by the Commission. Id. In our review, we recognize that this court defers to the Commission in determining the weight of the evidence and the credibility of the witnesses. Id. The issue is not whether we may have reached a different conclusion or whether the evidence might have supported a contrary finding. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996). Where the Commission’s denial of relief is based on the claimant’s failure to prove entidement to benefits by a preponderance of the evidence, the substantial-evidence standard of review requires affirmance if the Commission’s opinion displays a substantial basis for the denial of relief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). When a claimant requests benefits for an injury characterized by gradual onset, Ark. Code Ann. § 11-9-102(5) (A) (ii) (Repl. 1996) 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 not required 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). We recognize that epicondylitis, or “tennis elbow,” has not been designated as a specifically recognized injury under “rapid repetitive motion.” Consequently, appellant bears the burden of proving that rapid repetitive motion caused the bilateral tennis elbow. A claimant must also 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 which 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). Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Ark. Code Ann. § ll-9-102(16)(B) (Repl 1996). We hold that there is a substantial basis for the denial of relief in this case. On June 8, 2000, the supreme court decided Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000). This decision narrowed the acceptable language that will support a causal connection between the injury and the work within a reasonable degree of medical certainty. Therein the supreme court reversed our decision, Frances v. Gaylord Container Corp., 69 Ark. App. 26, 9 S.W.3d 550 (2000), and announced that: [Ejxpert opinions based upon “could,” “may,” or “possibly” lack the definiteness required to meet the claimant’s burden to prove causation, phasis added.] Accordingly, we modify and overrule the Court of Appeals’ decision in Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), to the extent that it may be read to permit expert opinion evidence under section 11-9-102(16)(B) to be satisfied by the use of terms such as “can,” “could,” “may,” or “possibly.” We also note that although Atwood seemingly rejects an expert’s use of the word “could” when stating an opinion within a reasonable medical certainty, it validates an expert’s use of the word “can.” Given this inherent contradiction, ... we apply our limited overruling of Atwood retroactively. The supreme court handed down yet another decision on this subject on July 7, 2000. Crudup v. Regal Ware Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). In it the supreme court reversed our decision upon a grant of review. In Crudup v. Regal Ware Inc., 69 Ark. App. 206, 11 S.W.3d 567 (2000), we had held that the following physician’s opinion on causal connection had been stated within a reasonable degree of medical certainty: I cannot definitively state that the work he performs at Regal Ware is a primary cause of carpal tunnel syndrome, however ... it is likely this activity could precipitate, or aggravate, his symptoms. Id., 69 Ark. App. at 209. (Emphasis added.) In reversing our decision, the supreme court stated that this physician’s opinion was nothing more than a statement of theoretical possibility and therefore lacked the requisite definiteness. We recognize that the supreme court rendered an earlier opinion, Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999), which supported our first opinion in this case. Ms. VanWagner suffered an injury to her chest and breast implant, and the Commission found that she had proven a causal connection between her injury and her employment. The supporting evidence was her testimony of what happened coupled with her doctor’s notes that substantiated that the right implant was displaced and ruptured. The employer, Wal-Mart Stores, Inc., appealed, arguing that medical evidence was necessary not only to establish the existence of any injury, but also to establish that a work-related accident caused the injury. Therefore, Wal-Mart contended that objective medical evidence of causation is elemental to proper proof of a compensable injury. The supreme court disagreed, holding that objective medical evidence is necessary to establish the existence and extent of an injury but is not essential to establish the causal relationship between the injury and a work-related accident. The supreme court specifically adopted our reasoning in Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997), and Aeroquip, Inc. v. Tilley, 59 Ark. App. 163, 954 S.W.2d 305 (1997), and stated: The plethora of possible causes for work-related injuries includes many that can be established by common-sense observation and deduction. To require medical proof of causation in every case appears out of line with the general policy of economy and efficiency contained within the workers’ compensation law. To be sure, there will be circumstances where medical evidence will be necessary to establish that a particular injury resulted from a work-related incident but not in every case. 337 Ark. at 447. We agree with this analysis. Flowever, we are bound to apply the most recent statement of the law as announced by our supreme court. See, e.g., Alcoa v. Carlisle, 67 Ark. App. 61, 992 S.W.2d 172 (1999); Davis v. State, 60 Ark. App. 179, 962 S.W.2d 815 (1998). Consequently, unless VanWagner was overruled by implication in Frances and Crudup, it appears that the present state of the law in this area could be summed up as follows: Medical evidence is not ordinarily required to prove causation, i.e., a connection between an injury and the claimant’s employment (VanWagner), but if an unnecessary medical opinion is offered on that issue, the opinion must be stated within a reasonable degree of medical certainty. Qualifying words such as “could,” “may,” “possibly,” and “likely” will cause the opinion to lack the requisite certainty and will defeat the claimant’s claim. Applying these mandates from our supreme court, we hold that appellant’s family physician’s opinion, wherein he opined that appellant’s work was “consistent with” her injuries, does not meet the requisite definiteness to prove a causal connection between the injury and the work. We need not address whether Ms. Freeman’s testimony on the causation issue was credible. Affirmed. Jennings, Griffen, and Meads, JJ., agree. Bird and Stroud, JJ., dissent.