{"id":"alj-H104099-2023-12-28","awcc_number":"H104099","decision_date":"2023-12-28","opinion_type":"alj","claimant_name":"Patricia Davis","employer_name":"Standing Chapter 13 Trustee","title":"DAVIS VS. STANDING CHAPTER 13 TRUSTEE AWCC# H104099 DECEMBER 28, 2023","outcome":"denied","outcome_keywords":["dismissed:1","granted:1","denied:3"],"injury_keywords":["back","wrist","cervical","repetitive","shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/DAVIS_PATRICIA_H104099_20231228.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DAVIS_PATRICIA_H104099_20231228.pdf","text_length":20331,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H104099 \n \nPATRICIA DAVIS, EMPLOYEE        CLAIMANT \n \nSTANDING CHAPTER 13 TRUSTEE, EMPLOYER         RESPONDENT \n \nALL AMERICA FINANCIAL ALLIANCE, CARRIER        RESPONDENT \n \nHANOVER INSURANCE GROUP, TPA          RESPONDENT \n \n \nOPINION FILED 28 DECEMBER 2023 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative  Law \nJudge JayO. Howe on 4 October 2023 in Little Rock, Pulaski County, Arkansas. \n \nMs. Sheila F. Campbell, Attorney-at-Law of North Little Rock, Arkansas, appeared for the \nclaimant. \n \nMr. James  A.  Arnold,  II, Attorney-at-Law  of  Fort  Smith,  Arkansas, appeared for  the \nrespondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 4 October 2023 in Little Rock, Arkansas, after the \nparties  participated  in  a  prehearing  telephone  conference  on 18  April  2023. A subsequent \nPrehearing Order, admitted to the record without objection as Commission’s Exhibit No 1, \nwas entered on that same day. That Order stated the following ISSUES TO BE LITIGATED: \n1. Whether the claimant suffered a compensable injury by way of bilateral carpel tunnel \nsyndrome and cubital tunnel syndrome. \n \n2. Whether  the  claimant  is  entitled  to  temporary  total  disability  (TTD)  from  30  June \n2021 to 31 August 2021. \n \n3. Whether  the  claimant  is  entitled  to reasonable  and  necessary  medical  care  and \nexpenses associated with her claimed compensable injury. \n \n4. Whether the claimant is entitled to a controverted attorney’s fee. \n \n5.   All other issues are reserved. \n\nDAVIS- H104009  \n2 \n \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire responses, \nwere incorporated into the Prehearing Order. The claimant contends: \n1. That she  sustained  a  compensable  injury  of  bilateral  carpal  tunnel  syndrome  and \ncubital  tunnel  syndrome  in  the  course  and  scope  of  her  employment,  with  those \ngradual onset injuries occurring by 8 March 2021. \n \n2. That she is entitled to TTD between 30 June 2021 and 31 August 2021. \n \n3. That she is entitled to medical benefits in the form of past surgeries, rehabilitation, \nexpenses, and associated mileage. \n \n4. That she is entitled to an attorney’s fee. \n \n5.  That she is entitled to permanent partial disability.\n1\n \n \nThe respondents contend: \n1. That the claimant did not sustain a compensable injury to either upper extremity.  \n \n2. They also contend that if the claimant is found to be entitled to TTD, then they are \nentitled to an offset against the related benefits owed for the payments she received \nunder an employee-sponsored short-term disability plan, but for the first week (which \nwas not covered by the plan) of her being off work for and after her surgeries.\n2\n  \n \nThat Order also set forth the following STIPULATIONS: \n1. The AWCC has jurisdiction over this claim. \n \n2. An employee/employer/carrier relationship existed on 8 March 2021, and the claimant \nwas entitled to the maximum compensation rates at that time. \n \n3.  The respondents have controverted this claim in its entirety. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witnesses, \nobserving their demeanor, I make the following findings of fact and conclusions of law under \nACA § 11-9-704: \n \n1\n While  reviewing  the  Prehearing  Order  at  the  beginning  of  the  hearing,  the claimant \nindicated  that  she  wished  to  reserve  any  litigation  on  permanent  disability.  A  finding  on \npermanent disability is, accordingly, not addressed in this Opinion. TR at 7. \n2\n The claimant acknowledged that the respondents would be entitled to an offset in the event \nof a TTD entitlement finding. TR at 8-9. \n\nDAVIS- H104009  \n3 \n \n1. The AWCC has jurisdiction over this claim. \n \n2. The previously noted stipulations are accepted as fact. \n \n3. The  claimant  failed  to  prove  by  a  preponderance  of  evidence  that she  suffered  a \ncompensable injury. \n \n4. The claimant is, therefore, not entitled to the benefits sought in this case. \n \n5. Consistent with the above, the claimant’s attorney is not entitled to a fee. \nIII.  HEARING TESTIMONY \n The claimant testified on her own behalf and was the hearing’s only witness.  \nDirect Examination \nPatricia Davis is a fifty-three-year-old female who worked for the respondents for twenty-\nsix years. She worked as a case manager for the last five years or so of her employment with \nthe respondents. She said that her job duties included communicating with debtors, creditors, \nand  attorneys,  managing  check  processing  and  funds  distribution,  and  coordinating  with \ninsurance  companies.  TR  at  10-11.  She  performed  data  entry,  ran  monthly  reports,  and \nassisted other departments with questions around plan distributions. \n Ms. Davis testified that she began having problems with her hands in November of \n2020, before making any mention of a potential workers’ compensation claim. She became \nconcerned when she noticed a “knot” or “growth” on the back of her right\n3\n hand. TR at 12-13. \nAccording to Ms. Davis, she initiated her claim in March of 2021 after seeing a doctor about \nher hand, and “[i]t’s been happening since then.” TR at 14. \n The claimant said that she followed the respondents’ claim protocol and “immediately” \npresented to Concentra. She testified that she was then referred to an orthopaedic provider \nwhose  name  she  did  not  remember.  TR  at  15.  Ms.  Davis  testified  that  she  received  no \ntreatment from the provider and was returned to work without any restrictions. The claimant \n \n3\n The claimant is right-hand-dominant. See Cl. Ex. No 1 at 11. \n\nDAVIS- H104009  \n4 \n \ndid not produce any clinic notes from those provider visits, but only a Return to Work note \nfrom Dr. Mark Peterson dated 8 March 2021. See Cl. Ex. No 1. \n According to  the  claimant, she  continued  to work  as  usual  and without  restrictions \nuntil  she  took time  off for surgery with  a  physician  she  sought  on  her  own.  TR  at  16. She \ntestified that she underwent surgery on her right wrist with Dr. David Rhodes on 30 June \n2021. See Cl. Ex. No 1 at 2-3. Ms. Davis said that she was off work for two and a half or three \nand a half weeks before returning to work. TR at 17.  \n Ms.  Davis  said  that  she  spoke  with  her  employers  about  accommodations  before \nhaving surgery and that they purchased an ergonomic mouse for her right hand. TR at 18. \nAfter returning to work, she testified that she was having or had been having problems with \nher left hand also. Ms. Davis explained that her left hand problems were noted in her initial \nvisit with Dr. Rhodes, but she could not schedule both surgeries at the same time for lack of \na  caregiver  during post-operative  healing.  So,  she  went  back  to  Dr.  Rhodes  for  the  second \nsurgery on 16 August 2021. TR at 19; see also Cl. Ex. No 1 at 4-5. \n The  claimant  returned  to  work  after  the  second  surgery,  but  she  continued  to \nexperience problems. “So I kept going back and forth to my doctor to ask was it normal and \nhe re-evaluated some more and I, eventually, had to start doing steroid shots.” TR at 19. She \ntestified that the injections were administered in both wrists and that she continued to work \nduring that time. Ms. Davis said that she still experienced nighttime swelling that made it \ndifficult to rest. TR at 20.  \n Ms. Davis stated that she wore compression sleeves or guards at different times before \nand after her surgeries. She did not seek accommodations related to the sleeves, but received \nthe earlier-mentioned ergonomic mouse when she requested the same from her supervisor. \nTR at 23. The claimant testified that she was still experiencing trouble with her hands when \nshe separated from her employment on 11 August 2022. \n\nDAVIS- H104009  \n5 \n \n The claimant continued to experience nighttime swelling after surgery and sometimes \nhad to call in late because the pain medication she was prescribed made her sleepy. TR at 24. \nShe has not worked since leaving the respondent’s employment. Before leaving her job, she \nsaid  that  therapy  assisted  her  ability  to work,  but  that  treatment was  not  paid  for  by  her \nemployer. \n Ms.  Davis  stated  that  she  received  short-term  disability  benefits  through  her \nemployer-sponsored plan from 30 June 2021 to 31 August 2021. That plan’s benefits did not \nbegin until after the first week off work. TR at 25. According to her testimony, the claimant \ncontinues to experience pain and swelling: “If I have too much activity, it swells. So anytime \nyou’re doing anything with your hands, I’m still dealing with the same issues, gonna swell.” \nId. She thought she last saw Dr. Rhodes around the beginning of 2022, but her counsel noted \nthat the records reflect a last visit in July of 2022. TR at 26. Dr. Rhodes prescribed medication \nand offered additional steroid injections as needed. \nCross Examination \n Ms.  Davis  acknowledged  that  she  did  attend  work  for  some  time  between  the  two \nsurgeries. TR at 28. And she confirmed that her employer’s short-term  disability  benefits \ncovered all of her time off, but for the one week of her own leave time required by the policy.  \nThe claimant also acknowledged “significant other medical problems and conditions” beyond \nthe problems noted in the records she submitted as evidence. TR at 29. \n Other  problems  include  cervical  and  low-back  issues,  and  she  did  not  deny  past \ncomplaints of tingling and numbness in her arms. Past diagnostic efforts include more than \none nerve conduction study over the years. TR at 30. \n The claimant confirmed that after working for about twenty years as a Modification \nAnalyst, she did not want to be promoted to the Case Manager role. Ms. Davis took issue with \nher  deposition  testimony  that  indicated  her  previous  role  as  having  more  repetitive  job \n\nDAVIS- H104009  \n6 \n \nfunctions than her most recent. TR at 31. After discussing the notion that Ms. Davis did not \ncomplain  about  discomfort  until  after  receiving  the  promotion  she  did  not  want,  the \nquestioning continued: \nQ:  The job that you did, whether Modification Analyst or Case Manager, did \nit involve the use of both arms equally? \n \nA:  Pretty much you’re on a computer. Yes, I would say computer, calculator, \nback and forth. \n \nQ:  You’re right-handed? \n \nA:  I’m right-handed, yes. \n \nQ:  Okay. Yet, you’ve developed the elbow problem in your non-dominant arm? \n \nA:  I answer the phone with the left hand. \n \nQ:  Okay. And that’s the arm that you, at least according to the medical records, \nhad all the problems with, your left shoulder? \n \nA:  I don’t – like I said, I don’t know what you’re asking. \n \nQ:  Okay. Well, do you have an explanation for why you’ve got the cubital \ntunnel syndrome problem in your left arm and not your right arm, if our job \ninvolved the use of both arms? \n \nA:  I don’t have an explanation for it at all, ‘cause I wasn’t even aware of it. I \ndidn’t know what it was; so I can’t tell you what built up to that, other than my \nday-to-day activities of going to work doing the same job that I was doing. So I \ndon’t know what the difference – you’re saying was more on the right or the \nleft. I can’t answer that for you. \n \nQ:  Okay. \n \nA:  ‘Cause I did the same thing every day; so I’m sorry.  TR at 34-35. \n \n The claimant testified that she was prescribed pain medication for her hands by Dr. \nRhodes  and  that  she  continues  to  be  prescribed  the  same  medication.  TR  at  37.  Her  cross \nexamination  ended  without  any  re-direct,  and  the  claimant  rested  her  case  after  brief \nremarks from both attorneys. \nIV.  MEDICAL EVIDENCE \n\nDAVIS- H104009  \n7 \n \n Claimant’s medical exhibits consisted of an off-work note dated 8 March 2021, records \nfrom Dr. Rhodes for dates of service between 25 May 2021 and 31 August 2021, and some \nphysical therapy notes from between 26 October 2021 and 14 December 2021. See Cl. Ex. No \n1.  The  off-work  note  is  not  accompanied  by  any  clinic  notes,  physician  observations, \ndiagnostic efforts, or treatment plans. The first encounter note from Dr. Rhodes represents a \npreceding two years of numbness and tingling in her left upper extremity and noticing a mass \non  her  right  hand  for  six  months. Id.  at  11.  According  to  the  note,  surgery  for  the  right \nextremity was agreed to and planned that day. That surgery occurred on 30 June 2021. \n According to the notes, Dr. Rhodes performed surgery on her left wrist on 16 August \n2021. Id. at 4. Between those surgeries, she presented to Dr. Rhodes with a new complaint of \nright  thumb  pain  and  noticeable  continued  swelling  over  her  right  operative  site.  He \ndiagnosed primary osteoarthritis and administered a steroid injection. Id. at 7-8. \n  The respondents provided medical notes from between 6 February 2012 and 17 April \n2023. See Resp. Ex. No 1. Those notes represented many different office visits and three nerve \nconduction study reports. \n On 20 April 2021 she saw Dr. David Black for right wrist pain complaints, which the \nnote dates back to 22 December 2019. See Resp. Ex. No 1 at 49-54. Dr. Black assessed right \ncarpel tunnel syndrome and osteoarthritis of the wrist. He referred her for a CT scan of the \nwrist and a nerve conduction study and anticipated her following up after those studies were \ncomplete. He released her back to work without restrictions. Consistent with her testimony, \nhowever, the claimant did not return to Dr. Black’s care. \nV.  Post-hearing Briefing \n The parties timely submitted briefs after the hearing. The claimant notes in her brief \nthat she saw Dr. Peterson for a “work related injury” on 8 March 2021 and then had surgery \nat the end of June and the middle of August that same year. She states that her work included \n\nDAVIS- H104009  \n8 \n \ndata input and “making calculations” and concludes that her claim is compensable and that \nshe is entitled to TTD, medical expenses, and an attorney’s fee. \n The respondents argued in their brief, without conceding that she satisfied her burden \non objective findings, that the claimant failed to prove by a preponderance of the evidence \nthat her work duties were a major cause of her injury. They point to numerous other medical \nconditions  and  complaints  that  relate  to  or  could  relate  to  her  upper  extremity  problems, \nincluding  ongoing  complaints  about  her  upper  extremities  and multiple negative  nerve \nconduction studies. \nV.  ADJUDICATION \n The  stipulations  are  outlined  above  and  accepted  as  facts.  It  is  settled  that  the \nCommission, with the benefit of being in the presence of a witness and observing his or her \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements.  See Wal-Mart  Stores,  Inc.  v.  VanWagner,  337  Ark.  443,  448,  990  S.W.2d  522 \n(1999). The Commission must sort through conflicting evidence and determine the true facts. \nIn so doing, the Commission is not required to believe the testimony of the claimant or any \nwitness,  but  may  accept  and  translate  into  findings  of  fact  only  those  portions  of  the \ntestimony that it deems worthy of belief. White v. Gregg Agricultural Ent., 72 Ark. App. 309, \n37 S.W.3d 649 (2001). It is further settled that a party’s testimony is never considered \nuncontroverted. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). \nA. The Claimant Failed to Prove by a Preponderance of the Evidence That She \nSuffered a Compensable Injury. \n \n The claimant contends that she suffered gradual onset injuries to her right and left \nupper extremities. The claimant bears the burden of proving that she suffered a compensable \ninjury. ACA § 11-9-102(4). And she must prove by a preponderance of the evidence that the \n\nDAVIS- H104009  \n9 \n \ncompensable  injury  is  the  major  cause  of  a  disability  or  need  for  treatment.  ACA  §  11-9-\n102(4)(E)(ii). Major cause means more than fifty percent of the cause. ACA. § 11-9-102(14). \n A  gradual  onset  injury  generally  requires  that  the  claimant  meet  her  burden  in \nproving that: (1) the injury arose out of the course and scope of employment; (2) the injury \ncaused  harm  requiring medical  services;  (3)  the  injury  was caused  by  rapid  and repetitive \nmotion; (4) the injury was a major cause of the disability or need for treatment; and (5) the \ninjury  was  established  by  medical  evidence  supported  by  objective  findings. See Pulaski \nCounty Special School District v. Stewart, 2010 Ark. App. 487 (2010). Our Supreme Court, \nhowever, has recognized that carpel tunnel syndrome is a gradual onset injury and a claimant \nneed  not  prove  that  such  an  injury  was  caused  by  rapid  repetitive  motion. See  Kidlow  v. \nBaldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). She must still prove that (1) \nher carpel tunnel syndrome arose out of and in the course of her employment, (2) her injury \ncaused harm that required medical attention or resulted in disability, and (3) the injury was \nthe  major  cause  of  the  disability or  need  for  treatment. The  claimant  must  offer  medical \nevidence supported by objective findings establishing her injury. ACA § 11-9-102(4)(D). In J. \n& G. Cabinets v. Hennington, 269 Ark. 789, 600 S.W.2d 916 (1980), the Court explained that \n“arising out of” employment refers to the origin or cause of an accident and “in the course” \nemployment refers to the time, place, and circumstances under which an injury occurred. \n Based on the evidence presented in this case, I cannot find that the claimant met her \nburden  on  proving  that  her  work  duties  were  a  major  cause  of  a  disability  or  need  for \ntreatment  for carpel tunnel syndrome  or  cubital  tunnel syndrome. I  am  not left to wrestle \nwith competing physicians’ reports as to whether this or that work activity was considered \nin  their  opinions,  within  any  degree  of  certainty  or  likelihood,  to  be  a  major  cause  of  her \ninjuries or complaints. She does not present the need for weighing the credibility of differing \nreports on that point. The claimant offered very little by way of medical evidence to support \n\nDAVIS- H104009  \n10 \n \na finding of major cause. In the absence of medical evidence on causation, the claimant fails \nalso  to  offer  compelling  circumstantial  evidence  as  to  the  major  cause  of  her  conditions. \nInstead, she essentially relies on (1) the general notion that her job included data entry and \nrunning  reports, (2) that  a  single  work  slip,  without  any  accompanying  records,  from  a \nphysician included the words “work injury,” and (3) that she eventually had surgery for carpal \ntunnel  and  carpal  cubital  problems  as  her  evidence for  a  finding  of  major  cause. That  is \nsimply not enough to meet her burden on major causation. \n As  noted  by  the respondents  at  the  hearing  an in  their  brief, the  claimant suffered \nfrom  a  number  of  symptoms,  conditions,  and  complaints  that  she  did  not meaningfully \ndiscount  as  attributing or  possibly  attributing to  the  cause  of  her  extremity  injuries. The \nrespondents further argue their point in noting that the claimant continues to make the same \nor similar complaints as she did prior to her surgeries. \n Because I find that the claimant failed to meet her burden on a compensable injury, \nher claims for reasonable and necessary treatment, associated costs, and TTD\n4\n must also fail. \n B.  Attorney’s Fee \n In accordance with the above, the claimant is not entitled to an attorney’s fee. \nVI.  ORDER \n Consistent with the findings of fact and conclusions of law set forth above, this claim \nis denied and dismissed. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE  \n \n4\n Because she fails to prove a compensable injury, I do not need to further address her claim \nfor TTD benefits. I note, however, that her admission at the hearing that she worked during \nthe time between her surgeries is not consistent with a claim of TTD.","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H104099 PATRICIA DAVIS, EMPLOYEE CLAIMANT STANDING CHAPTER 13 TRUSTEE, EMPLOYER RESPONDENT ALL AMERICA FINANCIAL ALLIANCE, CARRIER RESPONDENT HANOVER INSURANCE GROUP, TPA RESPONDENT OPINION FILED 28 DECEMBER 2023 Heard before Arkansas Workers’ Compensati...","fetched_at":"2026-05-19T23:00:04.439Z","links":{"html":"/opinions/alj-H104099-2023-12-28","pdf":"https://labor.arkansas.gov/wp-content/uploads/DAVIS_PATRICIA_H104099_20231228.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}