{"id":"alj-H104386-2023-03-07","awcc_number":"H104386","decision_date":"2023-03-07","opinion_type":"alj","claimant_name":"Betty Johnson","employer_name":"Vista Outdoor, Inc","title":"JOHNSON VS. VISTA OUTDOOR, INC. AWCC# H104386 MARCH 7, 2023","outcome":"granted","outcome_keywords":["granted:3"],"injury_keywords":["repetitive","wrist","back","carpal tunnel"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//JOHNSON_BETTY_H104386_20230307.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JOHNSON_BETTY_H104386_20230307.pdf","text_length":20442,"full_text":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H104386 \n \nBETTY J. JOHNSON,   \nEMPLOYEE                                                  CLAIMANT \n \nVISTA OUTDOOR, INC.,   \nEMPLOYER                                                RESPONDENT \n \nXL INS. AMERICA/GALLAGHER \nBASSETT SERVICES, INC.,   \nINSURANCE CARRIER/TPA                                                                    RESPONDENT \n \n \nOPINION AND ORDER FILED MARCH 7, 2023 \n \nHearing  on  December  7,  2022,  before  Administrative  Law  Judge  (ALJ)  Mike  Pickens  in  Little \nRock, Pulaski County, Arkansas.   \n \nThe claimant was represented by the Honorable Daniel A. Webb, Webb Law Firm, Little Rock, \nPulaski County, Arkansas.   \n \nThe respondents were represented by the Honorable Guy Alton Wade, Friday, Eldredge & Clark, \nLittle Rock, Pulaski County, Arkansas. \n \n \nINTRODUCTION \n     The parties agreed to the following stipulations, which they affirmed on the record at the \nhearing: \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The  employer/employee/carrier-TPA  relationship  existed  at  all  relevant  times \nincluding May 14, 2021, when the claimant alleges her work duties were “rapid and \nrepetitive” in nature and culminated in a “gradual-onset” “compensable injury” to \nher left wrist and/or left hand. \n \n3.   The claimant’s average weekly wage (AWW) at the time of her alleged injury(ies) \nwas $1,045, entitling the claimant to weekly indemnity rates of $697 for temporary \ntotal disability (TTD), and $523 for permanent partial disability (PPD) benefits, if \n\nBetty, Johnson, AWCC No. H104386 \n \n \nher claim is deemed compensable. \n \n4. The respondents controvert this claim in its entirety. \n \n \n5. The  parties  specifically  reserve  any  and  all  other  issues  for  future  determination \nand/or hearing. \n \n(Commission Exhibit 1 at 2; Hearing Transcript at 5). Pursuant to the parties’ mutual agreement \nthe issues litigated at the hearing were:     \n1. Whether the claimant sustained a “compensable” gradual-onset injury to her left \nwrist and/or left hand within the meaning of the Arkansas Workers’ \nCompensation Act (the Act), which culminated in a period of TTD beginning \nMay 14, 2021, through a date yet to be determined. \n \n2. If the claimant’s alleged injury is deemed compensable, the extent to which she is \nentitled to medical and TTD benefits. \n \n3. Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n4. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Comms’n Ex. 1 at 2; T. at 7).    \n The  claimant  contends  she  suffered  a  gradual  onset  compensable  injury  to  her  left  wrist \nand/or hand as a result of her “rapid and repetitive” job duties at the respondent-employer, Vista \nOutdoor, Inc. (Vista Outdoor, formerly Remington Arms). She is entitled to payment of any and \nall related, reasonably necessary medical expenses; TTD benefits from May 14, 2021, through a \ndate yet to be determined; and a controverted attorney’s fee. The  claimant  specifically  reserves \nany and all other issues for future litigation and/or determination. (Comms’n Ex. 1 at 2-3; T. at 7; \n109-112; 112-115). \n The respondents contend the claimant cannot meet her burden of proof pursuant to the Act, \n\nBetty, Johnson, AWCC No. H104386 \n \n \nas she did not sustain a “compensable” gradual onset injury to her left wrist and/or hand within the \ncourse  and  scope  of  her  employment  at  Vista  Outdoor.  Consequently,  the  respondents  contend \nthey are not responsible for the payment of any medical and/or TTD benefits, or to a controverted \nattorney’s fee. Alternatively, the respondents contend that pursuant to Ark. Code Ann. Section 11-\n9-411 (2022 Lexis Replacement), if the claimant’s alleged injury is deemed compensable they are \nentitled to a dollar-for-dollar offset/credit against any TTD benefits the Commission awards the \nclaimant in an amount equal to the amount of short-term disability (STD) benefits for which the \nclaimant applied and drew. The respondents specifically reserve any and all other issues for future \nlitigation and/or determination. (Comms’n Ex. 1 at 3; T. at 6-7). \n \nSTATEMENT OF THE CASE \nThe claimant, Ms. Betty Johnson (the claimant), is 61 years old. At the time of her alleged \ncompensable injury in January of 2021 the claimant was working at Vista Outdoor, where she has \nworked  for  the  last  16  years.  She  worked  on  an  assembly-line-type  operation  as  a  plate  loader \nwhere she was involved in manufacturing various calibers of pistol ammunition. A more detailed \ndescription of the claimant’s job duties is set forth on pages 17-68  and  70-81  of  the  hearing \ntranscript.   \nFive (5) of the claimant’s seven (7) alternating job duties required her to “flip” metal plates \nof varying weights containing various caliber bullets approximately ten (10) times per minute for \none (1) hour at a time. (T. 29; 66-68; 83-88). This metal plate-flipping job was one (1) of seven \n(7) jobs the claimant performed during the course of a day, as she would alternate between this \nand  other  job  duties.  The  claimant  testified  it  was  this  metal  plate-flipping  job  that  caused  her \n\nBetty, Johnson, AWCC No. H104386 \n \n \nsymptoms and her alleged injury, and that she began having pain and numbness in her left wrist \nand hand beginning some time in January of 2021. (T. 33-34). \nThe claimant initially thought her left wrist was just sore because she had been furloughed \ndue to the COVID-19 pandemic for some seven (7) to eight (8) months before she started back to \nwork  in  January 2021.  The  claimant’s  left  wrist  symptoms, the  pain  and  numbness, started \napproximately six (6) to seven (7) days, or a couple of weeks, after she returned from the COVID-\n19 furlough, and began getting progressively worse over the next few months up to May 14, 2021, \nwhen she was unable to perform her job duties. The claimant admitted she had problems with her \nright wrist in the past and had undergone a carpal tunnel release surgery on right left wrist, but that \nthat  her  left  wrist  had  been  doing  well  up  until  she  returned  back  to  work  at  Vista  Outdoor  in \nJanuary 2021 after the COVID-19 furlough. The claimant also admitted she had a past injury at \nLand O’ Frost, as well as a past injury to her right hand at Remington in 2017 (the predecessor \ncompany of Vista Outdoor) when she tripped and fell and caught herself with her right hand. She \nalso had trigger thumb on her right hand in 2014. The claimant also has been diagnosed with reflex \nsympathetic dystrophy (RSD) in her right arm as a result of her 2017 work-related injury. (T. 33-\n34; 50-53). \nThe claimant testified that her left wrist pain and numbness continued to get worse between \nJanuary 2021 and May 2021. She first underwent conservative treatment for her symptoms, but \nwhen they did not improve she presented herself for medical treatment which ultimately resulted \nin Dr. Brian Norton diagnosing her with de Quervain’s syndrome, also known as de Quervain’s \ntenosynovitis.  The  claimant  underwent  surgery  on  her  left  wrist,  and  returned  to  work  at  Vista \nOutdoor at a new job that does not involve rapid-repetitive motion, or to utilize her wrists in a way \n\nBetty, Johnson, AWCC No. H104386 \n \n \nthat causes her pain. She testified she has been doing well at her new job, and not experiencing the \npre-alleged injury symptoms. (Claimant’s Exhibit 1 at 1-41; Respondents’ Exhibit 1 at 1-22; T. \n44-50). \nMr. Carl Joseph Guthrie, the claimant’s supervisor, testified concerning the claimant’s job \nduties, and his testimony was not significantly different from the claimant’s description of her job \nduties. (T. 69-92). Ms. Donna Hendricks, a licensed practical nurse (LPN) and the company nurse, \nalso testified on the respondents’ behalf. Ms. Hendricks testified the claimant’s job duties were \nnot a “fast-paced” type job, and also that the claimant had been diagnosed with diabetes. She also \ntestified she had no personal knowledge as to what Dr. Moore saw when he visited the plant to \nobserve the job duties the claimant performed. (T. 93-108). \nDr. Moore has opined he does not believe the claimant’s job duties are rapid and repetitive, \nor that her left wrist condition is a result of her work duties; however, he has diagnosed her with \nde Quervain’s syndrome. (RX1 at 18-22). Dr. Norton, the claimant’s treating orthopedic surgeon, \nhas opined to the contrary. (CX1 at 1).                     \n DISCUSSION \nThe Burden of Proof \nWhen deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord as a whole, whether the party having the burden of proof on the issue has established it by \na  preponderance  of  the  evidence. Ark.  Code  Ann. §  11-9-704(c)(2)  (2022  Lexis  Replacement). \nThe  claimant  has  the  burden  of  proving  by  a  preponderance  of  the  evidence  he  is  entitled  to \nbenefits. Stone  v.  Patel, 26  Ark.  App.  54,  759  S.W.2d  579  (Ark.  App.  1998). Ark.  Code  Ann. \n\nBetty, Johnson, AWCC No. H104386 \n \n \nSection 11-9-704(c)(3) (2022 Lexis Repl.) requires the ALJ, the Commission, and the courts “shall \nstrictly construe” the Act, which also requires them to read and construe the Act in its entirety, and \nto harmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d \n899  (Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2022 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987).   \nAll claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.   \nThe  Commission  has  the  duty  to  weigh  the  medical  evidence  just  as  it  does  any  other \nevidence,  and  its  resolution  of  the  medical  evidence  has  the  force  and  effect  of  a  jury  verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince  to  weigh  the  totality  of  the  medical  evidence  and  to  determine  what  evidence  is  most \n\nBetty, Johnson, AWCC No. H104386 \n \n \ncredible  given  the  totality  of  the  credible  evidence  of  record. Minnesota  Mining  &  Mfg’ing  v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \nCompensability: Gradual Onset Injuries \nThe respondents contend the claimant cannot meet his burden of proof pursuant to the Act \nin demonstrating he has sustained a “compensable” gradual onset injury. Ark. Code Ann. § 11-9-\n102 (4)(A)(2022 Lexis Replacement) defines a “compensable injury” which is not the result of a \nspecific incident – i.e., a gradual onset injury – as follows: \n(ii) An injury causing internal or external physical harm to the body and arising out \nof and in the course of employment if it is not caused by a specific incident or is \nnot identifiable by time and place of occurrence; if the injury is: \n \n(a) Caused  by  rapid  repetitive  motion. Carpal  tunnel  syndrome  is  specifically \ncategorized as a compensable injury falling within this definition[.]   \n \n(Emphases and Bracketed material added).   \n     The test  for determining whether  an injury is caused by rapid and repetitive motion is two \n(2)-pronged: (1) the task must be repetitive and (2) the repetitive motion must be rapid. Malone v. \nTexarkana  Public  Schools,  333  Ark.  343,  969  S.W.2d  644  (1998).  Multiple  tasks  involving \ndifferent  movements  can  be  considered  together to  satisfy  the  “repetitive  element”  of  rapid \nrepetitive motion. Id. The claimant is not required to prove rapid and repetitive motion when there \nis a diagnosis of CTS. Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). \n     As  with  any  and  all  compensable  injuries,  a  compensable  gradual  onset  injury  must  be \nestablished  by  medical  evidence  supported  by  objective  findings.   Ark.  Code  Ann.  §  11-9-\n102(4)(D); Ark. Code Ann. § 11-9-102(16). For a gradual onset injury caused by rapid repetitive \nmotion the resulting condition is compensable only if the alleged compensable injury is the “major \n\nBetty Johnson, AWCC No. H104386 \n \n8 \n \ncause” of the disability or need for treatment. Ark. Code Ann. § 11-9-102(4)(E)(ii); Medlin v. Wal-\nMart Stores, Inc., 64 Ark. App. 17, 977 S.W.2d 239 (1998). \n     Pursuant to the Act, a compensable injury, whether it is from a specific incident, or is gradual \nonset, must also be established by medical evidence supported by objective findings, which the \nAct specifically defines as “those findings which cannot come under the voluntary control of the \npatient.” Ark.  Code  Ann.  §  11-9-102(4)(D); Ark.  Code  Ann. §  11-9-102(16).  Moreover –  and \nsignificant if not dispositive in this case – a gradual onset injury caused by rapid repetitive motion \nis compensable only if the alleged compensable injury is the “major cause” of the disability or need \nfor treatment. Ark. Code Ann. § 11-9-102(4)(E)(ii); Medlin v. Wal-Mart Stores, Inc., 64 Ark. App. \n17, 977 S.W.2d 239 (Ark. App. 1998).   \n     Of course, the Act specifically defines “major cause” as “more than fifty percent (50%) of \nthe cause”, and states that this major cause requirement “shall be established according to the \npreponderance of the evidence.” Ark.  Code  Ann. Section  11-9-102((14)(A)-(B). The “major \ncause” requirement  may  be  established  by  the  fact  the  claimant  was  asymptomatic  prior  to  an \nincident, and then required medical treatment after the incident. Parker v. Atlantic Research Corp., \n189 S.W.3d 449, 87 Ark. App. 145 (Ark. App. 2004). Consequently, based on the applicable law \nas applied to the facts of this case, I find the claimant has failed to meet the Act’s required burden \nof proof for the following reasons. \n     First, it should be noted the claimant has been diagnosed by both Drs. Moore and Norton as \nhaving de Quervain’s syndrome. The Merck Manual of Diagnosis and Therapy, (Merck, Sharpe \n&  Dohme,  20\nth\n  Edition  2018  at  289)  defines  de  Quervain’s  Syndrome  as,  “...stenosing \n\nBetty Johnson, AWCC No. H104386 \n \n9 \n \ntenosynovitis  of  the  short  extensor  tendon  (extensor  pollicis  brevis)  and  long  abductor  tendon \n(abductor pollicis longus) of the thumb within the first extensor compartment”, and states that the \ncondition, “usually occurs after repetitive use (especially wringing) of the wrist... .” The claimant \nhas worked at Remington, now Vista Outdoors, some 16 years. The job she was performing after \nshe  returned  from  COVID-19  furlough  is  wrist  intensive,  involves  the  lifting  and  flipping  of \nrelatively  heavy  weight,  at  what  certainly  appears  to  be  a  relatively  rapid,  repetitive  pace. \nFurthermore, there exists no medical or other credible evidence of record that would explain the \ncause of the claimant’s diagnosed de Quervain’s syndrome in her left wrist.   \n     Second,  based  on  the  preponderance  of  the  credible  medical  and  other  evidence  of  record \nthere exists no other credible explanation as to the cause of the claimant’s de Quervain’s syndrome \nother than her job duties at Vista Outdoor. Moreover, based on the specific facts of this case I find \nthat Dr. Norton, the claimant’s treating orthopedic surgeon, is in a better position given the totality \nof  the  circumstances  to  render  the  most  credible  opinion  concerning  causation.  Dr.  Norton  has \nsuccinctly and clearly opined that, “Patient did repetitive lifting/gripping/flipping w left hand \nwhich led to the development of de Quervains.” (CX1 at 1). While one might nit-pick and argue \nthat Dr. Norton did not specifically state the claimant’s job duties were “rapid” in nature, I am of \nthe  opinion  there  exists  other  evidence  of  record  that  may  lead  a  fact-finder  to  determine  the \nclaimant’s subject job duties were in fact “rapid” in nature.  \n     Third, and finally, just as a matter of common sense and fundamental fairness, there appears \nto be no disagreement between Drs. Norton and Moore that the claimant’s diagnosed condition is \nde Quervain’s syndrome, which is caused by repetitive motion activities. To find, based on the \n\nBetty Johnson, AWCC No. H104386 \n \n10 \n \ntotality of the credible medical and other evidence of record herein, that the claimant’s rapid and \nrepetitive job duties at Vista Outdoor – especially in the absence of other credible evidence to the \ncontrary – were not the “major cause” of the claimant’s condition and need for medical treatment \nwould  constitute  sheer  speculation  and  conjecture.  Since  sheer  speculation  and  conjecture  are \ninsufficient to support a claim for compensation, it logically follows they cannot be used to deny \na claim for compensation, as well. See, Deana, supra.      \n     Therefore, for all the aforementioned reasons I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The stipulations contained in the Second Amended Prehearing Order filed \nSeptember 19, 2022, are hereby accepted as facts. \n \n2. The claimant has met her burden of proof in demonstrating she sustained a gradual \nonset “compensable injury” within the Act’s meaning to her left wrist which \nculminated in disability beginning on or about May 14, 2021. \n \n3. The claimant has met her burden of proof in demonstrating the medical treatment \nshe has undergone on her left wrist, including but not limited to the surgery, is \nrelated to and reasonably necessary in light of her gradual onset compensable \ncompensable injury which culminated in disability beginning on or about May 14, \n2021.   \n \n4. The claimant has met her burden of proof in demonstrating she is entitled to TTD \nbenefits from May 14, 2021, until she returned to work for the respondents at a \nnew job on or about May 6, 2022. \n \n5. Pursuant to Ark. Code Ann. Section 11-9-411 (Lexis Repl. 2022) the respondents \nare entitled to a dollar-for-dollar offset/credit related to the immediately \naforementioned TTD benefits based on the total amount of STD benefits for which \nthe claimant applied and received following her compensable left wrist injury.   \n \n6. The claimant’s attorney is entitled to a fee based on the controverted TTD benefits \nfrom on or about May 14, 2021, through on or about May 6, 2022.   \n \n \n\nBetty Johnson, AWCC No. H104386 \n \n11 \n \nAWARD \n \n     The respondents are hereby directed to pay benefits in accordance with the “Findings of \nFact and Conclusions of Law” set forth above. All accrued sums shall be paid in lump sum \nwithout discount, and this award shall earn interest at the legal rate until paid pursuant to Ark. \nCode Ann. Section 11-9-809, and Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 \nS.W.2d 57 (Ark. App. 1995); Burlington Indus., et al v. Pickett, 64 Ark. App. 67, 983 S.W.2d \n126 (Ark. App. 1998); and Hartford Fire Ins. Co. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004).   \n     If they have not already done so, the respondents shall pay the court reporter’s invoice \nwithin ten (10) days of their receipt of this opinion and order. \n     IT IS SO ORDERED.\n                                          ____________________________________ \n                                          Mike Pickens \n                                          Administrative Law Judge","preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H104386 BETTY J. JOHNSON, EMPLOYEE CLAIMANT VISTA OUTDOOR, INC., EMPLOYER RESPONDENT XL INS. AMERICA/GALLAGHER BASSETT SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED MARCH 7, 2023 Hearing on December 7, 2022, before Administrativ...","fetched_at":"2026-05-19T23:09:15.105Z","links":{"html":"/opinions/alj-H104386-2023-03-07","pdf":"https://labor.arkansas.gov/wp-content/uploads//JOHNSON_BETTY_H104386_20230307.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}