{"id":"alj-H302799-2023-12-19","awcc_number":"H302799","decision_date":"2023-12-19","opinion_type":"alj","claimant_name":"Gisela Gutierrez","employer_name":"Tyson Poultry, Inc","title":"GUTIERREZ VS. TYSON POULTRY, INC. AWCC# H302799 DECEMBER 19, 2023","outcome":"denied","outcome_keywords":["dismissed:1","denied:5"],"injury_keywords":["wrist","carpal tunnel","repetitive","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/GUTIERREZ_GISELA_H302799_20231219.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GUTIERREZ_GISELA_H302799_20231219.pdf","text_length":14763,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H302799 \n \nGISELA GUTIERREZ, Employee                                                                    CLAIMANT \n \nTYSON POULTRY, INC., Employer                                                         RESPONDENT                        \n \nTYNET CORPORATION, Carrier/TPA                                                     RESPONDENT                          \n \n \n OPINION FILED DECEMBER 19, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by JEREMY SWEARINGEN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  November  29,  2023,  the  above  captioned  claim  came  on  for  hearing  at \nSpringdale, Arkansas.  A pre-hearing conference was conducted on June 21, 2023 and \na  pre-hearing  order  was  filed  on  that  same date.   A  copy  of  the  pre-hearing order has \nbeen marked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The employee/self-insured employer relationship existed between the parties \non June 15, 2022. \n 3.   Respondent has controverted this claim in its entirety. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n\n1.    Compensability of gradual onset injury to claimant’s right wrist and elbow on  \nor about June 15, 2022. \n2.     Medical expenses. \n3.     Temporary total disability benefits. \n4.      Attorney’s fee. \n5.       Notice. \nThe claimant contends she is entitled to payment of medical treatment for her right \nwrist and elbow, and to payment of temporary total disability benefits for two weeks during \nJanuary of 2023.  Claimant reserves all other issues.  \nThe  respondents  contend  that  claimant  has  offered  no  proof  at  all  that  she \nsustained  a  compensable  right  wrist  or  elbow  injury.    She  has  provided  no  objective \nmedical findings of injury or any records whatsoever.  Respondent contends that its first \nnotice  that the claimant was alleging a compensable right wrist and elbow injuries was \nthe AR-C filed by the claimant’s attorney which was received by the respondent on May \n3, 2023.  Thus, even if the claimant were somehow found to be compensable, respondent \nwould not be liable for any benefits incurred or accrued before the date such notice was \nreceived.  The claimant has not specified what temporary total disability benefits she is \nseeking.  The claimant has not specified what medical she is seeking. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n\nGutierrez – H302799 \n \n3 \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.        The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference \nconducted on June 21, 2023 and contained in a pre-hearing order filed that same date \nare hereby accepted as fact. \n 2.        Claimant has failed to prove by a preponderance of the evidence that she \nsuffered a compensable gradual onset injury to her right wrist and elbow on or about \nJune 15, 2022. \n \n FACTUAL BACKGROUND \n Claimant  is  a  45-year-old  woman  who  began  working  in  August  2003  for \nrespondent in deboning in its Rogers’ plant.  At some point in time that plant closed and \nclaimant was transferred to respondent’s plant on Berry Street in Springdale.  Her job \nthere required her to pull the skin off 50 chicken breasts per minute. \n Claimant testified that in mid-June 2022 she began having problems with pain in \nher right wrist.  She stated that she reported the problems to the nurse’s station, but an \ninterpreter was not present so she had to communicate with hand signals and was not \nprovided treatment. \n As she continued to work the pain radiated from her right wrist up to her elbow and \nshe reported these problems to her supervisor, Maria, who took her to the nurse’s station \nand interpreted for her.  Claimant was given cream to apply to her wrist and arm.  When \nclaimant’s complaints continued, she sought medical treatment from her primary care \nphysician, Dr. John Smiley, who referred her to Dr. Andreas Chen, orthopedic surgeon. \n At his initial visit with claimant on October 6, 2022, Dr. Chen prescribed the use of \n\nGutierrez – H302799 \n \n4 \n \nbraces.    Dr.  Chen  noted  that  claimant  suffered  from diabetes  which  was  out of  control \nand he could not consider an injection or surgery at that time.  On November 15, 2022, \nDr. Chen recommended that claimant continue to wear her braces and he also ordered a \nnerve  conduction  study.    That  nerve  conduction  study  was  performed  by  Dr.  Miles \nJohnson on November 30, 2022, and revealed bilateral carpal tunnel syndrome, severe \non the right and moderate on the left. \n After claimant’s diabetes came under control, Dr. Chen performed a carpal tunnel \nrelease on claimant’s right wrist in January 2023.  Claimant was off work for two weeks \nafter her surgery before returning to work for respondent.  Claimant testified that she still \nsuffers from pain in her right wrist and elbow. \n Claimant has filed this claim contending that she suffered a gradual onset injury to \nher  right  wrist  and  elbow  on  or  about  June  15,  2022.    She  seeks  payment  of  medical \nexpenses, temporary total disability benefits, and a controverted attorney fee. \n \nADJUDICATION \n Claimant contends that she suffered a compensable injury in the form of a gradual \nonset injury to her right wrist and elbow in mid-June 2022.   Claimant has been diagnosed \nas  suffering  from  right  carpal  tunnel  syndrome  and underwent  surgery  in  the form  of a \ncarpal tunnel release by Dr. Chen in January 2022.  In Kildow v. Baldwin Piano & Organ, \n333  Ark.  335,  969  S.W.  2d  190  (1998),  the  Arkansas  Supreme  Court  recognized  that \ncarpal  tunnel  syndrome  constitutes  a  gradual  onset  injury.    Therefore,  claimant  is  not \nrequired to prove that her injury was caused by rapid repetitive motion.  However, claimant \nmust still prove (1) that her carpal tunnel syndrome arose out of and in the course of her \n\nGutierrez – H302799 \n \n5 \n \nemployment;  (2)  her  injury  caused  internal  or  physical  harm  to  the  body  that required \nmedical services or resulted in disability;  and (3) the injury  was the major cause of the \ndisability  or  need  for  treatment.    A.C.A.  §11-9-102(4)(A)(ii)(E)(ii).    In  addition,  claimant \nmust  offer  medical  evidence  supported  by  objective  findings  establishing  her  injury.  \nA.C.A. §11-9-102(4)(D). \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to prove by a preponderance of \nthe evidence that her carpal tunnel syndrome is a compensable injury.  As noted above, \nthe third requirement for a compensable injury is that the compensable injury be the major \ncause  of  the  disability  or  need  for  treatment.    A.C.A.  §11-9-102(4)(E)(ii); Medlin  v. \nWalmart Stores, Inc., 64 Ark. App. 17, 977 S.W. 2d 239 (1998).  “Major cause” means \ngreater than fifty percent (50%) of the cause.  §11-9-102(4)(E)ii. \n Here,  the  claimant  has  a  twelve  year  history  of  having  been  diagnosed  with \ndiabetes.  At the time of her initial visit with Dr. Chen on October 6, 2022 her A1C was \ngreater than 12.  In his deposition testimony, Dr. Chen stated the following with respect \nto that reading. \n  Q In the October 6\nth\n chart dictation, there’s mention \n  of uncontrolled diet.  She’s an uncontrolled diabetic with \n  an A1C greater than 12.  And why is that, in your opinion, \n  relevant to a discussion of carpal tunnel or upper extremity \n  complaints like this? \n \n  A So there are a couple of reasons.  One is that  \n  diabetes can increase your symptoms or carpal tunnel \n  syndrome.  Number two is that I would not intervene on \n  any - - I would not intervene on her care, if her diabetes \n  was uncontrolled, so - - because the risk of infection goes \n  up significantly, if her - -  your sugars are uncontrolled. \n           I would - - that is my way of saying, hey, I would \n\nGutierrez – H302799 \n \n6 \n \n  not operate on her.  It also says, hey, I would not give \n  her a steroid injection either. \n \n \n During the course of his deposition Dr. Chen stated that people who are diabetic \nare more likely to develop carpal tunnel syndrome.  He further noted that diabetes can be \nan aggravating factor to the inflammation of the medial nerve in the carpal tunnel.  Most \nsignificantly,  Dr.  Chen  was  unwilling  to  state  within  a  reasonable  degree  of  medical \ncertainty  whether  claimant’s  carpal  tunnel  syndrome  was  the  result  of  job  activities  as \nopposed to diabetes. \n  Q So as we sit here today, with Ms. Gutierrez \n  specifically, is there any way - - and let me preface \n  this by saying, would it be correct to say that Ms. \n  Gutierrez gave you a history of noticing problems \n  with her hands when she used them a lot at work? \n \n  A Ask that question again. \n \n  Q Sure. And I’m going back to the very, very - - \n   \n  A Yes. \n \n  Q - - intake form.  She said - - “What makes your \n  pain worse?”  “Work.” \n \n  A Correct. \n \n  Q And she has a hand-intensive job.  Would it be \n  fair to say that she has, at least, indicated that her \n  symptoms she feels are worse when she’s using her \n  hands at work? \n \n  A Correct. \n \n  Q Would it also be correct to say that there’s a \n  temporal proximity between her blood sugars being  \n  out of control and her presentation for treatment of \n  those symptoms, both in terms of coming - - showing \n  up, and also reporting severity? \n\nGutierrez – H302799 \n \n7 \n \n \n  A Yes. \n \n  Q Is there any way to state within a reasonable \n  degree of medical certainty which of these causes or \n  potential causes is the cause of her carpal tunnel \n  syndrome, as opposed to the symptoms just mani- \n  festing at a given time? \n \nA It is not possible to say. \n \nQ Would it be fair to say that it’s not surprising \nthat she has symptoms of pain and these carpal tunnel \n  symptoms when she’s using her hands a lot? \n \n  A It is fair to say that.  Correct.   \n \n  Q Because - - and then, if she has carpal - -  \n  underlying carpal tunnel syndrome from whatever \n  reason, it would be - - would it be expected for her \n  to have those symptoms manifest when she’s using \n  her hands a lot? \n \n  A Yes. \n \n  Q Would it also be expected that - - if her blood \n  sugar becomes more out of control, getting into those \n  upper levels, like 250, 300, would it also be expected \n  for her to experience symptoms from her carpal tunnel \n  syndrome at those times where her blood sugar is way \n  out of control? \n \n  A Yes. \n \n  Q Would it be fair to say that correlation doesn’t \n  necessarily mean causation? \n \n  A Correct. \n \n  (Emphasis added.) \n \n \n Therefore,  Dr.  Chen  was  unable to  state  within  a  reasonable degree  of  medical \ncertainty whether claimant’s carpal tunnel syndrome was the result of her job activities or \n\nGutierrez – H302799 \n \n8 \n \nher uncontrolled diabetes.  I find that Dr. Chen’s opinion is credible and entitled to great \nweight.    Based  upon  his  testimony,  I  find  that  claimant  has  failed  to  prove  by  a \npreponderance of the evidence that her job activities for the respondent were the “major \ncause” of her disability or need for treatment.  Given Dr. Chen’s testimony, claimant has \nfailed to prove by a preponderance of the evidence that her job duties were greater than \n50% of the cause of her disability or need for medical treatment.  Accordingly, I find that \nclaimant has failed to meet her burden of proving by a preponderance of the evidence \nthat she suffered a compensable in the form of carpal tunnel syndrome. \n I also note that claimant testified that she has complaints of tingling in her pinky \nand ring finger on both hands.  According to Dr. Chen’s testimony, claimant made those \ncomplaints at the time of her October 26, 2023 visit.  He indicated that those complaints \nwould not be related to carpal tunnel, but instead would be related to cubital tunnel.  Even \nif  all  other  elements  of  compensability  were  proven  for  cubital  tunnel  such  as  rapid \nrepetitive motion, I note that claimant has the burden of offering objective medical findings \nestablishing an injury.  No objective findings have been offered establishing cubital tunnel \nsyndrome.  In fact, according to Dr. Chen, the initial nerve conduction study revealed no \nevidence of cubital tunnel at that time.  While Dr. Chen indicated that he might request a \nrepeat  nerve  conduction  study  test,  at  the  time  of  the  hearing there  were  no  objective \nfindings establishing an injury in the form of cubital tunnel. \n Likewise,  claimant  made  complaints  at  the  time  of  her  office  visit  in  April  2023 \ninvolving  her  right  elbow  and  was  diagnosed  with  lateral  epicondylitis.    Claimant’s \ntreatment included observation.  There are no objective findings establishing an injury in \nthe form of lateral epicondylitis in the medical records.   \n\nGutierrez – H302799 \n \n9 \n \n Accordingly, I likewise find that claimant has failed to prove by a preponderance of \nthe evidence that she suffered cubital tunnel syndrome or lateral epicondylitis as a result \nof her job activities with respondent. \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that she suffered \na  compensable  gradual  onset  injury  to  her  right  wrist  and  elbow  on  or  about June  15, \n2022.  Claimant has failed to establish that her job activities were the major cause of her \ndisability or need for medical treatment.  In addition, claimant has failed to offer medical \nevidence supported by objective findings establishing cubital tunnel syndrome or lateral \nepicondylitis.    Therefore,  her  claim  for  compensation  benefits  is  hereby  denied  and \ndismissed. \n Respondent  is  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $283.70. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302799 GISELA GUTIERREZ, Employee CLAIMANT TYSON POULTRY, INC., Employer RESPONDENT TYNET CORPORATION, Carrier/TPA RESPONDENT OPINION FILED DECEMBER 19, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkan...","fetched_at":"2026-05-19T22:59:51.314Z","links":{"html":"/opinions/alj-H302799-2023-12-19","pdf":"https://labor.arkansas.gov/wp-content/uploads/GUTIERREZ_GISELA_H302799_20231219.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}