{"id":"full_commission-H302799-2024-05-31","awcc_number":"H302799","decision_date":"2024-05-31","opinion_type":"full_commission","claimant_name":"Gisela Gutierrez","employer_name":"Tyson Poultry, Inc","title":"GUTIERREZ VS. TYSON POULTRY, INC. AWCC# H302799 MAY 31, 2024","outcome":"denied","outcome_keywords":["granted:1","denied:2"],"injury_keywords":["wrist","carpal tunnel","back","repetitive"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Gutierrez_Gisela_H302799_20240531.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Gutierrez_Gisela_H302799_20240531.pdf","text_length":33173,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H302799 \n \nGISELA GUTIERREZ, \nEMPLOYEE \n \nCLAIMANT \nTYSON POULTRY, INC.,  \nEMPLOYER \n \nRESPONDENT \nTYNET CORPORATION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MAY 31, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE JEREMY SWEARINGEN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nDecember 19, 2023.  The administrative law judge found that the claimant \nfailed to prove she sustained a compensable injury.  After reviewing the \nentire record de novo, the Full Commission finds that the claimant proved \nby a preponderance of the evidence that she sustained a compensable \ninjury.     \nI.  HISTORY \n Gisela Gutierrez de Maldonado, now age 45, testified that she \nbecame employed with the respondent, Tyson, in 2003.  The claimant \n\nGUTIERREZ - H302799  2\n  \n \n \ntestified that she initially performed “deboning” in her work for the \nrespondent-employer.  The parties stipulated that the employment \nrelationship existed on June 15, 2022.  The claimant testified on direct \nexamination: \nQ.  What job were you doing in the spring and summer of \n2022? \nA.  2022, the same thing but they closed the plant in Rogers \nand moved us to Springdale....My wrist started hurting me \nfrom pulling the skin off. \nQ.  And which wrist was that? \nA.  The right one.   \nQ.  Have you ever had any problems with that right wrist \nbefore these symptoms began? \nA.  No.   \nQ.  Now, you said you were pulling the skin.  Can you \ndescribe the job more specifically? \nA.  So the job there is to flip the breast over and then pull the \nskin off of it.... \nQ.  And are you standing in an assembly line when you’re \ndoing this? \nA.  Yes.   \nQ.  Do you know whether there’s a quota for how many \nbreasts you must do per minute? \nA.  Fifty.   \nQ.  When you began having these symptoms in your right \nhand and wrist, did you report those? \nA.  Yes, I told the nurse’s station.   \nQ.  And is that the procedure that you were instructed to use \nwhen you have an injury at Tyson? \nA.  Yes, I mean there’s a lot of different departments at Tyson, \nand it just depends on what area you work in.... \nQ.  So when you reported to the nurse’s station, what did the \nnurse do for you? \nA.  Nothing.... \nQ.  As the days went on, did you begin to have more \nsymptoms? \nA.  Yes....The pain moved up to my elbow.   \nQ.  And is that your right elbow? \n\nGUTIERREZ - H302799  3\n  \n \n \nA.  Yes, the right elbow.   \nQ.  And did you report the problem again? \nA.  Yes, I told Maria, the supervisor.   \nQ.  And about how long was this from the time you first \nreported the nurse’s station? \nA.  About three weeks.... \nQ.  So did the nurse offer you any treatment? \nA.  No, no.  She just told me to take some of the cream that \nthey had and rub that on.   \nQ.  And did you make it clear to the nurse and to Maria that \nyou believed it was your work that was causing your \nproblems? \nA.  Yes, I told Maria and the nurse that.   \nQ.  So when the nurse did not offer you any treatment, did you \ncontinue to work? \nA.  Yes, I did.   \nQ.  And did you seek medical treatment on your own? \nA.  Yes.  I went to my own doctor because I couldn’t take the \npain anymore. \nQ.  And who is your doctor? \nA.  Smiley, John Smiley.   \nQ.  And did Dr. Smiley give you any treatment for your elbow \nand wrist? \nA.  No....He sent me to Dr. Chen.   \n \n According to the record, the claimant treated at Mercy Clinic \nOrthopedics Rogers beginning October 6, 2022.  The claimant reported \n“pain on both arms” and that the pain was worsened by “Work.”  Dr. \nAndreas Chen began treating the claimant on October 6, 2022: \nA 43-year-old right-hand dominant female, who works at \nTyson, who presents today for evaluation of her bilateral \nupper extremities.  She states that her left hand has been \nbothering her especially at the wrist.  She notes that it hurts \nher whenever she uses her left upper extremity.  It has been \ngoing on for the last 3 months.  She notes that her right hand \nhas also been having numbness and tingling as well.  It has \nbeen bothering her.  She has not worn braces on either wrists \n\nGUTIERREZ - H302799  4\n  \n \n \n(sic).  Of note, she is an uncontrolled diabetic with an A1c \ngreater than 12.   \n \n Dr. Chen assessed “A 43-year-old female with uncontrolled diabetes \nwith left TFCC inflammation along with right carpal tunnel syndrome.”  Dr. \nChen planned, “Her diabetes is too out of control for her [to] undergo steroid \ninjection or to undergo surgical intervention.  At this point, I would \nrecommend placing a volar cock-up brace to help with the TFCC and using \ndiclofenac gel.  On the right side, I would like her to use a volar cock-up \nbrace as well.  I would like to see her back in another 6 weeks for repeat \nevaluation to see how she is doing with her diabetes.  If her sugars are \nbetter and her A1c is better, then we can potentially give her a steroid \ninjection or set her up for surgical intervention.”   \n Dr. Miles M. Johnson provided an EMG Report on November 30, \n2022: \nMedian motor distal latencies are prolonged bilaterally, right \nworse than left.  Ulnar motor study is normal bilaterally.  Right \nmedian orthodromic response is nonrecordable.  Ulnar \nresponse is normal.  Left median ulnar orthodromic sensory \nlatency difference is abnormal.  Radial sensory response is \nnormal bilaterally.  EMG examination revealed reduced \nrecruitment in the APB bilaterally.   \nASSESSMENT:  Bilateral carpal tunnel syndrome.  This is \nsevere on the right and moderate on the left.  There is no \nelectrodiagnostic evidence of radiculopathy, plexopathy, \ngeneralized peripheral neuropathy or other peripheral nerve \nentrapment syndromes....Would recommend evaluation for \nbilateral carpal tunnel releases beginning on the right.   \n \n The claimant followed up with Dr. Chen on December 13, 2022: \n\nGUTIERREZ - H302799  5\n  \n \n \nA 44-year-old female, who presents back today for evaluation \nof her right upper extremity....Electrodiagnostic testing from \nDr. Miles Johnson was reviewed from 11/30/2022 revealing \nright carpal tunnel syndrome....She has carpal tunnel \nsyndrome.  It is fairly severe.  At this point, I would \nrecommend an endoscopic carpal tunnel release.  I initially \nwas hesitant to offer her surgical intervention as her sugars \nare not well controlled.  Since they are much better controlled, \nwe can do this....We will do her surgery under IV sedation in \nJanuary.  She will have 3 weeks off her work.  She needs to \nwear her braces in the meantime to help with her tingling and \nto help with her pain in the left wrist.   \n \n On January 5, 2023, Dr. Chen signed a Tyson certification indicating \nthat the claimant could return to regular work with no restrictions on \nFebruary 1, 2023.    \nThe record indicates that Dr. Chen performed a right carpal tunnel \nrelease on January 16, 2023.  The claimant testified that she was off from \nwork for two weeks following surgery.     \nAudrey C. Smith, PA noted on February 2, 2023, “Patient is 2 weeks \npostop right carpal tunnel release performed on 1/16/2023.  She reports \nthat she is doing much better.  She is having some pain in her palm but \nother than that she is happy with the procedure.  Patient is overall  happy \nwith the procedure....Patient is healing well from a right carpal tunnel \nrelease.  She was educated that there may continue to be pain in their palm \nfor up to 4-6 weeks post operatively but this should progressively improve.  \nPatient is released to do what they would like as tolerated with pain.”   \nAudrey C. Smith examined the claimant on April 26, 2023: \n\nGUTIERREZ - H302799  6\n  \n \n \nGisela Gutierrez de Maldonado is a 44 y.o. female who \npresents with right elbow pain.  This has been going on for the \npast 3 months.  She has a lot of pain whenever she is trying to \nmove her hand or her wrist.  She uses her hands a lot at work \nand so she has some issues with that.  The pain is in her \nelbow but does seem to radiate down her arm.  She has not \ntried any conservative management.... \nMUSCULOSKELTAL:  Upon exam of right upper extremity, \npatient has tenderness to palpation over the right lateral \nepicondyle.  No tenderness over the medial epicondyle.  No \ntenderness over the olecranon.  Some tenderness throughout \nthe forearm.  Some tenderness with wrist extension.  No \ndeformities noted.... \nPatient has right lateral epicondylitis.  This is something we \ncan manage conservatively.  What I would recommend is that \nwe give her a tennis elbow strap as well as some numbness \nin her in some anti-inflammatory medication.  I will send her in \nmeloxicam.  She should take it every day for the next 2 weeks \nand as needed thereafter.  [Let’s] see her back in about 6 \nweeks.  I did tell her it takes a while for this to completely \nimprove.  She is a diabetic so this will increase her duration of \nhealing....She is released to full duty. \n \n Ms. Smith assessed “Right lateral epicondylitis.”   \nA pre-hearing order was filed on June 21, 2023.  According to the \npre-hearing order, the claimant contended, “The claimant contends she is \nentitled to payment of medical treatment for her right wrist and elbow, and \nto payment of temporary total disability benefits for two weeks during \nJanuary of 2023.  Claimant reserves all other issues.” \n The parties stipulated that the respondents “controverted this claim \nin its entirety.”  The respondents contended, “The respondents contend that \nclaimant has offered no proof at all that she sustained a compensable right \nwrist or elbow injury.  She has provided no objective medical findings of \n\nGUTIERREZ - H302799  7\n  \n \n \ninjury or any records whatsoever.  Respondent contends that its first notice \nthat the claimant was alleging a compensable right wrist and elbow injuries \n(sic) was the AR-C filed by the claimant’s attorney which was received by \nthe respondent on May 3, 2023.  Thus, even if the claimant (sic) were \nsomehow found to be compensable, respondent would not be liable for any \nbenefits incurred or accrued before the date such notice was received.  The \nclaimant has not specified what temporary total disability benefits she is \nseeking.  The claimant has not specified what medical she is seeking.”   \n The parties agreed to litigate the following issues: \n1.  Compensability of a gradual onset injury to claimant’s right \nwrist and elbow on or about June 15, 2022. \n  2.  Medical expenses. \n  3.  Temporary total disability benefits. \n  4.  Attorney’s fee. \n  5.  Notice.    \n \n The parties deposed Dr. Chen on November 17, 2023.  The \nrespondents’ attorney examined Dr. Chen: \nQ.  Did – you ended up conducting – performing surgery on \nthe right side for carpal tunnel release.  Is that right? \nA.  Correct.... \nQ.  In the October 6\nth\n chart dictation, there’s mention of \nuncontrolled diet.  She’s an uncontrolled diabetic with an A1c \ngreater than 12.  And why is that, in your opinion, relevant to a \ndiscussion of carpal tunnel or upper extremity complaints like \nthis? \nA.  So there are a couple of reasons.  One is that diabetes \ncan increase your symptoms of carpal tunnel syndrome.  \nNumber two is that I would not intervene on any – I would not \nintervene on her care, if her diabetes is uncontrolled, so – \n\nGUTIERREZ - H302799  8\n  \n \n \nbecause the risk of infection goes up significantly, if her – your \nsugars are uncontrolled.... \nQ.  Now, I’ve read some literature that indicates that there’s, \nat least, a belief that diabetes is causative in the formation of \ncarpal tunnel syndrome.  Is that your understanding as well? \nA.  I think there’s a correlation.  I am not convinced of \ncausation.  I think there are people who are – people who are \ndiabetic more likely to develop carpal tunnel syndrome.  We \nhave – we don’t have a causation.   \nQ.  Okay.  Now, and some of the literature I read, just to try to \nfigure out the correlation, there is a theory or, at least, a belief \nthat the glucose in high-glucose-blood-sugar patients \naccumulates around the median nerve and causes \ninflammation within the carpal tunnel.  Is that something that \nyou’ve read? \nA.  It is possible.  Correct.... \nQ.  When you go in, for example, and do the carpal tunnel \nrelease, what you do is, you go in and essentially free up the \nmedian nerve within the carpal tunnel? \nA.  Correct.   \nQ.  And that doesn’t tell you, or does it, when you go in and \nyou look at the median nerve, what is causing inflammation to \nthe nerve? \nA.  I do not.  I cannot tell what’s causing it.... \nQ.  When was the very first time that you heard talk about this \ncondition of her being alleged to be work-related? \nA.  When you sent me a message about a deposition.   \nQ.  Okay.  Before I asked you for your deposition, did you \nhave any opinion at all about whether this condition of hers \nwas or was not work-related? \nA.  I did not have an opinion.... \nQ.  Would it be fair to say that she has, at least, indicated that \nher symptoms she feels are worse when she’s using her \nhands at work? \nA.  Correct.   \nQ.  Would it also be correct to say that there’s a temporal \nproximity between her blood sugars being out of control and \nher presentation for treatment of those symptoms, both in \nterms of coming – showing up, and also reporting severity? \nA.  Correct.   \nQ.  Is there any way to state within a reasonable degree of \nmedical certainty which of these causes or potential causes is \n\nGUTIERREZ - H302799  9\n  \n \n \nthe cause of her carpal tunnel syndrome, as opposed to the \nsymptoms just manifesting at a given time? \nA.  It is not possible to say.   \nQ.  Would it be fair to say that it’s not surprising that she has \nsymptoms of pain and these carpal tunnel symptoms when \nshe’s using her hands a lot? \nA.  It is fair to say that.  Correct.   \nQ.  Because – and then, if she has carpal – underlying carpal \ntunnel syndrome from whatever reason, it would be – would it \nbe expected for her to have those symptoms manifest when \nshe’s using her hands a lot? \nA.  Yes.   \n \n The claimant’s attorney cross-examined Dr. Chen: \nQ.  I represent your patient, Giselda Gutierrez, and I am just \ntrying to figure out a little bit about this.  Because I thought I \nheard you say, at the very beginning of your deposition, that \nyou would not say that diabetes is causative of carpal tunnel \nsyndrome. \nA.  Correct.  I said “correlation,” but not causation.   \nQ.  Okay.  So a person who does rapid and repetitive work – \nwe’re talking about maybe 50 breasts per minute – who has \ndone that for, not only weeks and months, but years, would \nthat be a common cause of carpal tunnel syndrome? \nA.  No.  The literature used to think that repetitive motion \ncaused it.  The newer literature does not support that.  \nUsually, it is repetitive trauma to it, such as, like, \njackhammering for long periods of time.  But repetitive action \nis not – the newer literature shows that actions are not a \ncause, but it can exacerbate the symptoms.  But it is not the \ncause, typically. \nQ.  So the grasping and gripping of items in a quick way, the \nsqueezing of your hands that we’ve thought, for years, was \ncausative of carpal tunnel syndrome, would that be \nconsidered a trauma, repeatedly, over weeks and months? \nA.  No.  No.  They’re very specific on it, where it’s – it’s a \nrepetitive – not grasping, but it is repetitive trauma to the \ncarpal tunnel.... \nQ.  How would there be a correlation between someone that \ndoes this – not just repetitive, but the rapid and repetitive, \n\nGUTIERREZ - H302799  10\n  \n \n \nsame motion, in a rapid way, over and over – how would that \nbe correlated? \nA.  So – to me, carpal tunnel is idiopathic.  The majority of \ncarpal tunnel symptoms are because, hey, you’re getting \nolder.  When you move your wrist around, it causes \ncompression - or it causes the tunnel to become smaller.  So \nif you’re moving your wrist around, it doesn’t cause carpal \ntunnel, but it causes the wrist to be smaller, which is why we \nhave your wear braces.  So when your wrist is straight, it is \nbigger.  So the motion of your wrist, when you move it up and \ndown, makes that tunnel smaller, but it does not cause – \nwhich is the thickening of the transverse carpal ligament \nwhich is what is the – what is – what we think is the cause of \nthe carpal tunnel....Or of carpal tunnel syndrome.... \n \n A hearing was held on November 29, 2023.  The claimant testified \nthat she had returned to work for the respondent-employer, but that she \ncontinued to suffer with pain in her right hand and right elbow.  An \nadministrative law judge filed an opinion on December 19, 2023 and found \nthat the claimant failed to prove she sustained a compensable injury.  The \nclaimant appeals to the Full Commission.   \nII.  ADJUDICATION \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012) provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(ii)  An injury causing internal or external physical harm to the \nbody and arising out of and in the course of employment if it is \nnot caused by a specific incident and is not identifiable by time \nand place of occurrence, if the injury is: \n(a)  Caused by rapid repetitive motion.  Carpal tunnel \nsyndrome is specifically categorized as a compensable injury \nfalling within this definition[.]   \n \n\nGUTIERREZ - H302799  11\n  \n \n \n Ark. Code Ann. §11-9-102(4)(A)(ii)(Repl. 2012) explicitly provides \nthat carpal tunnel syndrome is both compensable and falls within the \ndefinition of rapid repetitive motion.  Kildow v. Baldwin Piano & Organ, 333 \nArk. 335, 969 S.W.2d 190 (1998).   \nA compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) further provides, in \npertinent part: \n(E)  BURDEN OF PROOF.  The burden of proof of a \ncompensable injury shall be on the employee and shall be as \nfollows: \n(ii)  For injuries falling within the definition of compensable \ninjury under subdivision (4)(A)(ii) of this section, the burden of \nproof shall be by a preponderance of the evidence, and the \nresultant condition is compensable only if the alleged \ncompensable injury is the major cause of the disability or need \nfor treatment.   \n \n Preponderance of the evidence means the evidence having greater \nweight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 \nArk. App. 269, 101 S.W.3d 252 (2003).  “Major cause” means “more than \nfifty percent (50%) of the cause,” and a finding of major cause shall be \nestablished according to the preponderance of the evidence.  Ark. Code \n\nGUTIERREZ - H302799  12\n  \n \n \nAnn. §11-9-102(14)(Repl. 2012).  The claimant must prove that the alleged \ncompensable injury, not her work, is the major cause of the disability or \nneed for treatment.  Medlin v. Wal-Mart Stores, Inc., 64 Ark. App. 17, 977 \nS.W.2d 239 (1998).     \n An administrative law judge found in the present matter, “2.  \nClaimant 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 \nor about June 15, 2022.”  The Full Commission does not affirm the \nadministrative law judge’s finding.  The Full Commission finds that the \nclaimant proved she sustained a compensable injury. \n The claimant testified that she became employed with the \nrespondents in 2003, and the parties stipulated that the employment \nrelationship existed on June 15, 2022.  The claimant testified that her right \nwrist began hurting in 2022 as a result of her strenuous work activities for \nthe respondents.  The determination of the credibility and weight to be given \na witness’s testimony is within the sole province of the Commission.  \nMurphy v. Forsgren, Inc., 99 Ark. App. 223, 258 S.W.3d 794 (2007).  The \nFull Commission finds in the present matter that the claimant was a credible \nwitness.  The claimant credibly described processing chickens for the \nrespondents on an assembly line, which work began in 2003.  The claimant \ntestified that she reported her work-related symptoms to a company nurse \n\nGUTIERREZ - H302799  13\n  \n \n \nand a supervisor beginning in 2022.  The claimant testified that the pain \nradiated from her right wrist to her elbow.  The claimant testified that she \nsought treatment with Dr. Smiley who referred her to Dr. Chen. \n The medical evidence of record corroborated the claimant’s \ntestimony.  Dr. Chen reported beginning in October 2022 that the claimant \nwas suffering from pain in her bilateral extremities but primarily pain in her \nright wrist.  An October 6, 2022 report from Mercy Clinic Orthopedics \nRogers confirmed that the claimant’s pain was worsened by her “Work.”  Dr. \nChen noted that the claimant had been suffering from pain for three \nmonths.  Dr. Chen assessed “uncontrolled diabetes” and “Right carpal \ntunnel syndrome.”  Dr. Johnson performed objective electrodiagnostic \ntesting on November 30, 2022 and assessed “Bilateral carpal tunnel \nsyndrome,” “severe on the right and moderate on the left.”  Dr. Johnson \nrecommended “Bilateral carpal tunnel releases beginning on the right.”  Dr. \nChen performed a right carpal tunnel release on January 16, 2023.   \n The Full Commission finds that the claimant proved she sustained a \ncompensable injury in accordance with Ark. Code Ann. §11-9-\n102(4)(A)(ii)(a)(Repl. 2012).  We recognize Dr. Chen’s deposition testimony \nconcerning his diagnosis of “uncontrolled diabetes” with regard to the \nclaimant’s carpal tunnel syndrome.  Dr. Chen found that it was “not possible \nto say” whether the claimant’s symptoms were related to carpal tunnel \n\nGUTIERREZ - H302799  14\n  \n \n \nsyndrome rather than diabetes.  Dr. Chen opined at deposition that the \nclaimant’s carpal tunnel syndrome was “idiopathic” and was not related to \nrepetitive trauma.  The Commission has the authority to accept or reject \nmedical opinion and the authority to determine its medical soundness and \nprobative force.  Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 \nS.W.2d 692 (1999).  It is within the Commission’s province to weigh all of \nthe medical evidence and to determine what is most credible.  Minnesota \nMining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  In the present \nmatter, the Full Commission finds that Dr. Chen’s opinion with regard to \ncausation is entitled to minimal evidentiary weight.  The evidence of record \ndoes not support Dr. Chen’s opinion that the claimant’s carpal tunnel \ncondition was “idiopathic” or was causally related to “uncontrolled diabetes.”          \n The Full Commission finds that the claimant proved by a \npreponderance of the evidence that she sustained a compensable injury.  \nThe claimant proved that she sustained a compensable right carpal tunnel \nsyndrome injury which caused physical harm to the body, arose out of and \nin the course of the claimant’s employment with the respondents, and was \nnot identifiable by time and place of occurrence.  The claimant also \nestablished a compensable injury by medical evidence supported by \nobjective findings, namely Dr. Johnson’s assessment of carpal tunnel \nsyndrome based on objective electrodiagnostic testing.  The claimant \n\nGUTIERREZ - H302799  15\n  \n \n \nproved that the compensable injury was the major cause of her disability \nand need for treatment.   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved she sustained a compensable right carpal tunnel \nsyndrome injury in accordance with Ark. Code Ann. §11-9-\n102(4)(A)(ii)(a)(Repl. 2012).  The claimant proved that she provided timely \nnotice on or about June 15, 2022, when the claimant reported the \ncompensable injury to a company nurse and a supervisor.  The record \ntherefore indicates that the employer had knowledge of the injury in \naccordance with Ark. Code Ann. §11-9-701(b)(1)(A)(Repl. 2012).  The \nevidence of record demonstrates that the assessment of “Right lateral \nepicondylitis” was a natural consequence of the claimant’s compensable \nright carpal tunnel syndrome injury.  See Nichols v. Omaha Sch. Dist., 2010 \nArk. App. 194, 374 S.W.3d 148.  The claimant proved that the medical \ntreatment of record, including surgery performed by Dr. Chen and \nsubsequent treatment provided by Audrey C. Smith, was reasonably \nnecessary in accordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nFinally, the evidence demonstrates that the claimant remained within a \nhealing period and did not return to work beginning January 16, 2023 and \ncontinuing until February 1, 2023.  The claimant therefore proved that she \nwas entitled to temporary total disability beginning January 16, 2023 and \n\nGUTIERREZ - H302799  16\n  \n \n \ncontinuing until February 1, 2023.  See Wheeler Constr. Co. v. Armstrong, \n73 Ark. App. 146, 41 S.W.3d 822 (2001). \n The claimant’s attorney is entitled to fees for legal services in \naccordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing \non appeal, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. \n2012).   \n IT IS SO ORDERED.        \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION \n I must respectfully dissent from the Majority’s finding that the \nclaimant proved by a preponderance of the evidence that she sustained a \ncompensable gradual onset injury to her right wrist. \nIt is undisputed that the claimant was diagnosed with bilateral carpel \ntunnel syndrome in November of 2022 and underwent right carpel tunnel \nrelease in January of 2023.  What is at issue here is the whether the \n\nGUTIERREZ - H302799  17\n  \n \n \nclaimant has established that her work for the respondent employer was the \nmajor cause of her right carpal tunnel syndrome as required by our Rules.  \nIt is well settled that carpal tunnel syndrome (CTS) constitutes a \ngradual onset injury and the claimant is therefore not required to establish \nthat her injury was caused by rapid and repetitive motion.  Kildow v. \nBaldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).  However, \nshe must still prove that (1) her CTS arose out of and in the course and \nscope of her employment; (2) her injury caused internal or external physical \nharm to the body that required medical services or resulted in disability; and \n(3) the injury was the major cause of the disability or need for treatment. \nArk. Code Ann. § 11-9-102(4)(A)(i),(ii), (E)(ii). \nHere, the claimant was diagnosed with Type II Diabetes twelve years \nprior to the onset of her CTS symptoms.  (Hrng.  Tr., P. 12).  At the \nclaimant’s initial visit with Dr. Andreas Chen on October 6, 2022, the \nclaimant was living with uncontrolled diabetes and her A1c was greater than \n12.  (Hrng. Tr., P. 16; Cl. Ex. 1, P. 1).  In his deposition testimony, Dr. Chen \nexplained the relationship between diabetes and CTS symptoms: \nQ: (by Mr. Swearingen) In the \nOctober 6th chart dictation, \nthere’s mention of \nuncontrolled diet.  She’s an \nuncontrolled diabetic with \nan A1C greater than 12. \nAnd why is that, in your \nopinion, relevant to a \n\nGUTIERREZ - H302799  18\n  \n \n \ndiscussion of carpal tunnel \nor upper extremity \ncomplaints like this?  \n \nA: So there are a couple of \nreasons.  One is that \ndiabetes can increase your \nsymptoms of carpal tunnel \nsyndrome. Number two is \nthat I would not intervene on \nany -- I would not intervene \non her care, if her diabetes \nwas uncontrolled, so -- \nbecause the risk of infection \ngoes up significantly, if her -\n- your sugars are \nuncontrolled.  I would -- that \nis my way of saying, hey, I \nwould not operate on her. It \nalso says, hey, I would not \ngive her a steroid injection, \neither. \n \n(Depo. of Dr. Andreas Chen, P. 11). \n Dr. Chen testified that some diabetics are more likely to develop \nCTS, and that the glucose in a diabetic person can accumulate around the \nmedian nerve and cause inflammation in the carpal tunnel which tends to \nproduce symptoms.  (Depo., P. 12).  In fact, resolution of uncontrolled blood \nsugar can decrease or even eliminate the symptoms of CTS.  (Depo., P. \n15).  Dr. Chen stated when he performs surgery and releases the median \nnerve within the carpal tunnel, there is no way to determine what is causing \nthe inflammation, whether it is CTS or diabetes.  In other words, Dr. Chen \ncannot determine whether the CTS is a result of job activities or diabetes.            \n\nGUTIERREZ - H302799  19\n  \n \n \n(Depo., Pp. 13,14).  Dr. Chen testified that he was unwilling to state within a \nreasonable degree of medical certainty that the claimant’s CTS resulted \nfrom her job activities: \nQ: (by Mr. Swearingen) So as \nwe sit here today, with Ms. \nGutierrez specifically, is \nthere any way -- and let me \npreface this by saying, \nwould it be correct to say \nthat Ms. Gutierrez gave you \na history of noticing \nproblems with her hands \nwhen she used them a lot at \nwork? \n \nA: Ask that question again. \n \nQ: Sure.  And I’m going back to \nthe very, very –  \n  \nA: Yes. \n \nQ: -- intake form. She said -- \n“What makes your pain \nworse?” “Work.”  \n \nA: Correct. \n \nQ: And she has a hand-\nintensive job. Would it be \nfair to say that she has, at \nleast, indicated that her \nsymptoms she feels are \nworse when she’s using her \nhands at work?  \n \nA: Correct.  \n \n\nGUTIERREZ - H302799  20\n  \n \n \nQ: Would it also be correct to \nsay that there’s a temporal \nproximity between her blood \nsugars being out of control \nand her presentation for \ntreatment of those \nsymptoms, both in terms of \ncoming -- showing up, and \nalso reporting severity? \n \nA: Correct.  \n \nQ: Is there any way to state \nwithin a reasonable degree \nof medical certainty which of \nthese causes or potential \ncauses is the cause of her \ncarpal tunnel syndrome, as \nopposed to the symptoms \njust manifesting at a given \ntime?  \n \nA: It is not possible to say.  \n \nQ: Would it be fair to say that \nit’s not surprising that she \nhas symptoms of pain and \nthese carpal tunnel \nsymptoms when she’s using \nher hands a lot? \n  \nA: It is fair to say that.  Correct. \n \nQ: Because -- and then, if she \nhas carpal -- underlying \ncarpal tunnel syndrome \nfrom whatever reason, it \nwould be -- would it be \nexpected for her to have \nthose symptoms manifest \nwhen she’s using her hands \na lot? \n\nGUTIERREZ - H302799  21\n  \n \n \n \nA: Yes. \n \nQ: Would it also be expected \nthat -- if her blood sugar \nbecomes more out of \ncontrol, getting into those \nupper levels, like 250, 300, \nwould it also be expected \nfor her to experience \nsymptoms from her carpal \ntunnel syndrome at those \ntimes where her blood \nsugar is way out of control? \n \nA: Yes. \n \nQ: Would it be fair to say that \ncorrelation doesn’t \nnecessarily mean \ncausation? \n \nA: Correct. \n \n(Depo., Pp. 26-28). \nThe Commission has the authority to accept or reject medical \nopinions.  Williams v. Ark. Dept. of Community Corrections, 2016 Ark. App. \n427, 502 S.W. 3d 530 (2016).  Furthermore, it is the Commission's duty to \nuse its experience and expertise in translating the testimony of medical \nexperts into findings of fact and to draw inferences when testimony is open \nto more than a single interpretation.  Schulgen v. Lowe's Home \nImprovement Ctrs., 2022 Ark. App. 166, 644 S.W.3d 433 (2022). \n\nGUTIERREZ - H302799  22\n  \n \n \nDr. Chen’s opinion is entitled to significant weight as the claimant’s \ntreating and operating physician.  In his testimony, Dr. Chen was explicit in \nhis refusal to state within a reasonable degree of medical certainty that the \nclaimant’s work was the cause of her CTS.  This opinion is based on his \nexperience, training, and current medical literature which is widely accepted \nwithin the medical community.  (Depo., P. 38).  \nBased on Dr. Chen’s testimony, the claimant has failed to prove by a \npreponderance of the evidence that her job duties were the major cause of \nher need for medical treatment.  It is undisputed that the claimant presented \nto Dr. Chen with uncontrolled diabetes and an elevated A1c greater than 12 \nat the same time that her complaints of CTS symptoms began.  Dr. Chen \ntestified he cannot state within a reasonable degree of medical certainty the \nclaimant’s CTS issues are related to her work for the respondent employer. \nThe claimant has failed to prove that her work for the respondent employer \nwas the greater cause for her CTS than her uncontrolled blood sugar. \nAccordingly, for the reasons stated above, I respectfully dissent. \n  \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H302799 GISELA GUTIERREZ, EMPLOYEE CLAIMANT TYSON POULTRY, INC., EMPLOYER RESPONDENT TYNET CORPORATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 31, 2024","fetched_at":"2026-05-19T22:29:45.561Z","links":{"html":"/opinions/full_commission-H302799-2024-05-31","pdf":"https://labor.arkansas.gov/wp-content/uploads/Gutierrez_Gisela_H302799_20240531.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}