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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
1995 MTWCC 110
STATE COMPENSATION INSURANCE FUND
ORDER ON APPEAL
Summary: Claimant appealed decision of DOL hearing examiner that claimant had not proved her alleged carpal tunnel syndrome was an occupational disease.
Held: Hearing examiner’s decision was not clearly erroneous in view of the probative, reliable and substantial evidence in the record. The fact that claimant may have suffered from carpal tunnel syndrome does not prove that her syndrome was caused, in whole or in part, by occupational factors. She had a prior history of hand problems, her job involved less repetitive hand motion than she claimed, and the medical evidence did not establish a causal connection.
The appellant, Nicky Shorten (claimant), claims she suffers from occupationally related carpal tunnel syndrome (CTS). In Findings of Fact; Conclusions of Law; Final Order, issued August 8, 1995, the Department of Labor and Industry denied her claim. This appeal followed that decision.
Factual and Procedural Background
1. The Claim
After ten years of unemployment, on February 1, 1993, claimant took a job as a temporary receptionist for TOS & Associates (TOS). Claimant worked for TOS until May 28, 1993. Her duties during that time were described by the Department's hearing examiner as follows:
(Findings of Fact 3 and 4.)
Immediately following her termination of employment, claimant filed a written claim for compensation stating that "when using the calculator, computer, and typewriter [at work] my wrists and hands started hurting me, going numb, making it hard for me to control them." (Ex. 2.) The claim was submitted to the State Compensation Insurance Fund, which insured TOS. The State Fund denied liability under the Workers' Compensation Act but advised claimant's attorney that it was conducting an investigation into the possibility that she may suffer from an occupational disease.
2. Occupational Disease Medical Panel Examinations and Reports
On September 2, 1993, the State Fund denied liability for claimant's condition as an occupational disease but referred her claim to the Department of Labor and Industry. The Department then directed the claimant to an examination by Dr. Pius Baggenstos, who is a board certified neurosurgeon and a member of the Montana Occupational Disease Panel. The doctor examined claimant in November 1993, and concluded:
(Ex. 4.) In reaching his opinions Dr. Baggenstos reviewed all medical reports in the Department file.
Pursuant to section 39-72-602(b), MCA, the claimant requested and underwent a second examination by Dr. Dana Headapohl, Medical Director of the Occupational Health Department, St. Patrick Hospital in February 1994. Following examination, Dr. Headapohl responded to specific questions asked by the Department:
The request for a second examination triggered the appointment of a third physician as panel chair. § 39-72-602(2)(b), MCA. At the request of the Department, Dr. William Shaw, who is board certified in occupational medicine, served as the chair. He reviewed the medical records of the claimant and discussed the case with Drs. Baggenstos and Headapohl. To a reasonable degree of medical certainty Dr. Shaw concluded:
(Ex. 10.) Dr. Shaw's report was made April 28, 1994.
3. Additional Medical Information
Medical records submitted to the hearing examiner showed that, notwithstanding claimant's testimony to the contrary, claimant began to complain of hand and wrist problems in 1991. Office notes of an examination of claimant on November 25, 1991, by Dr. Elton Adams, a reheumtologist, reflect the following history:
(Ex. 9.) The doctor diagnosed her condition as primarily fibromyalgia and Raynaud's syndrome(1) which is sometimes associated with fibromyalgia but may be associated with other connective tissue disorders. (Id.) On the August 28, 1992 visit, the doctor noted:
(Id.) On October 23, 1992, Dr. Adams noted that claimant reported that she "still has aching in her hands and feet. . . ." On exam he found her wrists to be normal, but noted that she did have tenderness over several of her proximal interphalangeal joints. (Id.)
Shortly before her temporary employment ended, on May 12, 1993, claimant saw Dr. Jean Justad, an internist. At that time, claimant was complaining of bilateral wrist pain and told the doctor that it had been getting progressively worse since she took a job involving typing. (Ex. 7.) Dr. Justad noted probable carpal tunnel syndrome and recommended that she wear wrist splints.
Dr. Justad also referred claimant to Dr. Brooke Hunter, an orthopedic surgeon, who examined claimant on May 28, 1993. Dr. Hunter noted a "[l]ong history of bilateral wrist and hand numbness and tingling." (Ex. 6 at 2.) Following examination, he wrote:
(Id.) He recommended use of splints, prescribed anti-inflammatory medications, and ordered electrical diagnostic studies. (Id.)
Dr. Charles Anderson, a neurologist, did nerve conduction studies on June 7, 1993. The studies were normal. (Ex. 8.)
Claimant participated in an occupational therapy program from June 29, 1993 through September 9, 1993, a total of nine times. The occupational therapist noted that claimant did not follow through with her home program. The claimant advised the therapist that "I am not going to do anything that makes my wrists hurt." (Ex. 6 at 16.)
Claimant returned to Dr. Adams on November 29, 1993. At that time the claimant told him that her hands continued to turn blue and white when exposed to cold and that her hands and wrists hurt. Dr. Adams' impression was that she continued to suffer from "Arthralgias(5), in part fibromyalgia. Raynaud's." (Ex. 9 at 6.)
Dr. Adams saw claimant on January 26, 1994. At that time he noted that "[w]ith Phalen's, she develops numbness in her fingers, median nerve distribution." (Id. at 10.) His diagnostic impression on that date was "Arthralgias; Raynaud's probable carpal tunnel." He recommended the use of splints for her wrists. Dr. Adams has offered no opinion regarding any causal connection between the claimant's employment and her probable carpal tunnel condition.
On her own the claimant thereafter sought treatment from Dr. Stephen Powell, M.D., and orthopedic surgeon in Missoula, Montana. Dr. Powell examined claimant on March 7, 1994. Based on history and physical findings Dr. Powell's impression was "typical of carpal tunnel syndrome." (Ex. B-1.) The nerve conduction studies done by Dr. Powell were negative, but the claimant reported a continuation of the symptoms. On April4, 1994, Dr. Powell performed bilateral carpal tunnel surgery on claimant. Claimant had good recovery and subjectively reports improvement of her symptoms. On August 18, 1994, Dr. Powell released her to full activity. (Unmarked Ex. B-7.)(6)
Based on the history provided by claimant of her symptoms. Dr. Powell observed, "This sounds as though it was work induced initially and that her symptoms are better since she stopped working." (Ex. B-1; emphasis added.) The only other reference made by Dr. Powell to the claimant's work activity was on June 23, 1994, when he noted:
(Ex. B1.) While Dr. Powell indicated that claimant's condition "sounds as though it was work induced initially", the words "sound as though" fall short of a medical opinion on a more probable than not basis. Dr. Powell's records do not indicate that he reviewed the medical records of Dr. Adams, Dr. Justad, Dr. Hunter, Dr. Baggenstos, Dr. Anderson, Dr. Headapohl or Dr. Shaw, although he mentions claimant did report to him that she had been seen by the first five doctors, at least post-employment, and that Dr. Adams had diagnosed "Raynaud's phenomenon" and was 'watching her for Lupis [sic]." (Ex. B-1.) Dr. Powell's records also do not indicate that he was aware that claimant had experienced hand symptoms prior to her employment. According to his notes:
4. Department Proceedings and Decision
On May 20, 1994, the Department issued a preliminary determination finding that the claim for occupational disease benefits should be denied. (Ex. 17.) On May 24, 1994, claimant requested a hearing.
A hearing was held on November 22, 1994. Claimant, claimant's husband, and Tom Swindle testified. Neither party called medical witnesses to testify. The medical part of the case was submitted entirely on medical records and reports.
On August 10, 1995, the hearing examiner issued his findings and conclusions determining that claimant is not entitled to benefits under the Occupational Disease Act. The hearing examiner rejected claimant's testimony that her employment at TOS involved forty-plus hours a week of continual data entry. (Conclusion of Law 4.) He also specifically rejected testimony by claimant and her husband that she had not experienced difficulties with her hands and wrists prior to going to work for TOS. Ultimately, he concluded that claimant had failed to prove that "her apparent CTS was directly tied to her work, followed as a natural incident of work, was fairly traced to her limited work, or could not have come from some other cause, and could only have come from work exposure." (Conclusion of law 4; underlining in the original.) He pointed out that the panel physicians, who specifically addressed the occupational disease question, "uniformly concluded that the claimant does not suffer from an occupational disease nor does she meet the criteria for entitlement." (Id.; underlining in the original.) He further relied on evidence showing that 1) the claimant had suffered from problems with her hands and wrists since 1991 (despite her testimony to the contrary) and that 2) her work was very light work and did not require extensive keyboarding or operation of a ten key calculator. Finally, he was unpersuaded by Dr. Powell's comment, which he characterized as 'surmise", concerning a possible relationship of her condition to her work since it was based on claimant recitation of her history, which left out her earlier onset of hand symptoms, and did not address the specific elements necessary to establish an occupational disease.
Standard of Review on Appeal
Section 39-72-612(2), MCA, provides for a direct appeal to the Workers' Compensation Court from the DLI's final order in an occupational disease case. The section further provides:
Under the clearly erroneous standard of subparagraph (e), the hearing examiner's findings of fact must be overturned on judicial review where they are "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record." State Compensation Mutual Insurance Fund v. Lee Rost Logging, 252 Mont. 97, 102, 827 P.2d 85 (1992) (quoting section 2-4-704(2)(a)(v), MCA). The Court will not reweigh the evidence; the findings and conclusions of the fact finder will be upheld if they are supported by substantial credible evidence in the record. Nelson v. EBI Orion Group, 252 Mont. 286, 289, 829 P.2d 1 (1992). Conclusions of law, however, must be examined to determine if they are correct. Steer, Inc. v. Department of Revenue, 245 Mont. 470, 474-75, 803 P.2d 601 (1990).
Section 39-72-408, MCA, sets out the criteria which must be met in order to determine that a disease is proximately caused by employment.
Section 39-72-706, MCA, governs cases where the claimant's disease is due to a combination of occupational and non-occupational factors:
Under these sections, the fact that a claimant suffers from carpal tunnel syndrome is not sufficient to impose liability on an insurer. A claimant must also show that her CTS arises from or was aggravated by her employment and that the last injurious exposure occurred at the place of her employment.
The critical facts found by the hearing examiner are supported in the record. While Drs. Powell, Justad and Adams all indicate that claimant suffered from "probable" carpal tunnel syndrome, none of these doctors provided medical opinions addressing the statutory criteria for causation. On the other hand, the medical panel members concluded that her medical condition was not occupationally related.
Claimant's assertions that the conclusions of the panel were "all speculation" and that the panel physicians were "hired guns" of the State Fund are without merit. As this Court wrote in Katella v. Plum Creek Timber Co., WCC No. 9501-7214, Decision and Judgment on Appeal, June 30, 1995 at 9, 10:
The claimant argues that because the carpal tunnel surgery has helped her symptoms it therefore must be work related. From the fact that claimant may have suffered from carpal tunnel syndrome it does not follow that her syndrome was the consequence, in whole or in part, of occupational forces. She had a prior history of hand problems, which she denied when she testified and which she did not fully disclose to Dr. Powell. Her job involved far less of the repetitive hand motion typically associated with carpal tunnel than she claimed. The medical evidence did not establish a casual connection.
The decision of the hearing examiner was not clearly erroneous in view of the probative reliable and substantial evidence on the whole record.
The August 8, 1995 Findings of Fact; Conclusions of Law; Final Order of the Department of Labor and Industry are affirmed.
DATED in Helena, Montana, this 22nd day of December, 1995.
c: Mr. John C. Doubek
1. Raynaud's p., intermittent bilateral attacks of ischemia of the fingers or toes and sometimes of the ears or nose, marked by severe pallor, and often accompanied by paresthesia and pain; it is brought on characteristically by cold or emotional stimuli and relieved by heat, and is due to an underling disease or anatomical abnormality. When the condition is idiopathic or primary it is termed Raynaud's disease. DORLAND'S MEDICAL DICTIONARY, 27th Edition at 491.
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