In re Compensation of Green, 110819 ORWC, 18-01002

Case DateNovember 08, 2019
CourtOregon
71 Van Natta 1288 (2019)
In the Matter of the Compensation of JENNIFER L. GREEN, Claimant
WCB No. 18-01002
Oregon Worker Compensation
November 8, 2019
          Julene M Quinn LLC, Claimant Attorneys           SAIF Legal Salem, Defense Attorneys           Reviewing Panel: Members Curey and Ousey.           ORDER ON REVIEW          The SAIF Corporation requests review of Administrative Law Judge (ALJ) Sencer’s order that set aside its denial of claimant’s occupational disease claim for bilateral carpal tunnel syndrome (CTS). In her respondent’s brief, claimant challenges the ALJ’s $14,000 attorney fee award. On review, the issues are compensability and, potentially, attorney fees. We reverse.          FINDINGS OF FACT          On March 16, 2015, before working for SAIF’s insured, Dr. Opel examined claimant and diagnosed a number of active medical problems, including diabetes and obesity. (Ex. 3).          Claimant began work for the employer as a deli clerk on October 4, 2016. (Ex. 17). Her work involved a variety of repetitive, hand-intensive activities, including: slicing meats, using tongs to handle food items, cooking chicken, cleaning kitchen equipment, preparing ready-to-eat food products using a spatula, using a scoop to fill buckets with ice, weighing and labelling items, and washing dishes. (Tr. 17-21). She is 46 years of age and right-hand dominant. (Ex. 17; Tr. 27). She used her right hand to work with tongs and spatulas, unless she was unable to do so because of the activity she was performing, in which case she might have to flip back and forth between hands. (Tr. 27). More generally, she described her right hand as her “go-to” hand. She estimated that she used her right hand 70 percent of the time as compared to her left hand. (Id.)          Claimant attended a September 25, 2017, office visit with Dr. Gulick, her primary care physician. (Ex. 7; Tr. 22). Dr. Gulick noted that claimant was tender in all fibromyalgia trigger points. (Ex. 7-2). Claimant also complained of a left-arm-more-than-right-arm diffuse decrease in sensation. (Id.) Dr. Gulick reported that this decreased sensation occurred in a non-dermatomal pattern extending to claimant’s shoulders. (Id.) Tinel’s and Phalen’s tests at the elbow and wrist were negative. (Id.) Dr. Gulick referred claimant to a neurologist due to the development of “unexplainable paresthesias in [her] upper extremities.” (Ex. 7-3).          [71 Van Natta 1289] On referral from Dr. Gulick, claimant was seen by Dr. Lyons for a neurological consultation. (Ex. 9). Claimant demonstrated a patchy sensation decrease in both distal upper extremities. (Ex. 9-2). Dr. Lyons assessed non-dermatomal pain and weakness in the upper extremities. He suspected claimant’s symptoms might all be due to fibromyalgia. (Id.) However, he scheduled a cervical MRI and electrodiagnostic testing to exclude a cervical process, a carpal tunnel condition, or an ulnar neuropathy. (Id.)          On November 29, 2017, Dr. Lyons administered an upper extremity electromyography. (Ex. 10). The testing revealed prolonged bilateral median motor latency (6.8 on the right and 7.5 on the left, whereas the anticipated normal range is 2.4 to 4.4) and reduced median motor amplitudes relative to ulnar amplitudes (6.0 on the right and 8.0 on the left). Median sensory responses were unobtainable bilaterally. Dr. Lyons interpreted the test results as disclosing bilateral median neuropathy at the wrist of at least moderate severity. (Id.)          Claimant was re-examined by Dr. Gulick on December 15, 2017. (Ex. 13-3). Dr. Gulick noted claimant’s report of “pain from her head to toes in all joints in all muscles from the moment she wakes to the moment she sleeps.” (Id.) Dr. Gulick further noted that repeated testing disclosed that claimant was trending toward hypothyroidism, and he diagnosed subclinical hypothyroidism. (Id.) In terms of her diagnosed bilateral CTS, Dr. Gulick provided claimant with wrist splints and directed that she decrease the repetitive use of her wrists at work. (Ex. 13-4). Dr. Gulick indicated that she would be referred to surgery to address her CTS condition. (Id.)          Claimant completed an 801 form on January 3, 2018, for bilateral CTS. (Ex. 17). She attributed her claimed condition to 15 months of repetitive motions while working in SAIF’s insured’s deli. (Id.)          On February 7, 2018, Dr. Nolan, a specialist in hand and microsurgery, performed an insurer-arranged medical examination. (Ex. 21). Dr. Nolan reported that he had reviewed “the accompanying medical reports * * * including those by Dr. Gulick, etc.” (Ex. 21-2). He did not have claimant’s electrodiagnostic studies. (Ex. 21-4). Dr. Nolan inquired about claimant’s daily work activities, and he reviewed a 17-minute video of an individual performing some of the duties of a clerk in SAIF’s insured’s deli. (Ex. 21-2, -6). Based on his evaluation of claimant and the records he possessed, Dr. Nolan opined that claimant’s factors of gender, borderline obesity, subclinical hypothyroidism, and age outweighed work-related factors in terms of causing her bilateral CTS. (Ex. 21-6). He [71 Van Natta 1290] reasoned that work activities must be both repetitive and forceful in order to be a cause of CTS. (Ex. 21-5). He found claimant’s work...

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