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...