Martinez, 091517 ARWC, G701528

• Case Date: September 15, 2017
• Court: Arkansas

JUANA MARTINEZ, Employee CLAIMANT BIO TECH PHARMACAL, INC., Employer RESPONDENT PATRIOT RISK SERVICES, INC., RESPONDENT Insurance Carrier/TPA No. G701528 Arkansas Workers Compensation Before the Arkansas Workers' Compensation Commission September 15, 2017          Pre-hearing conference before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Springdale, Washington, Arkansas.           Claimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas.           Respondents represented by MICHAEL E. RYBURN, Attorney, Little Rock, Arkansas.           ERIC PAUL WELLS, ADMINISTRATIVE LAW JUDGE.          STATEMENT OF THE CASE          On June 20, 2017, the above captioned claim came on for a hearing at Springdale, Arkansas. A pre-hearing conference was conducted on April 19, 2017, a pre-hearing order was filed on April 19, 2017, and an amended pre-hearing order was filed on June 14, 2017. A copy of the pre-hearing order has been marked Commission's Exhibit No. 1 and made a part of the record without objection.          At the pre-hearing conference the parties agreed to the following stipulations:

1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim.

2. On all relevant dates, the relationship of employee-employer-carrier existed between the parties.

3. The claimant’s weekly compensation rates are temporary total disability $479.00 and permanent partial disability $357.00.

         By agreement of the parties the issues to litigate are limited to the following:

1. Whether claimant sustained a compensable gradual onset right elbow injury on or about October 8, 2015.

2. Whether claimant is entitled to medical treatment.

3. Whether claimant is entitled to temporary total disability benefits from November 14, 2016 to a date yet to be determined.

4. Respondents raise lack of notice defense.

5. Whether claimant’s attorney is entitled to an attorney’s fee.

         The claimant's contentions are as follows:

“On October 18, 2015, claimant developed bilateral elbow injuries while working. The claimant reserves all other issues.”

         The respondents’ contentions are as follows:

“The claimant was not injured at work. The claimant did not inform the employer of a work related injury until after she had surgery. The first notice appears to be the Form C. The claimant does not have a rapid and repetitive job.”

         The claimant in this matter is a 47-year-old female who was employed by the respondent performing cleaning and janitorial type duties when she alleges to have suffered a compensable gradual onset right elbow injury culminating on or about October 8, 2015. The respondent is engaged in the business of vitamin and supplement production. When the claimant was first employed by the respondent, she had job duties that included cleaning, filling capsule bottles and then closing said bottles. The claimant testified that her work transitioned to predominantly cleaning and janitorial duties between 2011 and 2012 when the respondent installed an automated line.          The claimant has had difficulties with her upper extremities bilaterally that are not subject to this case and are not claimed as workers’ compensation injuries. The claimant has had carpal tunnel surgery bilaterally. The claimant had right carpal tunnel surgery in 2012 and again in 2017. The claimant had left carpal tunnel surgery in 2015 according to her testimony.          The claimant alleges that her gradual onset right elbow difficulties culminated on or about October 8, 2015. The claimant was seen by Dr. Mark Powell on that date. However, the medical record from that visit states: “CHIEF COMPLAINT: Left carpal tunnel syndrome” and makes no mention of right elbow symptoms or difficulties. That same medical record notes the claimant is scheduled for surgery due to her left carpal tunnel syndrome on December 21, 2015. The only mention of her right upper extremity in that record is found in the history of present illness portion section and states: “She had a right carpal tunnel release on 10/14/2012, 2/3 years ago. She states her right wrist/hand is doing okay. It hurts on occasion.” That medical record is found beginning at Claimant’s Exhibit 1, Page 1.          The first medical record to discuss any symptoms regarding the claimant’s right elbow appears in a report from Dr. Powell found at Claimant’s Exhibit 1, Page 11, which in part states:

CHIEF COMPLAINT: Bilateral elbow pain.

HISTORY OF PRESENT ILLNESS: Juana returns today for evaluation and treatment of her elbows. She complains of bilateral elbow pain, right > left. She complains of pain over the lateral epicondyle bilaterally. She states that sweeping and mopping bothers it. She states that she is losing strength with heavy lifting.

She has had bilateral carpal tunnel releases and she states that her hand numbness is better bilaterally.

PHYSICAL EXAMINATION: Examination of both elbows reveals tenderness to palpation of the lateral epicondyle and pain with resisted wrist extension.

ASSESSMENT: Bilateral tennis elbow, right > left.

PLAN: She was given a wrist splint for her right wrist. I recommended physical therapy for both of her elbows. I will see her back in the clinic in 6 weeks for follow up.

         The claimant again saw Dr. Powell on July 28, 2016 with a chief complaint of “bilateral tennis elbow, right > left”. At that time, Dr. Powell recommended “an MRI of her right elbow due to catching and locking of her elbow.”          On August 2, 2016, the claimant underwent an MRI of her right elbow. That report was signed by Dr. Joseph Yancey and gave the following impression:

IMPRESSION: Mild thickening and increased signal at the origin of the common extension tendon consistent with tendinosis/lateral epicondylitis.

         On August 4, 2016, the claimant again saw Dr. Powell. During that visit the claimant continued to complain of bilateral elbow difficulties, the right greater than the left. Dr. Powell reviewed the claimant’s MRI and...