| IN RE: PEGGY S. ANDERSON | ) | DOCKET NO. 09 11986 |
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| CLAIM NO. Y-698937 | ) | DECISION AND ORDER |
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APPEARANCES:
The claimant, Peggy S. Anderson, filed an appeal with the Board of Industrial Insurance Appeals on February 27, 2009, from an order of the Department of Labor and Industries dated January 2, 2009. In this order, the Department affirmed the October 29, 2008 order, in which it denied the claimants application to reopen her claim. The Department order is REVERSED AND REMANDED.
ISSUE
Did Ms. Andersons left-sided carpal tunnel syndrome objectively worsen between May 11, 2006, and January 2, 2009?
EVIDENTIARY AND PROCEDURAL MATTERS
As provided by RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision. In its Reply to Claimant's Petition for Review, the Department contends that Ms. Anderson's Petition for Review was untimely filed. The deadline for filing the petition was extended to September 27, 2010. In our Order Granting Petition for Review, we stated that the petition was filed on September 29, 2010. That was the date it was received. However, it was mailed on September 27, 2010, and filing is perfected by mailing. RCW 51.52.104. Thus, the claimant filed a timely Petition for Review of the July 30, 2010 Proposed Decision and Order, in which the industrial appeals judge affirmed the January 2, 2009 Department order. All contested issues are addressed in this order. [2]
The Board has reviewed the evidentiary rulings in the record of proceedings. During the deposition of Greg Sanders, M.D., the claimant objected to testimony regarding past narcotics use based on relevance. Sanders Dep. at 27. That objection is sustained and the testimony from page26, line 14, through page 31, line 6, is stricken. We find that no other prejudicial error was committed, and the remaining evidentiary rulings are affirmed.
DECISION
The resolution of this appeal is complicated by the fact that Ms. Anderson has filed multiple claims for carpal tunnel syndrome. According to the parties, a claim for right-sided carpal tunnel syndrome is pending at the Department. The current appeal involves a claim for left-sided carpal tunnel syndrome. In addition, on the same date that the industrial appeals judge issued the Proposed Decision and Order in this appeal, our judge issued a separate Proposed Decision and Order involving a claim for bilateral carpal tunnel syndrome, in Claim No. AJ-18784, DocketNo.0920382.
Pursuant to ER 201, we take notice of the following: Ms. Anderson filed an occupational disease claim for bilateral carpal tunnel syndrome in AJ-18784 (Docket No. 0920382) and an application to reopen Claim No. Y-698937 (Docket No. 09 11986) after her symptoms worsened over a three-day period of employment with Dri-Ease in September 2008, on assignment from Human Resources of Mount Vernon, a temporary staffing company. The Department denied both the new claim and the application to reopen. Ms. Anderson appealed, and the cases were consolidated for hearing. The industrial appeals judge de-consolidated them on his own motion in July 2010, and issued two different Proposed Decisions and Orders. In DocketNo.0920382, involving the new occupational disease claim, he dismissed for failure to present a prima facie case. No Petition for Review was filed, and that order has become final.
Because the appeals were consolidated, the medical witnesses addressed whether Ms.Anderson had a new occupational disease of bilateral carpal tunnel syndrome, and whether her accepted left-sided carpal tunnel syndrome had worsened. They also testified regarding the separate right-sided carpal tunnel syndrome claim. However, the only issue currently before us is whether the left-sided carpal tunnel syndrome accepted under Claim No. Y-698937 worsened between May11, 2006, and January 2, 2009.
The first terminal date closing examination was performed on March 9, 2006. At that time, both the Tinel's signs and Phalen's tests were normal bilaterally at the wrists and the forearms, and Ms. Anderson had a 0percent impairment. The claim was closed with no permanent partial [3]disability on May 11, 2006. Ms. Anderson returned to work in various capacities thereafter and was able to self-limit or modify how she performed tasks whenever her symptoms started to reappear. However, problems began to emerge even before her employment with Dri-Ease from September18, 2008, through September22,2008, which was the focus of her occupational disease claim in Claim No. AJ-18784, Docket No. 0920382. Ms. Anderson worked for a temporary staffing agency, Terra Staffing, from August 28, 2008, through September 2, 2008. By the third day of that employment, she described her symptoms as "horrible." 4/8/10 Tr. at 22. When she complained, she was let go.
She then went to another temporary staffing agency, Human Resources of Mount Vernon, and was assigned to Dri-Ease. After three days of assembly line work there, her pain increased, and she went to the emergency room. On September 30, 2008, she returned to see Greg Sanders,M.D., who had treated her prior to the initial claim closure and had last seen her on September 2, 2004. On October 22, 2008, Ms. Anderson filed an application to reopen her claim, which the Department denied on October 29, 2008.
When Dr. Sanders saw Ms. Anderson on September 30, 2008, and October 23, 2008, she had positive Tinel's signs bilaterally and was tender in both wrists. On December 9, 2008, Dr.Sanders referred her for electrodiagnostic testing, which was performed on April 2, 2009. In the meantime, Ms. Anderson had protested the denial of her application to reopen, and on January 2, 2009, the Department affirmed the October 29, 2008 order.
The electrodiagnostic testing was negative on the left. However, when MarkD. Holmes, M.D., saw Ms. Anderson on June 6, 2009, she had a mildly positive Tinel's sign bilaterally at the wrists and forearms. She also had a positive Phalen's test bilaterally at the wrists and forearms. Nonetheless, Dr.Holmes concluded that Ms.Anderson's left carpal tunnel syndrome had not worsened, primarily because he did not believe the short period of work at Dri-Ease could have aggravated her condition. In addition, based on a comparison of the electrodiagnostic tests performed on April2, 2009, with the testing performed by Dr. Crispen Wilhelm in June and December 2004, and February2005, he believed Ms.Anderson's condition had improved. Dr.Holmes considered electrodiagnostic testing the most reliable, objective tool for assessing carpal tunnel syndrome.
However, the claimant underwent five surgeries before the first terminal datetwo carpal tunnel releases on the right and one on the left, as well as a pronator release on each side. It is not entirely clear when each procedure occurred. The claimant's memory is poor. Dr. Sanders only [4]gave one date, April 2003, for a right carpal tunnel release. Dr. Holmes received the medical records out of chronological order, and he discussed them in the order received. Furthermore, in his review he did not give the dates or specifics for all of the surgeries. The dates he did give do not always match the claimant's estimated dates. We have relied on his recitation for the most part, because it is based on a review of the records. As best we can determine several of the surgeries on both the right and left sides occurred in 2005, after Dr.Wilhelm's June 2004, December 2004, and February 2005 electrodiagnostic testing.
That is consistent with Dr. Holmes' testimony on cross-examination, when he agreed that Dr.Wilhelm's testing was performed prior to the claimant's surgeries. When asked if her condition would have been improved through the surgery, he responded that he assumed the treatment had been helpful. Thus, a comparison of the April 2, 2009 electrodiagnostic testing with that performed in 2004 and early 2005 is not determinative on the question of whether there has been an improvement in the claimant's left carpal tunnel syndrome condition since the first terminal date of May11, 2006, because the claimant underwent surgery after the testing and prior to claim closure.
At the same time, the April 2, 2009 electrodiagnostic testing does not show any worsening of Ms. Anderson's carpal tunnel syndrome on the left. That leaves the Tinel's signs and Phalen's tests. There is no dispute that they were normal as of the first terminal date and became positive thereafter. The question is whether the change in those findings provides objective evidence of worsening.
The claimant's attorney did not ask Dr. Sanders that specific question. He did ask whether there were "findings, objective findings or positive tests" during Dr.Holmes' examination. Sanders Dep. at 16. Dr. Sanders' responded: "Yes. . . . She had tests that were positive, including Tinel's on the left and right, Phalen's in the wrist and the forearms." Sanders Dep. at 16.
The claimant's attorney did not ask Dr. Sanders whether Ms. Anderson's left carpal tunnel syndrome objectively worsened between May 11, 2006, and January 2, 2009. Instead, he asked if what Dr. Sanders saw in September 2008 was a worsening or a new injury. In Dr. Sanders' opinion, it was a worsening, because he did not think a three-day exposure to repetitive work at Dri Ease was sufficient to cause carpal tunnel syndrome on its own. However, he did not explain the basis for his opinion regarding worsening, nor did he specifically say he was relying on a comparison of the Tinel's and Phalen's findings.
In Dr. Holmes' opinion, Tinel's signs and Phalen's tests are not objective. However, he did not doubt Ms. Anderson had bilateral carpal tunnel syndrome and rated her impairment at 5 percent [5]for both upper extremities, based on those findings. Like Dr. Sanders, Dr. Holmes was not specifically asked whether Ms. Andersons accepted left-sided carpal tunnel syndrome objectively worsened between May 11, 2006, and January 2, 2009. He was asked to assume that "on the left, Ms. Anderson's claim closed on May 11th, 2006, and the IME corresponding to that closing date was the IME you reviewed of March 9th, 2008, were you able to find objective signs of worsening?" Holmes Dep. at 26. He answered "no," but his main reason appears to have been that he did not think an aggravation could have happened during three days of work at Dri-Ease. That is not the question before us in this appeal.
Furthermore, Dr. Holmes does not appear to have understood that Ms. Anderson's claim for left-sided carpal tunnel syndrome had been allowed, and that she was trying to reopen that claim. He knew she had an accepted September 29, 2004 right carpal tunnel syndrome claim, and he knew about the claim for bilateral carpal tunnel syndrome that Ms.Anderson filed after she worked for Dri-Ease. He initially related Ms. Anderson's bilateral carpal tunnel syndrome to that employment, under the mistaken impression that the Department had administratively accepted a new occupational disease claim. When the Department corrected him, he changed his opinion. However, when asked if his conclusions would change if he were made aware of "a prior industrial claimwherein the left-sided carpal tunnel syndrome was accepted," he responded: "If it was accepted, if the Department accepted both sides, sure. Yes, I'd have to say that." Holmes Dep. at46.
The closure of the claim on May11, 2006, with no permanent partial disability award and testimony that the claimant now has a 5 percent impairment is not sufficient, in and of itself, to establish aggravation of condition. In re Leona McCleneghan, BIIA Dec., 24,922 (1967); InreClifford M. Takamoto, Dckt. No. 06 19559 (February 4, 2008). "The mere existence of a permanent impairment on the second terminal date does not establish permanent aggravation." Takamoto at 7-8. Ms. Anderson must also prove that her condition worsened between May11, 2006, and January2, 2009, based at least in part on comparative objective findings.
As the industrial appeals judge points out, a worker's subjective complaints of increased pain are not sufficient to show worsening. There must be some objective findings to support the complaints of increased pain and loss of function. In re John Anderson, BIIA Dec., 91 6315 (1992). We believe there are such objective findings here, in the form of the repeated findings of positive Tinel's signs by Dr. Sanders and Dr.Holmes, and the positive Phalen's test by the latter. [6]Dr.Holmes is not the final arbiter of what is considered a sufficiently objective finding. To make that determination, we turn to medical aid rules.
The word "objective" appears frequently in the rules. For example, WAC 296-20-19000 provides: "Washington's Industrial Insurance Act requires that permanent partial disability be established primarily by objective physical or clinical findings establishing a loss of function." WAC296-20-19030 provides: "A worker's subjective complaints or symptoms, such as a report of pain, cannot be objectively validated or measured. . . . When rating a worker's permanent partial disability, reliance is primarily placed on objective physical or clinical findings that are independent of voluntary action by the worker and can be seen, felt or consistently measured by examiners." WAC296-20-220(1)(i) and (j) define objective and subjective as follows:
- (i) Objective physical or clinical findings are those findings on examination which are independent of voluntary action and can be seen, felt, or consistently measured by examiners.
- (j) Subjective complaints or symptoms are those perceived only by the senses and feelings of the person being examined which cannot be independently proved or established.
Dr. Sanders described the Tinel's sign as follows: "That's where you tap on the dorsal wrist, and classically you'll get some tingling in some or all of the three middle fingers of that hand." Sanders Dep. at 17-18. He described the Phalen's test as follows: "It's where you put your you flex both wrists, and then you put the dorsal aspect of the hands together and put pressure on them, and if it's positive, there'll be tingling in some of the digits." Sanders Dep. at 17.
Thus, the Tinel's sign involves a combination of the doctor tapping a certain spot and asking the patient to report symptoms. The clinician must then determine if the nature and location of the reported symptoms correlate with a diagnosis of carpal tunnel syndrome. Likewise, with the Phalen's test, the doctor puts the patient's hands in a particular posture, applies pressure, and asks the patient to report any symptoms and their location. Once again, it is up to the clinician to determine whether the symptoms reported during this maneuver correspond with a diagnosis.
In In re Troy L. Hanford, Dckt. No. 08 17708 (December 7, 2009), we addressed a similar scenario. Hanford involved the question of whether the claimant's left shoulder impingement syndrome had objectively worsened. In analyzing whether positive impingement findings were objective, we noted:
While subjective complaints alone are not sufficient, Dr. Phipps conducted impingement and range of motion testing specifically designed to determine clinical deterioration of the shoulder joint. The claimant's pain complaints and loss of function were corroborated by Dr. Phipps' clinical examination. While it might be [7]possible for Mr. Hanford to manipulate these results, the range of motion testing is so specific to the impingement syndrome that it has an objective component. These findings present a prima facie case for aggravation of the left shoulder based on the holdings in Wilbur v. Department of Labor and Industries, 61 Wn.2d 439 (1963) and In re John F. Anderson, BIIA Dec. 91 6315 (1992).
Hanford, at 6.
We directed the Department to reopen the claim "based on the objective component of the impingement testing." Hanford, at 9.
In the current case, the Tinel's sign and Phalen's test involve more than simply asking the claimant to list her symptoms and complaints, which would be purely subjective under WAC296 20-220(1)(j). They are well-defined clinical tests, relied on by both medical witnesses. If certain specific responses are elicited, the tests can confirm the likely existence of carpal tunnel syndrome. Both Dr. Sanders and Dr. Holmes found positive Tinel's signs. Dr. Holmes found a positive Phalen's test as well. The Department suggested that Ms. Anderson is, by now, familiar with what the expected responses are for confirming carpal tunnel syndrome. Dr. Holmes agreed that her experience with the tests makes them more subjective. However, he continued to believe that Ms.Anderson was suffering from carpal tunnel syndrome on the left and that she had a 5percent impairment, despite the lack of electrodiagnostic confirmation. He said there was "no doubt" the claimant felt something in response to the Tinel's and Phalen's tests. Holmes Dep. at 49. By saying she has a 5 percent impairment based on those tests, he implicitly acknowledged that the tests elicited responses that "can be seen, felt, or consistently measured," as required by WAC296-20-19030.
In summary, as of the first terminal date, Ms. Anderson's Tinel's signs and Phalen's tests were normal bilaterally at the wrists and forearms, and she had a 0percent impairment on the left. She returned to work at various jobs and managed reasonably well, so long as she was able to modify how she performed certain tasks. However, during two bouts of employment in August and September 2008, when she was required to perform repetitive tasks, her symptoms flared. On September 30, 2008, and October23, 2008, Ms. Anderson had positive Tinel's signs bilaterally and was tender in both wrists, according to Dr. Sanders. On June6, 2009, she had a mildly positive Tinel's sign bilaterally at the wrists and forearms, a positive Phalen's test bilaterally at the wrists and forearms, and a 5 percent impairment on the left, according to Dr. Holmes.
The positive Tinel's signs and Phalen's test have both objective and subjective components under the definitions set forth at WAC296-20-220(1)(i) and (j). A doctor performs the tests, which are only considered positive if the doctor finds the patient's responses reliable and if those [8]responses correlate with the specific pattern associated with carpal tunnel syndrome. Ms.Anderson's findings were consistent over several examinations by two different doctors and neither doctor questioned the reliability of her responses. Both felt the test results were consistent with a carpal tunnel syndrome diagnosis.
It is undisputed that the tests were normal as of May 11, 2006. Thereafter, the tests yielded positive results on several occasions. We conclude that the results of those tests are "objective physical or clinical findings," showing that the left-sided carpal tunnel syndrome has worsened, not merely "subjective complaints or symptoms," under the definitions set forth at WAC296 20 220(1)(i) and (j). The January 2, 2009 Department order is therefore reversed, and the matter remanded to the Department to reopen the claim and take further action as appropriate, based on the law and the facts.
FINDINGS OF FACT
- 1. Peggy S. Anderson filed an Application for Benefits with the Department of Labor and Industries on January 29, 2004, in which she alleged an occupational disease to her left wrist, arising naturally and proximately from her employment with Regency Care Center/Arlington.
On September 16, 2004, the Department allowed Ms. Andersons left carpal tunnel syndrome as an occupational condition or disease. The Department did not determine employer liability for the claim, stating that a further order would be issued establishing chargeable employers and the percentage of liability. After a November 2, 2004 protest, the Department affirmed the September 16, 2004 order on March 22, 2005.
On October 19, 2004, the Department determined that the cost of the claim would be charged to the claims experience of Regency Care Center/Arlington at 45 percent liability with the last injurious exposure being February 1, 2003, and that the date of manifestation was January16,2004, for compensation purposes because that was the date the disease required medical treatment. After a November 2, 2004 protest, the Department affirmed the October 19, 2004 order on March22, 2005.
On May 11, 2006, the Department closed the claim with time loss compensation benefits as paid through December 19, 2005, and no award for permanent partial disability.
On October 22, 2008, the Department received an application to reopen Ms. Andersons claim. On October 29, 2008, the Department denied the application to reopen. On December 18, 2008, the claimant protested the October 29, 2008 order. On January2,2009, the Department affirmed the October 29, 2008 order.
On February 27, 2009, the claimant filed a Notice of Appeal with the Board of Industrial Insurance Appeals from the Departments [9]January2,2009 order. On April 3, 2009, the Board granted the appeal under Docket No. 09 11986, and agreed to hear the appeal.
- 2. As of January 16, 2004, Peggy S. Anderson suffered from left-sided carpal tunnel syndrome arising naturally and proximately out of her employment with Regency Care Center/Arlington.
- 3. As of May 11, 2006, Ms. Anderson's left-sided carpal tunnel syndrome was fixed and stable, and had reached maximum medical improvement. Her Tinel's signs and Phalen's tests were normal bilaterally at the wrists and the forearms. She had no objective clinical findings and no permanent impairment.
- 4. On September 30, 2008, and October23, 2008, Ms. Anderson exhibited positive Tinel's signs bilaterally and was tender in both wrists. On June6, 2009, Ms. Anderson had a mildly positive Tinel's sign bilaterally at the wrists and forearms, and a positive Phalen's test bilaterally at the wrists and forearms.
- 5. Between May 11, 2006, and January 2, 2009, Ms. Andersons left-sided carpal tunnel syndrome, which arose naturally and proximately out of her employment with Regency Care Center/Arlington, objectively worsened, based on the changes found in her Tinel's signs and Phalen's test.
CONCLUSIONS OF LAW
- 1. The Board of Industrial Insurance Appeals has jurisdiction over the parties to and the subject matter of this appeal.
- 2. Between May 11, 2006, and January 2, 2009, Ms. Andersons left-sided carpal tunnel syndrome, which arose naturally and proximately out of her employment with Regency Care Center/Arlington, became aggravated within the meaning of RCW 51.32.160.
- 3. The January 2, 2009 Department order is incorrect and is reversed. The matter is remanded to the Department to reopen the claim and take further action as appropriate, based on the law and the facts.
DATED: November 16, 2010.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
DAVID E. THREEDY Chairperson
/s/
FRANK E. FENNERTY, JR. Member