Serrano v. Westrim, Inc.

387 S.W.3d 292, 2011 Ark. App. 771, 2011 WL 6189462, 2011 Ark. App. LEXIS 826
CourtCourt of Appeals of Arkansas
DecidedDecember 14, 2011
DocketNo. CA 11-678
StatusPublished
Cited by10 cases

This text of 387 S.W.3d 292 (Serrano v. Westrim, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Serrano v. Westrim, Inc., 387 S.W.3d 292, 2011 Ark. App. 771, 2011 WL 6189462, 2011 Ark. App. LEXIS 826 (Ark. Ct. App. 2011).

Opinion

LARRY D. VAUGHT, Chief Judge.

| Appellant Maria Serrano appeals from the Arkansas Workers’ Compensation Commission opinion finding that she did not sustain a compensable carpal-tunnel-syndrome (CTS) injury to her right hand. We reverse and remand for further findings.

Serrano, now fifty-three years old, started her first job outside the home in 2002 when she began working for appellee Wes-trim, Inc. (Westrim), a production and distribution company of paper products for scrapbooking and crafting. Serrano worked in various departments at Wes-trim,1 all of which involved hand-intensive labor. She worked eight-hour days, stopping for two fifteen-minute breaks and one thirty-minute lunch. In November 2007, Serrano was transferred to the shipping department, which was less hand-intensive. She worked in this department until she was laid off in May 2008 due to the company’s closure. She has not worked since that time.

Serrano started having problems with her right hand and fingers in February 2007. She reported her problems to human-resource administrator Amber Pate, who referred Serrano for treatment at the Northwest Family Care Clinic. On February 21, 2007, Serrano was seen by Dr. Robert Wilson. At that visit, Serrano complained that her right index and middle fingers were “locking up” and that she had pain in the palm of her hand. She was diagnosed with tendonitis in the two fingers. Her condition was accepted as com-pensable, and appellee Arch Insurance Company (Arch Insurance) paid related workers’ compensation benefits.

At her follow-up appointment at the Northwest Family Care Clinic, Serrano was seen by Dr. William Kendrick, who diagnosed trigger-finger syndrome and referred Serrano to orthopedic surgeon Dr. Peter Tang. Dr. Tang also diagnosed her with trigger-finger syndrome. He administered cortisone injections and restricted Serrano’s work duties. When this conservative treatment failed to provide relief, on June 13, 2007, he performed trigger-release surgery on Serrano’s right index and middle fingers. In July 2007, the triggering of the index and middle fingers was improved, but Serrano still had complaints of swelling, stiffness, and scar pain in her right hand. At that time, Serrano was returned to one-handed work, which she did. On August 1, 2007, while still restricted to one-handed work, Dr. Tang wrote that Serrano’s fingers did not lock and that her swelling and pain were “slowly getting better now.” Three weeks later, on August 21, 2007, Serrano returned to Dr. Tang and reported pain and swelling but no numbness or tingling. He modified her restricted work duty to include two-handed work for two hours, twice a day, which Serrano did.

Serrano’s next medical appointment was with Dr. C. Noel Henley2 on October 17, 2007. At this visit, Serrano complained of pain, numbness, and tingling in both hands and all fingers. According to Dr. Henley’s report, Serrano was still on modified restricted duty, but she was having to use both of her hands at work beyond the work restriction. Dr. Henley offered Serrano a steroid injection. On November 14, 2007, Serrano returned to Dr. Henley with reports of improvement from the steroid injection and, because of her November 2007 job change to the shipping department, Dr. Henley returned Serrano to work without restrictions, which she did.

On January 15, 2008, Serrano returned to Dr. Henley with complaints of pain and tingling in her right hand. Dr. Henley’s report stated that he had no surgery options for Serrano and did not recommend further injections. He opined that she had reached maximum medical improvement for the original trigger-finger-syndrome injuries, that she needed a functional capacity evaluation, and that she could continue full-duty work.

Serrano sought treatment on her own from Dr. James Kelly in May 2008. She reported complaints of pain in her third and fourth fingers of her right hand along with pain and swelling in that hand. Dr. Kelly clinically diagnosed her with right CTS. He ordered EMG/NCV testing, which confirmed his diagnosis. On July 18, 2008, Dr. Kelly recommended that Serrano have right CTS release surgery and a fourth-finger trigger-release surgery.

On July 28, 2008, a hearing was held before an administrative law judge (ALJ) to determine whether Serrano suffered any compensable injuries to her right hand (other than the trigger-finger-syndrome injuries suffered to the right index and middle fingers) and whether she was entitled to medical treatment for such injuries. At that time, the only respondents were Westrim and Arch Insurance, which was on the risk until December 31, 2007. The ALJ issued an opinion in favor of Serrano, finding that she sustained a compensable CTS injury to her right hand.

Westrim and Arch Insurance appealed the ALJ’s opinion. On June 29, 2009, the Commission vacated the ALJ’s opinion and remanded the claim based on evidence at the hearing that a new carrier had come on the risk on January 1, 2008. The Commission found that because the new carrier, appellee Travelers Insurance Company (Travelers), may be responsible for Serrano’s alleged compensable injuries, Travelers was a necessary party and additional proceedings and adjudication were required.

On remand, the parties stipulated that Arch Insurance was the workers’ compensation carrier for Westrim from January 1, 2007 to December 31, 2007, and that Travelers was the carrier for Westrim beginning January 1, 2008. Serrano claimed that during her employment with Westrim she suffered a compensable CTS injury to her right hand, and she sought medical treatment for same. She testified that she had pain and swelling in her right hand after the June 2007 surgery. She further testified that she continued to have pain and swelling in her right hand in November 2007, after she was transferred to the shipping department.

On August 4, 2010, the ALJ issued a second opinion finding that Serrano established a compensable right CTS injury. The ALJ also found that Serrano established that her injury was causally related to her employment with Westrim. In reaching this finding, the ALJ stated that Serrano had no difficulties with her right hand prior to her employment with Wes-trim; that her first job was at Westrim; that for the entire period of Serrano’s initial employment with Westrim in 2002 until November 2007, her employment duties involved hand-intensive activities, performed continuously in a rapid, repetitive manner; that she first experienced right-hand |fisymptoms in February 2007, she reported those problems to her employer at that time, and she was treated and diagnosed with trigger-finger syndrome; that her compensable index- and middle-finger injuries “could have easily masked the first appearance of the symptoms from the carpal[-]tunnel syndrome”; that she continued to complain of pain, swelling, numbness, and tingling (all symptoms of CTS) following surgery for her compensable finger injuries and following the November 2007 department change; that Dr. Henley’s October 17, 2007 report noted that Serrano complained of numbness and tingling in the right hand and reported that she was having to use both hands at work despite being on restricted work duty; and that Dr. Henley’s later reports opining that Serrano was at maximum medical improvement were addressing the trigger-finger injuries and not her new complaints. The ALJ further found that

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Bluebook (online)
387 S.W.3d 292, 2011 Ark. App. 771, 2011 WL 6189462, 2011 Ark. App. LEXIS 826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/serrano-v-westrim-inc-arkctapp-2011.