BEFORE THE WORKERS' COMPENSATION BOARD
STATE OF OREGON
In the Matter of the Compensation ) WCB Case No. 95-11113
) Claim No. 7228555G
of ) DOI: 02/03/95
) WCD File No. I817969
)
SANDRA ALLISON, Claimant ) ORDER ON REVIEW
Reviewed by Board Members Haynes and Hall.
The SAIF Corporation requests review of Administrative Law
Judge (ALJ) Nichols' order that set aside its denial of
claimant's occupational disease claim for left carpal tunnel
syndrome (CTS). On review, the issue is compensability.
We adopt and affirm the ALJ's order with the following
supplementation.
We begin by briefly summarizing the pertinent facts. In 1981,
claimant experienced a non-work-related accident that severely
cut both tendons and the median nerve of her right hand, which
resulted in median nerve atrophy and numbness. (Ex. 19). For
that reason, even though claimant is right-hand dominant, she
relies more on her left hand, particularly for work that
requires finger dexterity. (Tr. 11, 20).
In about November 1994, claimant, age 38, who worked for six
years as an office specialist performing a variety of clerical
duties, began to notice pain and numbness throughout the left
wrist and fingertips which was worse at the end of her workday
and diminished with rest. (Ex. 10). In January 1995, claimant
sought treatment from Dr. Scherlie, her family doctor, who
treated her with anti-inflammatory medication and a wrist brace.
(Ex. 10). Claimant's condition did not improve, so Dr.
Scherlie referred her to a more aggressive rehabilitation
program, where she was treated by Dr. Nelson. Claimant was
examined for SAIF on one occasion by Dr. Jewell. (Ex. 31).
Claimant's work activities were fast-paced and generally
hand-intensive. They included answering the phone with her left
hand, keyboarding on a typewriter or computer, filing, and other
general office duties. See Tr. generally, pp 12-71.
Relying on Dr. Nelson's opinion that claimant's work activities
were the major contributing cause of her left CTS, the ALJ
concluded that claimant's occupational disease claim was
compensable. SAIF argues on review that Dr. Jewell's opinion is
more persuasive than that of Dr. Nelson, claimant's attending
physician. Specifically, SAIF contends that Dr. Nelson did not
have a complete history of claimant's work activities, that he
was not aware of the limited amount of time claimant spent
keyboarding, and that he failed to explain why claimant
developed CTS in her left hand when she actually did more
keyboarding with her right hand.
Considering the passage of time and claimant's employment
exposures, the determination of the major cause of claimant's
condition is complex and requires expert medical opinion. Uris
v. Compensation Dept., 247 Or 420 (1967); Barnett v. SAIF, 122
Or App 279 (1993). We generally defer to the medical opinion of
an attending physician, absent persuasive reasons to do
otherwise. See Weiland v. SAIF, 64 Or App 810 (1983). In this
case, we find no such reasons.
As noted above, Dr. Nelson, a rehabilitation specialist, began
treating claimant in August 1995 upon referral from Dr.
Scherlie. Dr. Nelson reported that claimant's symptoms had
begun in November 1994, with increasing left wrist and hand pain
with numbness and tingling and nocturnal dysesthesias, generally
worsened by her work involving multiple activities of paperwork,
keyboarding and general clerical work. Dr. Nelson initially
opined that claimant's CTS condition was work-related. (Ex.
19). Subsequent to his review of Dr. Jewell's report, which
included a detailed discussion of claimant's work duties,
including the percentage of time claimant spent word processing,
Dr. Nelson also opined that the major contributing cause of
claimant's condition was her work activities, disagreeing with
Dr. Jewell's opinion that the major contributing cause of
claimant's condition was her lifestyle, age and gender. (Ex.
29). We conclude that Dr. Nelson was aware of all of claimant's
duties, including the amount of time that claimant spent word
processing.
Moreover, during his treatment of claimant, Dr. Nelson noted
the fact that claimant's median nerve on the right had atrophied
significantly to absent, with complete numbness in the right
medial nerve distribution consistent with the prior laceration
of the tendons in her right arm. (Ex. 19). He further noted
that it would be unlikely for claimant to experience symptoms in
the right carpal tunnel, given the injury to the median nerve.
(Id.).
In contrast, although Dr. Jewell noted the injury to claimant's
tendons and median nerve and her median nerve hypesthesia on the
right, he nevertheless opined that if employment were the cause
of claimant's condition, that it would be more likely that
claimant would have developed bilateral or dominant (right) hand
symptoms. (Ex. 31). Moreover, Dr. Jewell's conclusory opinion
that claimant's lifestyle, age and gender were the major
contributing cause of her CTS is not supported by any facts in
the record regarding claimant's lifestyle, aside from her work
activities. In addition, in response to a query by SAIF, Dr.
Jewell opined that claimant's preexisting conditions (which he
earlier identified as degenerative disc disease in the neck)
combined with her employment and that the preexisting conditions
are the major contributing cause of claimant's left carpal
tunnel condition. (Ex. 31-2). Again, he offered no reasoning
in support of his changed opinion on causation. Because Dr.
Jewell's various opinions were conclusory and unexplained, we
give them little weight. Somers v. SAIF, 77 Or App 249 (1986);
Moe v. Ceiling Systems, 44 Or App 429, 433 (1980).
For the same reason, we give Dr. Scherlie's opinions little
weight. Id. Dr. Scherlie initially opined that claimant's
condition was probably work related. (Ex. 19). Dr. Scherlie
nevertheless concurred with Dr. Jewell's September 12, 1995
opinion that claimant's condition was not caused by work. (Ex.
27). Dr. Scherlie offered no reasoning regarding his change of
opinion. Therefore, his changed opinion is not persuasive and
we do not rely on it.
Because we are more persuaded by Dr. Nelson's opinion than
those of Drs. Jewell and Scherlie, we conclude that claimant's
work activities were the major contributing cause of her left
CTS condition. Claimant's claim is compensable.
Claimant's attorney is entitled to an assessed fee for services
on review. ORS 656.382(2). After considering the factors set
forth in OAR 438-015-0010(4) and applying them to this case, we
find that a reasonable fee for claimant's attorney's services on
review is $1,000, payable by SAIF. In reaching this conclusion,
we have particularly considered the time devoted to the case (as
represented by claimant's respondent's brief), the complexity of
the issue, and the value of the interest involved.
ORDER
The ALJ's order dated January 23, 1996 is affirmed. For
services on review, claimant's counsel is awarded a fee of
$1,000, to be paid by SAIF.
Notice to all Parties: This order is final unless, within 30
days after the date of mailing of copies of this order to the
parties, one of the parties appeals to the Court of Appeals at
the Supreme Court Building, Salem, Oregon 97310 for judicial
review as provided by ORS 656.298. Copies of any such appeal
shall be mailed by registered or certified mail to the Board and
all other parties to this review proceeding with a proof of such
service filed with the clerk of the Court of Appeals.
Entered at Salem, Oregon on July 15, 1996
Workers' Compensation Board
Sandra K. Haynes, Board Member
Nelson R. Hall, Board Chair