MWCC NO. 94 16303-F-2828
BETTY LEVY CLAIMANT
VS
MISSISSIPPI UNIFORMS, DIVISION
EMPLOYER
SUPERIOR SURGICAL MFG. COMPANY, INC.
AND
SUPERIOR UNIFORM GROUP
CARRIER
REPRESENTING CLAIMANT:
Honorable Frank H. Shaw,Jr., Attorney at Law, Kosciusko, Mississippi
REPRESENTING DEFENDANT:
Honorable Diane V. Pradat, Attorney at Law, Jackson, Mississippi
FULL COMMISSION ORDER
The Commission heard the above styled cause on August 6, 2001 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the Claimant's "Appeal to Full Commission".
Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of the Administrative Judge" dated April 6, 2001.
SO ORDERED, this the 10th day of August, 2001
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BEN BARRETT SMITH
BARNEY SCHOBY
LYDIA QUARLES
COMMISSIONERS
ATTEST:
Jo Ann McDonald, Secretary
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
MWCC NO. 94 16303-F-2828
BETTY LEVY CLAIMANT
VS
MISSISSIPPI UNIFORMS, DIVISION
EMPLOYER
SUPERIOR SURGICAL MFG. COMPANY, INC.
AND
SUPERIOR UNIFORM GROUP
CARRIER
REPRESENTING THE CLAIMANT:
Frank H. Shaw, Jr., Esquire, 133 East Jefferson Street; Kosciusko,
Mississippi 39090
REPRESENTING THE DEFENDANT:
Diane V. Pradat, Esquire, P. O. Box 13429; Jackson, Mississippi
39296-3429
ORDER OF THE ADMINISTRATIVE JUDGE
Claimant alleges that she sustained work-connected injuries to both upper extremities in the course of her employment as a sewing machine operator for Mississippi Uniforms on or about April 26, 1994. The employer denied that claimant's injuiy was compensable. The primary issues are the occurrence of compensable injuries to claimant's upper extremities, the extent of disability attributable to her alleged injuries, and the employer's liability for medical benefits.
STIPULATION
1. Claimant's average weekly wage on April 26, 1994 was $150.00.
ISSUES
The parties identified four issues in this cause:
Claimant is a 46-year-old resident of Lexington, Mississippi. She has a ninth grade education, and she can read and write. She attended adult education courses at night, and she sat for the GED but she did not receive a GED.
Claimant has work experience as a school aide through the Neighborhood Youth Corp. In this capacity, she worked as a janitor and as a teacher's aide. She also performed office work at the Corp. for two years. She has also worked as a sewing machine operator for three different employers for approximately three years, a janitor for Jackson Academy for one year, a housekeeper for two years, and a deboner in a poultry processing plant for three years. She later worked fileting fish on the assembly line of a catfish processing plant for one year.
In September 1989, she was hired by Mississippi Uniforms as a sewing machine operator. She began to experience pain in her nondominant left arm in the spring of 1994 while bundling, tying, lifting and carrying bundles of clothes. Each bundle of garments contained bout 72 gowns and weighed 50-75 pounds, and she carried one in each hand. Although the bundles were sometimes brought to her, she testified that she carried and sewed 12 to 13 bundles a day. She estimated that she sewed more than 800 pieces a day. She testified that she had never experienced arm pain before the spring of 1994 while working for Mississippi Uniforms or any other employer.
Claimant testified that she reported left wrist pain to her supervisor, Donna Riley, in April 1994. She attributed the knot on her left arm and her left arm pain to "tying the gowns together." The employer completed an accident report showing an April 27, 1994 date of injury (accident report marked Exhibit 6). On Friday, April 28 or 29, 1994, the employer transported her to the company doctor, Dr. Robert Gilliland in Kosciusko, for treatment of her arm pain. Dr. Gilliland concluded that her cyst was not work-connected, and he released her to return to work.
Claimant returned to work the following Monday. She continued to perform the duties of her employment until May 31, 1993, when she was fired for low productivity. She testified that the plant manager, Tom Cox, had called her into his officei'every other day" for some time before May 31, 1994 regarding her low productivity. Her personnel records marked Exhibit No. 6 show she was reprimanded for low production on December 8, 1989, January 24, 1990, July 20, 1990, October 24, 1990, January 3, 1991, August 12, 1991, January 30, 1992, October20, 1992, January 24, 1994, April 24, 1994, and May 31, 1994.
On the Form dated January 24, 1994, claimant was warned to begin making 90% of production that day "or warnings will start. Once you have received your third, you will be terminated." Claimant signed the form as required by company policy. On the Form dated April 26, 1994, Tom Cox wrote that time studies had shown claimant could work at 100% production, that she worked at 100% production during a time study on February 26, 1997, and that he would "give you all of the help you need but you must be making production by the end of next week, 5/6." Claimant signed the Form with the comment that "Tom said if I do not sign I will not have a job." When claimant received the third warning for low productivity on May 31, 1994, she refused to sign the Form. A Separation Report dated May 31, 1994 states that claimant was discharged that day for "3 warnings - attached." Claimant's personnel records also contain a Notice of Nonmonetaiy Decision from the Mississippi Employment Security Commission dated July 3, 1994 denying claimant unemployment benefits, as its investigation indicated that claimant was discharged for refusing to sign a written warning in violation of company policy.
Claimant attributed her pre-injury production problems solely to a lack of work and not to any physical impairment. She also testified that she did not know why she had less work than other employees. She specifically testified that the employer"picked on and harassed [her] all the time" before April 1994, and that Tom Cox "tortured me." She also testified that she increased her work efforts in response to his demands that she make production, that she began to make production accordingly, and that her increased work activities may have caused her injury.
Claimant also testified that her production progressively decreased after April 1994 due to her injury. She testified that she had pain and a burning sensation at the site of her left wrist knot before April 27, 1994, that the knot did not appear until April 27, 1994, and that she told her supervisor, Donna Riley, but not Tom Cox, that she had left arm pain during this time. She could not recall whether she told Cox that she had left wrist pain when she received the written warning on April 26, 1994, but she did recall telling him that she had left arm pain when he fired her.
Claimant testified that she has not been employed in any capacity since May 31, 1994 because no one will hire me with this problem." She applied for unemployment benefits but her claim was denied. She also sought medical treatment on her own from her family physician, Dr. John Downer, and from Dr. Harry Bartee. Dr. Bartee referred her to orthopedic surgeon Dr. Alan Freeland. She was also treated by orthopedic surgeon Dr. McWillie Robinson at the Bone and Joint Clinic in August 1994. Although the knot on her left arm subsided somewhat for a while, it reappeared and enlarged. She also admitted that, as of her January 1995 deposition, none of her medical providers had taken her off work.
Claimant later began experiencing right arm symptoms. She attributed these symptoms to overuse of her right hand, as she used her right hand exclusively during the time that orthopedic surgeon Dr. McWillie Robinson administered steroid injections to her left arm. She admitted that the medical records do not reference a complaint of right arm pain until September 1995 when she saw her family practitioner, Dr. Downer. Dr. Downer referred her to the University Orthopedic Clinic at University Medical Center. Orthopedic surgeon Dr. William Geissler of that clinic told her that her right arm was worse than her left arm. Orthopedic surgeon Dr. Alan Freeland of that clinic performed surgery on her right arm in October 1997.
At the evidentiary hearin& claimant testified that "it [surgery] hasn't done too much good." She specifically testified that her right arm is still "half numb all the time," that the knots on her left wrist still throb like a toothache, and that. she cannot a grip a skillet with her left hand. She also testified that the joints in both her arms hurt up to her neck, that it is difficult to say which arm hurts worse, and that she still takes Neurontin three times and day and Ibuprofen as needed for pain. She testified that Dr. Freeland has not released her or told her that she can return to work.
Claimant testified that she had received Social Security Disability benefits since late 1996, that she had looked for work on five days in June 1996 (job search list marked Exhibit 3), and that she was still being treated by the orthopedic clinic of the University Medical Center. Claimant also testified that although she had looked for work since June 30, 1996, she had not communicated these work attempts to the employer/carrier in this cause. When asked if she reported not only carpal tunnel syndrome but also swelling and pain in both feet on two employment applications that she submitted in June 1996, claimant testified that she had athletes' foot during this time but that she could not recall other foot problems.1 Claimant also testified that she had always used her hands in her work, and that she could no longer work because of her hand and arm condition.
Tom Cox testified that, as plant manager for the employer, he handles all workers' compensation claims. He also testified that claimant was employed as a bar tacker. In this capacity she operated a sewing machine using foot pedals. Although she may have occasionally lifted a bundle of clothing, service employees were responsible for placing bundles on the table and moving them at the seamstresses' request. He testified that each of the bundles contained up to 48 pieces and weighed 35-40 pounds maximum.
Cox also testified that he had counseled claimant five or six times regarding production and once or twice regarding absenteeism before the date of injury.2 During these counseling sessions, claimant complained that she did not make production due to lack of work. However Cox testified that an employee who needs work may ask a service person for another bundle. If there is no work available or there are machine delays at that time, the employees may clock out. When an employee is clocked out, she still earns minimum wage but her production is not computed for this period.
Cox testified that he first learned that claimant was complaining of left wrist pain when an accident report was completed on April 28, 1994. One of the employees then took claimant to the local medical clinic. Cox also testified that if this or any other doctor had ever restricted her to light duty, the employer could have accommodated these restrictions by allowing her to file, make labels, or perform other light duty. However, the only excuse slips the employer ever received were those from Dr. Downer in May 1994 which stated that claimant could perform regular duty. Claimant therefore resumed the same job and wage level.
Cox also testified that claimant had received several written warnings in 1994. On January 24, 1994, he counseled~ her regarding the need to make 900/o of 100% production. She received a second written warning on April 26, 1994 for failure to make sufficient improvement. Claimant did not complain of right or left wrist pain at that time. She did state on both occasions that she did not make production due to lack ofwork. On May 31, 1994, claimant was again reprimanded for making 62% production for the week. She was required to take three days off as a disciplinary action with the understanding that further infractions could result in termination or probation.
Cox also testified that time studies that he conducted to determine whether claimant could make production on each of the above dates showed that she was capable of making at least 100% production.3On January 24, 1994, her production was over 100%, and on February 26, 1994, her production was 100%. A time study conducted on April 26, 1994, the date of the second warning, showed that she was at 107% production. The time study that he performed on claimant on May 31, 1994 showed that she worked through one bundle in 21.7 minutes. Her production level that day was 137%.
Cox testified that claimant refused to sign the May 31, 1994 Employee Counseling Form, so he fired her. He also testified that claimant was denied unemployment benefits because she refused to sign the warning. He further testified that, if she had signed the warning form, she would have been off work for three days with the understanding that she would have been required to make production upon returning to work. He denied that he terminated her and then asked her to sign the form. He also denied that she complained of wrist pain or other physical problems on May 31, 1994. Cox testified that although the May 31, 1994 Separation Report which he signed states that claimant was discharged because she had received three written warnings, he fired her because she would not sign the warning form. He testified that the January 24, 1994 warning form states that the employee will be fired if she receives three warnings, that employees are generally fired after the third warning unless they have a physical or mental problem that mitigates the application of this rule, but that claimant's production was sometimes less than 62% before April 1994 and she was not terminated.4
Ernestine Mitchell. was called in rebuttal by the claimant to testify that she worked for the employer as a sewing machine operator and bar tacker in the spring of 1994. She left the employer in 1995. Mitchell testified that, between January and May 1994, she observed that some bar tackers frequently picked up their own bundles and that some bar tackers did not pick up any bundles. The employer had personnel to handle the bundles, but these personnel stopped supplying the workers which affected production. Mitchell also testified that an employee was not allowed to clock out on a demand: a supervisor had to grant the request of any employee to clock out so that her production level would not be adversely affected by down time. Mitchell further testified that she did not know the weight of the heaviest bundles, but that she estimated that they weighed 60 pounds.
The records of faniily practitioner Dr. Robert N. Gilliland show he saw claimant once on April 29, 1994. He noted that she was referred for evaluation of an injury, and that "she was told yesterday or the day before that they would be terminating her and she came up with an injury yesterday." He stated that "her history is that she was tying some bundles and pushing them around and noticed a knot on her left wrist. ... Some motion and movement hurts it a little. She says it just came right up there when she was tying the bundles two days ago. She does not have any particular loss of use of hand. Does not have any paresthesias or carpal tunnel symptoms."
Dr. Gilliland diagnosed a ganglion cyst over the radial side of claimant's wrist on the volar surface. He told claimant that the cyst was not caused by tying bundles, that she could have it removed although there was a 20-30% chance that it would recur, and that she could return to work. He rendered no treatment. He also stated that he "doubted seriously if it just came up there day before yesterday either." He further stated that he told claimant that
Family practitioner Dr. John Downer testified that he had treated claimant for general ailments since 1974, but that he first saw her for wrist complaints on May 12, 1994. He diagnosed a repetitive wrist injury causing a ganglion cyst on the left wrist. He next saw her on May 26, 1994, at which time he referred her to Dr. Michael Braden for surgical evaluation of the cyst. On May 12 and May 26, he allowed claimant to return to work. When Dr. Downer next saw claimant on June 26, 1995, she again presented with a ganglion on her left wrist. This time, he referred her to orthopedic surgeon Dr. Alan Freeland. He treated claimant again for the cyst on July 14, 1995 and September 14, 1995. As of September 14, 1995, claimant had not seen Dr. Freeland. Dr. Downer prescribed a nonsteroidal arthritis type medication for symptomatic relief
Dr. Downer testified that claimant did not complain of pain on the right side until September 1995 and again on April 22, 1996. He testified that he had no history that overuse of the right arm due to an impaired left arm caused her left arm problems, but that such a scenario was common. Dr. Downer testified that claimant had reached maximum medical improvement from the impairment to her arms by April 22, 1996, unless the specialists to whom he referred her performed surgery. Dr. Downer did not have any records from Dr. Freeland or any other provider regarding claimant's treatment after April 22, 1996. He testified that claimant should have refrained from pushing and pulling between May 12, 1994, the date he first treated her, and April 22, 1996, the date that she reached maximum medical improvement.
After the April 22, 1996 office visit, claimant returned to the clinic on until May 16, 1997 and June 2000 for unrelated conditions. She did not mention her arms during either the May 1997 or June 2000 office visits, such that he last treated her for her arms on April 22, 1996. Dr. Downer concluded that, based on the history that claimant related to him, she had a repetitive injury to her wrist. He also concluded that a history of repetitive work activities in a garment factory was compatible and consistent with such an injury, and that repetitive motion was "totally contraindicated" in the presence of a symptomatic ganglion cyst, as cysts can occur from any type activity but they usually become symptomatic due to repetitive extension/flexion injury. He further concluded that although claimant's injury was attributable to a repetitive injury, he could not testify that the repetitive injury occurred at work.
On cross-examination, Dr. Downer noted that althoi.igh claimant had also complained of problems with her left wrist on August 22, 1986, she was hallucinating at the time and he therefore did not include this complaint when he testified on direct examination that she had no complaints of wrist pain before May 12, 1994. He also testified that he did not know whether claimant was employed when he first saw on May 12, 1994, and that he had no history of or reference to her employment until September 1995. He deferred to Dr. Freeland regarding causation and the date of maximum medical improvement. He testified that he could not quantify the extent of claimant's impairment and thereby assess her work capacity absent an EMG, which was one of the reasons that he referred her to Dr. Freeland. He did not recall ever taking claimant off work.
The records of University Orthopaedic Associates show that Dr. William B. Geissler saw claimant on July 31, 1995 for complaints of bilateral hand numbness to the thumb, index and long finger. She related that it particularly bothered her at night and woke her up. She related dropping things and feeling clumsy. Upon examination, she had a positive Tinel's to the thumb and index fingers on the left and to the index and long on the right. Her Phalen's was positive to about 20 seconds bilaterally. She complained of multiple small nodules in the forearm which Dr. Geissler thought represented "just flexor tendon synovitis." Radiographs of the forearm showed no abnormalities. Dr. Geissler diagnosed bilateral carpal tunnel syndrome and ordered EMG /nerve conduction studies.
When Dr. Geissler next and last saw claimant on August 9, 1995, she was told that the EMG's were positive for right carpal tunnel syndrome. The EMG for the left side was normal, although she had more pain on the left side. Upon exam, she had bilateral Tinel's and Phalen's. Dr. Geissler offered to release the right extremity, but he told her that he would need more objective evidence before he could release the left considering her normal EMG on the left. He did offer to inject the left upper extremity to see if she received any symptomatic response. If she received relief from the injection, he would have a diagnostic test to confirm a carpal tunnel syndrome and he could then release the left. Claimant said she wanted to consider this option and would let them know if she wanted to proceed.
Orthopedic surgeon Dr Alan Freeland testified by deposition that he saw claimant on one occasion: October 31, 1997 when he performed a right carpal tunnel release. Because there was no history of a work-related injury, claimant was treated in the free clinic as opposed to the private clinic where patients with insurance are generally treated. He specifically testified that his first knowledge that claimant's injury may be work-connected was the notice ofdeposition. Dr.Freeland testified that claimant had right carpal tunnel syndrome and right cervical radiculopathy at C7, both of which were confirmed by an EMG. Although claimant also complained of left hand pain to Dr. Geissler on July 31, 1995 and August 9, 1995, she had no objective evidence of any structural injury or abnormality on the left or any radiographic evidence of carpal tunnel syndrome on that side. The August 3, 1995 EMG specifically found that claimant's left median nerve responses were normal. He also testified that claimant may have some fibromyalgia, and that she also had hypertension and obesity. She was referred to the neurosurgery clinic for her cervical problems.
Dr. Freeland testified that the usual and customary time for recuperation after surgery is twelve weeks, that claimant was referred to the pain management center at the end of twelve weeks because she continued to complain of pain, but that she probably reached maximum medical improvement at the end of the twelve-week period. Although he did not rate her because he did not know that she was alleging an injury on the job, he testified that the customary 5% permanent impairment rating would have applied in her case. He testified that claimant's UMC records did not indicate any reason to impose restrictions on either her right or left hand, but that he would have ordered a functional capacities test had he known that claimant was alleging an injury on the job. He testified that he did not see claimant before surgery, but that he generally took surgery patients off work from the date of surgery to the date of maximum medical improvement. He testified that claimant's obesity, hypertension, and C7 radiculopathy would also affect her level of function.
Dr. Freeland testified that repetitive work activities can cause or combine with a preexisting condition to produce carpal tunnel syndrome. He also testified that if claimant told the employer that she had injured her hand as the result of repetitive work activities, such a report would be compatible with carpal tunnel syndrome. He further testified that hypertension and obesity "are both known factors that can cause or contribute to carpal tunnel, specifically." He also testified that "if there was a clear contributory established situation at work," claimant's condition was likely a combination of her preexisting condition and her work activities for the employer.
FINDINGS OF FACT
1. Claimant did .not sustain an injury to her left upper extremity in the form of a ganglion cyst on April 27, 1994 as the term "injury" is defined in Section 71-3-3(b). Claimant testified that she developed left hand pain due to bundling, typing, lifting and carrying bundles at work in April 1994. Although the employer representative testified that other personnel were responsible for handling the tied bundles, claimant testified that such personnel were not always available. Her testimony was corroborated by former employee, Ernestine Mitchell.
Claimant's testimony that she was under significant pressure to make production or lose her job is also uncontradicted. Moreover, it is supported by the testimony of the plant manager and the numerous written warnings that she received regarding low productivity. The Employee Counseling Form dated January 24, 1994, claimant's ninth written warning regarding productivity, specifically stated that she would be required to make 90% of production "or warnings will start. Once you have received your third, you will be terminated." On April 26, 1994, she received her tenth written warning regarding low productivity.
Claimant testified that the next day, April 27, 1994, a knot appeared on her left wrist in the course of her employment. She attributed the knot to her work activities, in particular, to tying bundles. Her testimony regarding the occurrence of an injury is uncontradicted, although the injury was unwitnessed. Her testimony regarding occurrence is also supported by the accident report form completed by her supervisor on April 28, 1994 and by the medical histories that she related to Dr. Gilliland, the company doctor, on April 29, 1994 and to orthopedic surgeon Dr. McWillie Robinson on August 12, 1994.
However, even if claimant proves that she has an impairment, she must still prove that the injury arose out of her employment by establishing that her work activities for the employer caused or substantially contributed to the medical impairment. This proof is especially critical where the medical evidence establishes that ganglion cysts may result from several causes, many of which are not work-related. The company doctor, Dr. Gilliland, unequivocally found on April 29, 1994, that the cyst was not related to claimant's work activities for the employer. Dr. Robinson's August 12, 1994 report does not address whether claimant's employment in any way caused or contributed to the formation of her ganglion cyst.
Although claimant sought treatment for the cyst from her family doctor, Dr. John Downer, on May 12, and May 26, 1994 —just two weeks after she had reported the cyst as a work-connected injury to her employer — she did not tell Dr. Downer that she had been injured at work or that she was even employed. In fact, Dr. Downer testified that he had no history of or reference to her employment until September 14, 1995. For this reason, he concluded that he could not relate claimant's cyst to her work activities, although he testified that her cyst was attributable to repetitive motion and that its occurrence was consistent with garment factory work.
Also, the record is not clear that the work activities to which claimant attributed her injury were repetitive. Claimant attributed the pain in her nondominant left arm to bundling, tying, lifting and carrying bundles of clothes. She testified that she carried 12 to 13 bundles a day. She also testified that she told her supervisor that the knot was caused by"tying the gowns together." The accident report completed on April 28, 1997 states that claimant related her injury to tying and picking up bundles.
As Dr. Downer noted, garment factory work is often very repetitive, and claimant repetitively handled and sewed hundreds of garments a day. However she related her pain to tying and carrying 12 or 13 bundles as opposed to handling or sewing the individual pieces comprising the bundles. Moreover, claimant's testimony that she bundled, tied, lifted and carried bundles is contradicted by the plant manager's testimony that other personnel were available to lift and carry the bundles. The plant manager's testimony is corroborated by the accident report prepared by claimant's supervisor which states that picking up bundles was not part of claimant's job. Also, although one of claimant's former co-employees testified that some bar tackers sometimes carried their own bundles, she did not testify that claimant was among this group.
It is also significant to note that claimant allegedly sustained the injury the day after she received her tenth reprimand for low productivity, and, more importantly, that she did not complain of any problems with her left upper extremity at that time of this reprimand although she testified that she was experiencing pain and a burning sensation in her left arm at that time. Rather, she attributed her low productivity to lack of work. Although claimant testified that she complained of left arm pain when she was terminated on May 31, 1994, there are no records or reports of her complaints to the employer between April 28, 1993 and the date of her termination. Also, the plant manager specifically testified that claimant did not complain of pain or a loss of productivity due to pain when he terminated her on May 31, 1994.
This Administrative Judge therefore concludes that a preponderance of the evidence indicates that claimant did not sustain a work-connected injury to her left upper extremity in the form of a ganglion cyst on April 27, 1994, and that her claim for benefits arising out of this alleged injury should be denied. In so holding, this Administrative Judge also notes that even if claimant had proven the occurrence of an injury, there is no medical evidence to support a finding that she was temporarily totally disabled for more than five days or that she is now permanently disabled as a result of the cyst on her left wrist.
2. Claimant did~not sustain an injury to her right or left upper extremities in the form of carpal tunnel syndrome on or about April 27, 1994 as the term "injury" is defined in Section 71-3-3(b). Claimant did not complain about her right upper extremity or about any condition other than the ganglion cyst on her left wrist until July 31, 1995 when she was treated by Dr. Geissler for bilateral hand numbness. Dr. Geissler diagnosed her condition as bilateral carpal tunnel syndrome although he was able to confirm this condition only on the less symptomatic right side. His records do not contain any reference to claimant's employment or address the etiology of claimant's symptoms to either upper extremity.
Dr. Downer treated claimant for bilateral upper extremity pain on September 14, 1995 and April 22, 1996. Likewise, his records do not contain any reference to claimant's work activities generally or to the occurrence of a work-connected injury specifically. Although he testified that overuse of the unimpaired extremity due to the impairment of the injured extremity is common, he stated that such a hypothesis in this case would be pure speculation.
Dr. Freeland did not treat or examine claimant until he performed a carpal tunnel release of her right upper extremity on October 27, 1997. Dr. Freeland testified that claimant also had obesity and hypertension, that these conditions are known factors that cause or contribute to carpal tunnel syndrome, and that claimant's carpal tunnel was likely a combination of her preexisting condition and her work activities "if there was a clear contributory established situation at work."
As noted above, claimant did not complain of right upper extremity symptoms or of left upper extremity symptoms, other than her ganglion cyst, until she saw Dr. Geissler on July 31, 1995 — thirteen months after she was fired by the employer and was last employed by any employer in any capacity.
This Administrative Judge therefore concludes that a preponderance of the evidence indicates that claimant did not did not sustain an injury to her right or left upper extremities in the form of carpal tunnel syndrome on or about April 27, 1994, and that her claim for these benefits should be denied. In so holding, this Administrative Judge also notes that, even if claimant had established a work-connected permanent impairment to her upper extremities, the proof does not establish that she has sustained an industrialloss of use in excess of the 5% medical impairment rating to the right upper extremity assessed by Dr. Freeland.
IT IS THEREFORE ORDERED AND ADJUDGED that claimant's claims for worker's compensation benefits arising out of the injuries to both her upper extremities on or about April 27, 1994 are hereby denied and dismissed.
SO ORDERED this the 6th day of April, 2001.
DENISE TURNER LOTT
ADMINISTRATIVE JUDGE
ATTEST:
Jo Ann McDonald, Commission Secretary
1 Exhibit 9 are two applications for work, one dated June 26, 1996 and another dated June 27, 1996. In the top margins of both applications' front pages, claimant handwrote the following statement: "I have carpal tunnel syndrome. Hands and feet hurt and swell when I use them."
2 Employee Counseling Forms marked Exhibit 6 show claimant was counseled eleven times for low productivity and twice for absenteeism over the course of her employment.
3 Cox testified that he performs time studies of the employees to determine their production levels. The studies are generally briet and employees are aware that they are being conducted.
4 As noted above, the May 31, 1994 warning was claimant's eleventh written warning for low productivity.