dissenting. I joined in the original decision of this court to reverse the Commission’s denial of benefits to the appellant, and I respectfuEy dissent from the majority’s decision to now grant appeEee’s petition for rehearing and to affirm the Commission’s decision.
First, I believe that the two cases handed down by our supreme court on June 8, 2000, Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000), and July 7, 2000, Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000), are distinguishable and, therefore, are not authority for the case at bar.
In Gaylord, a workers’ compensation claimant was seeking benefits for an injury to his back aUeged to have occurred when he was struck in the left side by a scanner whüe he was clearing away paper from a broken paper machine. In its opinion, the supreme court noted that Frances’s doctor, in a letter report relating to causation, stated that “the mechanism of the injury that [Frances] describes could produce a lumbar disc injury. The history given that he initiaEy sustained back pain and then four weeks later had recurrent back and leg pain could be consistent with an injury to the disc initiaEy....” The supreme court held that since the doctor opined only that Frances’s work-related accident was the kind of event that “could” cause his resulting back condition, the doctor’s opinion was not stated within a reasonable degree of medical certainty as required by Ark. Code Ann. § 11-9-102(16) (B)(Supp. 1999).
In Cmdup, a claimant sought benefits for carpal tunnel injury in his right wrist, aEeged to have been caused by his rapid-and-repetitive activities in packing cookware into boxes on an assembly Ene. A letter report from the Dr. Michael Moore stated:
I had a long discussion with Mr. Crudup regarding his medical condition as it related to work. He reports that he performs work which requires repetitive lifting and gripping. I cannot definitively state that the work he performs at Regal Ware is a primary cause of carpal tunnel syndrome, however, if Mr. Crudup does perform repetitive work, it is likely this activity could precipitate, or aggravate, his symptoms. Finally, if I could review Mr. Crudup’s work requirements, it would be easier to determine if the carpal tunnel syndrome could be related to his work activity.
The supreme court affirmed a finding by the Commission that the doctor’s opinion of the likelihood of a causal connection between the claimant’s work and his carpal tunnel syndrome was not stated within a reasonable degree of medical certainty as required by section ll-9-102(16)(B)(Repl. 1996).
The case at bar is distinguishable because Doctor Jones’s opinion as to a causal connection between Freeman’s work activities at Con-Agra and her injuries did not contain equivocal expressions like “could,” “may,” or “possibly” that the supreme court held in Gaylord, supra, (overruling Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998)), lacked the definiteness required to meet the claimant’s burden to prove causation pursuant to section 11-9-102(16)(B). Unlike the doctors’ opinions in Gaylord and Crudup, Dr. Jones’s opinion was not that Freeman’s carpal tunnel syndrome CTS could have been consistent, or might have been consistent, or may have been consistent, or was possibly consistent, or likely could have been consistent, with the conditions of her work. To the contrary, the clear and unequivocal opinion of Dr. Jones as to the existence of a causal connection between Freeman’s injuries and her work activities, was that “[t]his overuse syndrome type picture is consistent with the job description she gives me.”
Following the receipt of this opinion from Dr. Jones, Freeman was referred to Dr. Nix, who agreed with Dr. Jones’s diagnosis of Freeman’s injuries. In a letter to Freeman’s lawyer, Dr. Nix described Freeman’s conditions as “usage related type injuries, often associated with repetitive motion....” Dr. Nix then went on to state the obvious that, “whether this particular repetitive usage is associated with production like work or other outside activities, I cannot comment on with a reasonable degree of medical certainty. I expect your investigation could help clarify this.” It is this unfortunate surplusage by Dr. Nix that the Commission has seized upon to support its conclusion that no causal connection has been established between Freeman’s injuries and the conditions of her work. This statement by Dr. Nix is not unlike Dr. Moore’s suggestion in Crudup, supra, to the effect that he “could not definitely state that the work [Crudup] performs ... is a primary cause of carpal tunnel syndrome, [but that] if I could review Mr. Crudup’s work requirements, it would be easier to determine if the carpal tunnel syndrome could be related to his work activity. These statements by Drs. Moore and Nix are exactly the type of qualified opinions one would expect to receive from an honest, objective doctor who is asked to express an opinion as to whether there is a causal connection between a medically diagnosed injury and a work activity that the doctor has not personally observed or with which he is not personally familiar. As the dissenting opinion observes in Gaylord, since “doctors generally are not present when an employee is injured, it is understandable that their opinions may be stated in less than certain terms.” Every opinion expressed by a doctor is not a medical opinion. A doctor cannot be expected to express, to a reasonable degree of medical certainty, that there is a causal connection between an injury he has diagnosed and work conditions with which he is not personally familiar, and a doctor’s refusal to do so is a credit to the ethics of his profession, not a failure to meet the burden of proof required by section 11-9-102(16) (B).
This brings me to the second reason for my dissent. With all due respect to the majority herein and to the supreme court in its Gaylord and Crudup decisions, I do not agree that section 11-9-102 can be interpreted to require that, as a condition of compensability, medical proof exists, to a reasonable degree of medical certainty, or otherwise, to establish a causal connection between one’s injury and his or her employment.1 As the majority notes, Freeman’s eligibility to recover benefits under the Workers’ Compensation Act for an injury alleged to be due for an injury characterized by gradual onset, section 11-9-102(5) controls. Under that section, “compen-sable injury” is defined as:
An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by the time and place of occurrence, if the injury is:
(a) Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as a compensable injury falling within this definition^]
As we have held before2, a claimant seeking benefits for a gradual onset injury must prove by a preponderance of the evidence that: (1) the injury arose out of and in the course of his or her employment (Ark. Code Ann. § 11-9-102(5)(A)(I)(Repl. 1996)), (2) the injury caused internal or external physical harm to the body that required medical services or resulted in disability or death (Ark. Code Ann. § 11-9-102(5)(A)(ii)(Repl. 1996)), (3) the injury was a major cause of the disability or need for treatment (Ark. Code Ann. § ll-9-102(5)(E)(ii)(Repl. 1996)), and (4) the injury must be established by medical evidence supported by objective findings (Ark. Code Ann. § ll-9-102(5)(D)(Repl. 1996)).
Among these four requirements, the only mention of a requirement for medical evidence is contained in section 11-9-102(5)(D)(Repl. 1996), which only requires that medical evidence, supported by objective findings, be produced to establish the injury. In other words, if there is no objective medical evidence of injury, there is no injury that is compensable under the Workers’ Compensation Act. This section requires medical evidence to establish the existence of an injury. It does not require that medical evidence also establish a causal connection between the work and the injury. While it is true that section ll-9-102(16)(B) requires that medical opinions addressing compensability be stated within a reasonable degree of medical certainty, there is no provision in the Workers’ Compensation Act requiring that medical evidence be produced to establish a causal connection between the medically diagnosed injury and the employee’s work activity. At the very most, section ll-9-102(16)(B) could be interpreted to mean that when medical opinions are relied upon to establish a causal connection between an injury and work conditions, such opinions must be stated within a reasonable degree of medical certainty. But there is nothing in the act that can be construed to mean that medical opinions addressing compensability are the only evidence that can establish that causal connection.
Section 11-9-102(5) (A) (i) obviously requires proof of a causal connection between the injury and the employment (i.e., that the injury arose out of and in the course of employment), but there is no mention of a requirement for medical evidence to prove it.
Section 11 -9-102(5) (A) (ii), while referring to causation, requires only that a claimant prove by a preponderance of the evidence that the injury caused internal or external physical harm that required medical services. While medical evidence may be necessary in many cases (but certainly not all of them) to establish the existence of internal or external physical harm, there is no requirement under this section that medical evidence be produced to establish that the injury caused the harm; nor is a medical opinion necessary to prove that the physical harm required medical services.
Finally, section 11-9-102(5) (E) (ii) makes no mention of the necessity for medical evidence to prove that an injury is the major cause of disability or need for treatment. No doubt, medical evidence could provide such proof; and in some instances, but not all, medical evidence might be the only way to establish a connection between the injury and its effect. But the statute does not require medical evidence in every instance to prove a causal connection between the injury and the disability or need for treatment.
In the case at bar, Con-Agra does not dispute Freeman’s testimony: that she worked for two years on a moving assembly line where she assembled frozen food trays; that she worked more than forty hours per week; that her duty on the line was to place correct portions of food items, including frozen meat, into a dinner tray; that she filled approximately sixty-five dinner trays per minute; and that the job required extensive use of her hands, wrists, and arms. Con-Agra did not deny that Freeman suffers from CTS and “tennis elbow.” Rather, it contested her claim on the basis that Freeman did not complain about her symptoms at their onset and that she did not contend that her injury was work related until after it had been diagnosed by her family physician.
Freeman was not required to prove that her CTS was caused by rapid and repetitive motion. She was required to prove only that her CTS was caused by conditions of her employment. Kildow v. Baldwin Piano and Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). In Kildow, the supreme court held that CTS was, by definition, a compensable injury that falls within the definition of rapid and repetitive motion.3 There was no evidence that Freeman had engaged in any non-work related activity that might have caused her injury. To suggest, as the Commission does, that Freeman’s bilateral CTS and bilateral tennis elbow could have been caused when she wiped up spilled tea from her kitchen counter is not only absurd but it ignores voluminous evidence to the contrary, including medical evidence that her injury is consistent with the conditions of her work. In his medical report, Dr. Jones stated that Freeman’s “overuse syndrome” was consistent with the job description Freeman gave to him. There is no contention by Con-Agra that Freeman did not give a complete and accurate description of her job to Dr. Jones. The Commission chose to disregard Dr. Jones’s opinion because it contained no reference to the incident Freeman’s experience of pain in her wrist while wiping up spilled tea. However, Dr. Jones’s characterization of Freeman’s condition as an “overuse syndrome” belies any notion that Freemen’s bilateral CTS and bilateral tennis elbow could have been caused by a single incident of wiping spilled tea from her counter-top. On the other hand, Dr. Nix, while agreeing with Dr. Jones that Freeman’s conditions were “usage related type injuries, often associated with repetitive motion ...,” cautiously avoided offering an opinion on causation, deferring instead to Freeman’s attorney to “clarify” that issue through his investigation, obviously recognizing that it was not a medical decision.
As noted by the dissenting opinion in Gaylord, even though Ark. Code Ann. § ll-9-102(16)(B) requires a doctor’s opinion to be stated within a reasonable degree of medical certainty, it does not require that the doctor’s opinion must be stated in unequivocal terms. A doctor who has not personally witnessed the occurrence of an injury or personally viewed the work conditions that are claimed to have resulted in'an injury cannot possibly be expected to express with absolute certainty whether an injury was caused by his patient’s work. All doctors can be expected to do is express an opinion as to whether the injury he has diagnosed is consistent with the work history that has been provided to him. That opinion then becomes merely some of the evidence that is to be considered in determining whether there is a causal connection between the injury and the work.
The majority herein, and the supreme court in Gaylord and Crudup, supra, have imposed a requirement for establishing compen-sability under the Workers’ Compensation Act that is not contained in the Act. It is an unreasonable requirement, if not an insurmountable one, to require workers’ compensation claimants to induce a medical doctor to express, in reasonably certain medical terms, his opinion that there is a causal connection between a medically diagnosed injury and non-medical work conditions when the doctor is unqualified and, therefore, unwilling to express such an opinion. The reluctance of doctors to express opinions as to causation is exemplified by Dr. Nix’s letter suggesting that Freeman’s lawyer should develop evidence of such causation through his investigation, and Dr. Michael Moore’s report in Crudup to the effect that further information about an injured employee’s work conditions should be provided as a prerequisite to the expression of such an opinion. What these doctors are trying to say is that an opinion as to whether a particular work condition caused a particular injury is simply not a medical opinion.
I would deny the petition for rehearing, and I am authorized to state that Judge STROUD joins me in this dissenting opinion.
In Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 446, 990 S.W.2d 522, 524 (1999), the supreme court affirmed the court of appeals’ holding that “the requirement that a compensable injury must be established by medical evidence supported by objective findings applies only to the existence and extent of the injury.”
Steveson v. Frolic Footwear, 70 Ark. App. 383, 20 S.W.3d 413 (2000); Lay v. United Parcel Serv., 58 Ark. App. 35, 944 S.W.2d 867 (1997).
Of course, Kildow is not applicable to Freeman’s “tennis elbow” because that condition is not included in Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) as an injury categorized as a compensable injury falling within the definition of rapid and repetitive motion. However, since the majority affirms the Commission’s decision that there was no medical opinion stated to a reasonable degree of medical certainty to establish a causal connection between any of Freeman’s injuries and the conditions of her employment, and makes no distinction between the elements of proof required to prove compensability for Freeman’s CTS and her bilateral “tennis elbow,” that distinction will not be addressed in this dissenting opinion.