dissenting. I dissent from the majority opinion affirming the decision of the Worker’s Compensation Commission which held that the appellant had failed to establish her injury with “medical evidence supported by objective findings.” Ark. Code Ann. § ll-9-102(5)(D) (Repl. 1996) provides that “A compensable injury must be established by medical evidence, supported by ‘objective findings,’ ” defined in § ll-9-102(16)(A)(i) (Repl. 1996) as, “those findings which cannot come under the voluntary control of the patient.”
First, it is important to note that all that is involved in this case, at this point, is whether the appellant sustained a compensable injury. That is what the frill Commission’s opinion states in its first and concluding paragraphs — that the appellant did not establish a compensable injury.
Thus, we are not concerned with Ark. Code Ann. § 11 — 9— 102(16)(A)(ii) (Repl. 1996) which says that “when determining physical or anatomical impairment” pain may not be considered, etc.
In the second place, Dr. Earl Peeples, appellant’s physician, testified that the Tinel’s test, compression test, hyperextension test, and hyperflexion test are objective tests because they have built-in safeguards to disclose dishonest responses from the patient. He illustrated by describing the Tinel’s test, in which the doctor taps along the nerve root. If the patient describes a tingling or electrical sensation it is a positive indicator of irritated or damaged nerve fibers. Dr. Peeples said that, without telling the patient what response he expects, he also taps in some areas that are outside the nerve pathway to give the patient the opportunity to report sensations that would be misleading. Dr. Peeples testified:
I think it’s important to understand that the system can only work if you reasonably assume that people are telling you how their body feels. And to check a nerve or to check many things, you have to ask someone, “Is this tender?”
Now, that is different from the subjective description of, “I have pains that shoot out my ears,” or, “I have pains that run down my spine.” That is a subjective description.
But if I tap a particular location or if I place a joint in a particular position and say, “Does this hurt as opposed to this position?” then I’m asking for the patient to use their nervous system to tell me what makes them comfortable or uncomfortable. And that is objective. The patient must communicate that to me. Obviously, I cannot perform these tests on a comatose patient.
Nevertheless, the majority holds that because these diagnostic tests rely on the patient’s verbal descriptions of physical sensations produced by various stimuli, they are under the “voluntary control” of the patient, and are not, therefore, “objective findings.” The majority concludes, “Despite the evidence tending to show the accuracy and reliability of the tests performed on appellant, it is nevertheless clear that they depended on voluntary responses and that the findings obtained from them could be controlled by a knowledgeable patient.” (Emphasis added.)
To the contrary, I think it would take a highly trained, medically sophisticated patient to know the exact nerve path associated with carpal tunnel syndrome.
Although a patient with carpal tunnel syndrome might voluntarily control her responses to pain, assuming she knew the path of the nerve root, she cannot control the pain itself. And, according to Dr. Peeples, it is not even pain that the carpal tunnel patient is expected to report; it is a tingling or electrical sensation. Dr. Peeples said that he considers the tests involved in diagnosing carpal tunnel syndrome objective tests because of the safeguards which are incorporated into them to insure reliability, and that he relies upon these tests to diagnose and treat carpal tunnel syndrome, even though verbal responses from the patient are essential to the diagnosis. I do not see how then we can say these tests are not objective just because the patient must vocalize her responses to stimuli and the words used are in her voluntary control. And I do not think the Arkansas legislature intended that the medical profession should have to do away with rehable and dependable tests in order to diagnose and treat an employee who has sustained an accidental injury on the job.
Therefore, I dissent.
I am authorized to report that ROGERS, J., joins in this dissent.