CLAIM NO. E804688
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 1, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by GEORGE S. IVORY, JR., Attorney at Law, Little Rock, Arkansas.
Respondent represented by JOSEPH H. PURVIS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed
[1] OPINION AND ORDER[2] The respondent appeals a decision of the Administrative Law Judge filed on January 14, 1999, finding that the claimant proved by a preponderance of the evidence that he sustained a compensable hernia on April 16, 1998. Based upon our de novo review of the record, we find that the claimant has failed to meet his burden of proof by a preponderance of the credible evidence of record. Therefore, we find that the decision of the Administrative Law Judge must be reversed. [3] The claimant was employed by the respondent as the result of a work release program. On December 17, 1997, the claimant sustained an admittedly compensable hernia in his right groin area. The hernia was surgically repaired and the claimant returned to work for the respondent. The respondent paid all appropriate benefits. On April 16, 1998, the claimant had a regularly scheduled follow-up visit for his right hernia with Dr. Steven Williamson. The claimant testified that on that date between 12:30 and 12:45 he was stacking and removing boxes from a conveyor belt and experienced a sharp pain in his groin area. The claimant indicated that he ceased work immediately and went to the nurse’s station to wait for his ride to pick him up for his scheduled doctors appointment. The claimant testified that he reported to his supervisor or his lead man that he was hurting. At the nurse’s office, the claimant obtained the paperwork to take to the doctor’s office with him but failed to even mention to the nurse that he hurt himself immediately prior to going to her office. [4] The claimant was examined by Dr. Williamson and complained to the doctor that he had sharp pains on his left side. The doctor checked his repaired right side and then determined that he had a hernia on the left. The claimant returned to the office and told Ms. Jana Martin, the company nurse, that the doctor said he had another hernia and he could not work doing any heavy lifting. [5] The claimant testified that when he experienced his first hernia in December of 1997, he immediately reported his injury to his supervisors. However, claimant admitted that he never told his supervisor on April 16, 1998, that he had injured himself at work that day. Further, the claimant failed to say anything to the nurse about hurting himself again while he was sitting in her office waiting for his ride to pick him up to take him to the doctor’s office. Moreover, the claimant failed to indicate to Dr. Williamson that he had hurt himself at work that day. It is also of note that the claimant did not report an injury after he returned to the respondent employer after Dr. Williamson diagnosed him with another hernia. The first time that the claimant reported an injury to the respondent was five days later on April 21, 1998. [6] Mr. Butch Atwood, the claimant’s supervisor, testified that the respondent had a procedure to follow if a person was injured at work. Everyone was required to go through orientation when they were hired and this procedure is explained. He stated that he knew that the claimant was aware of the procedure because he followed the procedure when he reported his hernia in December of 1997. Mr. Atwood testified that the claimant did not indicate to him on April 16, 1998, that he had injured himself or thought that he had a new hernia. If the claimant had indicated to him that he had increased pain or physical problems he would have had the claimant fill out another accident report and would have sent the claimant to the nurse. [7] Mr. Charles Kesterson testified that he was working as the lead man over the module where the claimant was working in April of 1998. He testified that the claimant did not notify him of an injury and that he did know the claimant had a regularly scheduled follow-up visit with the doctor. Mr. Kesterson stated that the claimant did not report an injury to him but if he had he would have filled out an accident report and given it to Mr. Atwood. [8] Ms. Martin, the industrial nurse, stated that reports from supervisors regarding the on-the-job injuries come through her office. She was familiar with the claimant’s right hernia and had completed the paperwork on that incident. She had also scheduled the claimant’s follow-up visit with Dr. Williamson on April 16, 1998. She testified that the claimant spent time in her office on that date prior to going to the doctor and that he did not report any new injury or complain about any pain he was experiencing. Ms. Martin further testified that she noted to the claimant that she was confused when he was not released for work after returning from the doctor. The claimant told her that he had been diagnosed with a left inguinal hernia. There was nothing in Dr. Williamson’s medical report which indicated it was in fact caused by an on-the-job injury. [9] The medical evidence also fails to show that the claimant did not report the injury to Dr. Williamson. Dr. Williamson’s office note dated April 16, 1998, states:
[10] In his deposition, Dr. Williamson testified that he could not recall the claimant relating any specific incident to him that caused the left hernia pain. Dr. Williamson could only state that the claimant’s left side hernia occurred somewhere between December of 1997 and April of 1998. [11] The burden of proof rests upon the claimant to prove the compensability of his claim. Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is compensable, that the claimant’s injury is job-related or that a claimant is entitled to benefits. Crouch Funeral Home v.Crouch, 262 Ark. 417, 557 S.W.2d 392 (1977); O.K. Processing,Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (Repl. 1996). In determining whether a claimant has sustained his burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704; Wade v. Mr. C Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). [12] In order to prove that a hernia is compensable, a claimant must satisfy all the requirements of Ark. Code Ann. § 11-9-523(a) which provides:He is not having any symptoms in the right groin but now has symptoms in his left groin. He says that he has pain in the left groin with cough, with straining and with bending.
On physical examination there is a small inguinal hernia on the left. The right groin is without hernia recurrence. I have recommended that he not do any heavy lifting and that he see me when he is ready to have something done about this hernia. I have recommended that it be repaired.
(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or application of force directly to the abdominal wall;
(2) that there was severe pain in the hernial region;
[13] If the claimant fails to prove any element, his claim fails. [14] In our opinion, the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable hernia on April 16, 1998. The evidence shows that the claimant failed to report to anyone on April 16, 1998, the very day of the alleged injury, that he experienced any severe pain as a result of any work activity. The claimant’s supervisor as well as the nurse testified that the claimant did not relate any event to them. Further, the claimant had a regularly scheduled doctor’s visit and sat in the nurse’s office waiting for his ride to pick him up but failed to mention that he had pain in his left groin area. Moreover, after Dr. Williamson diagnosed the claimant with a new hernia, the claimant still did not inform his employer of the alleged precipitating event earlier in the day. This is overwhelming evidence in light of the fact that claimant was well aware of the respondents procedure for reporting job related injuries in that he had sustained a work-related hernia in December of 1997. [15] It is also significant that Dr. Williamson’s report of April 16, 1998, fails to recount any statement from the claimant concerning any event that caused the claimant’s left hernia. The claimant apparently only recounted to the doctor that he had pain in his left groin with cough, straining and bending. The only evidence that we have supporting the claimant’s contention that he suffered an injury on April 16, 1998, is the claimant’s own testimony. The claimant’s testimony is suspect at best considering that he spoke with numerous individuals prior to and after returning from the doctor’s office. He failed to mention to any of these individuals that he had suffered an injury even after being diagnosed by Dr. Williamson with a new hernia. It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony.Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626(3) that the pain caused the employee to cease work immediately;
(4) that notice of the occurrence was given to the employer within forty-eight (48) hours thereafter;
(5) that the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within seventy-two (72) hours after the occurrence.
(1994). Furthermore, the Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). In order for us to make a determination that the claimant sustained a compensable injury would require us to resort to conjecture and speculation. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v.Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). [16] Therefore, after considering all the evidence, the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable hernia on April 16, 1998. Accordingly, for the reasons set forth herein we hereby reverse the decision of the Administrative Law Judge and deny and dismiss this claim. [17] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[18] Commissioner Humphrey dissents.