CLAIM NO. F012522
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 15, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE MARSHALL H. MOORE, Attorney at Law, Texarkana, Arkansas.
Respondent represented by HONORABLE MICHAEL McCARTY HARRISON and HONORABLE GILL A. ROGERS, Attorneys at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondent appeals to the Full Workers’ Compensation Commission an Administrative Law Judge’s opinion filed September 10, 2001. The Administrative Law Judge found that the claimant sustained an injury arising out of and in the course of his employment on October 20, 2000 in the form of a hernia, pursuant to Ark. Code Ann. § 11-9-523. After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.
I. HISTORY
Timothy Davis, age 30, was employed with the respondent on October 20, 2000. He testified:
Q. What kind of work were you doing?
A. Loading six five-pound boxes into one big box and then stacking those big boxes on —
Q. When you say stack them, you stacked five pound boxes into a bigger box?
A. Yes, sir. . . .
Q. And you will stack those how many high?
A. If I remember correctly, twelve or thirteen. I can’t remember exactly how high they went with it.
Q. Is it high enough that you have to reach above your head?
A. Yes, sir. . . .
Q. Tell the Judge what happened on that particular day that you were injured.
A. . . . I was stacking them on the top layer, on the back, which I had to stand up on my tiptoes and lob it up there to where it would go over to the back and then I would have to go around and adjust it, you know. Whenever I stood up on my toes and threw it, that’s when I had a sharp pain down in here. . . .
Q. Did you have a particular pain?
A. Sharp pain right in the lower area here, lower part of my stomach. . . .
Q. What did you do after this pain came about?
A. Well, I told `em that, you know, I’m hurting and I’d like to go home. . . .
Q. What did you tell the leadman and Robert?
A. I told them that I had a headache and my stomach was hurting really bad, my lower stomach, and I showed them the area I was hurting. . . .
Q. What did you do next after you talked to the leadman and to Robert?
A. I asked to go home. I asked Robert and he said that he had let too many go home today already and he could not let me go home, so I finished the day of work out.
Robert Walker was a foreman for the respondent employer on October 20, 2000. He testified:
Q. . . . was Timothy Davis under your supervision?
A. Yes.
Q. Do you remember him coming to you on October 20, 2000, and complaining in some way?
A. Well, he came to my swing, that’s the guy that works under me, and he told him that he wanted to talk to me.
Q. And did you go talk to him?
A. Yes.
Q. What did he tell you?
A. He said, man, I’m feeling kind of sick, I’ve got a headache and a stomach ache, can I go home. . . . That was a Friday and that’s one of our busiest days. I said, I’m kind of shorthanded, if you could, could you keep working. He said, yes. Then he worked a full day. . . .
Q. Did he ever tell you that he was hurt on the job, meaning that he had gotten an injury at work?
A. No.
The claimant testified that he worked in pain the rest of the day and went home. The record indicates that the claimant presented to St. Michael Health Care Center on October 22, 2000, complaining of testicular pain:
HISORY (SIC) OF PRESENT ILLNESS: 29 year old white male presents with pain in his right testicular area that began this morning. He has not had this pain previously and has not had any other symptoms. . . .
SOCIAL HISTORY: He works in some kind of factory where he lifts five pound boxes and puts them into a bigger box that holds six of these, and then he picks up the 30 pound boxes.
REVIEW OF SYSTEMS: He has also had a little nausea, no vomiting, no fever, diarrhea, constipation or dysuria. He has had some epigastric pain the other day, and he notes that for the past week he has had decreased sexual drive. Review of systems otherwise negative. . . .
EXTREMITIES: Reveals a hernia in the right inguinal area with cough or val salvo maneuver.
The physician assessed “right inguinal hernia.” The claimant apparently underwent a hernia repair in November 2000. Mr. Davis claimed entitlement to workers’ compensation, contending that he had sustained a compensable injury in the form of a hernia. After a hearing before the Administrative Law Judge and a remand by the Full Commission for more specific findings, the Administrative Law Judge found, “On October 20, 2000, the claimant sustained an injury arising out of and in the course of his employment, in the form of a hernia pursuant to Ark. Code Ann. § 11-9-523.” The Administrative Law Judge awarded temporary total disability compensation and medical treatment. The respondent appeals to the Full Commission.
II. ADJUDICATION
Ark. Code Ann. § 11-9-523(a) provides that in all cases of claims for hernia, it shall be shown to the satisfaction of the Commission:
(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
(2) That there was severe pain in the hernial region;
(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; and
(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.
In the present matter, the Full Commission affirms the Administrative Law Judge’s finding that the claimant satisfied each element of Ark. Code Ann. § 11-9-523(a). The Dissenting Opinion contends that the claimant’s hernia did not immediately follow as the result of his work for the respondent on October 20, 2000. The determination of the weight and credibility of a witness’ testimony is within the sole province of the Commission. Min-Ark Pallet Company v. Lindsey, 58 Ark. App. 309, 950 S.W.2d 468 (1997). The Full Commission finds that the claimant was a credible witness. The claimant testified that he was stacking boxes for the respondent on October 20, 2000. The claimant testified that he felt a sharp pain in his lower abdomen after standing on his toes to lob a box over his head.
We recognize that the emergency room record from October 22, 2000 mentions “pain that began this morning.” However, the doctor’s notes from that date also mention the claimant’s work for the respondents. The claimant credibly testified that he told the treating physician that the abdominal pain began after the lifting incident of October 20, 2000, and that his symptoms had increased on October 22, 2000. The Full Commission therefore affirms the Administrative Law Judge’s finding that (1) the occurrence of the claimant’s hernia immediately followed as the result of sudden effort, severe strain, or application of force directly to the abdominal wall.
The Dissenting Opinion asserts that the claimant did not sustain severe pain in the hernial region as a result of his employment with the respondent. The Dissenting Opinion cites Robert Walker’s testimony that the claimant had only a stomach ache. However, we find from a preponderance of the evidence that the claimant did show that there was severe pain in the hernial region immediately following the October 20, 2000 workplace incident. The claimant credibly testified that he felt a “sharp pain” in the lower part of his stomach. Such a description by an employee satisfies the provision of Ark. Code Ann. § 11-9-523(a)(2).See, White v. Rogers Public Schools District #30, Full Workers’ Compensation Commission, Opinion filed March 6, 1997 (W.C.C. No. E602199); Grigg v. Swift-Eckrich, Full Workers’ Compensation Commission, Opinion filed November 13, 1997 (W.C.C. No. E612378). The Full Commission finds that the claimant satisfied the provision of Ark. Code Ann. §11-9-523(a)(2).
We also find that the claimant’s severe hernial pain caused him to cease work immediately. The Dissenting Opinion correctly notes that the claimant finished the remainder of his work shift after reporting the hernia to Robert Walker on October 20, 2000. However, the record shows that the claimant did stop working and asked Mr. Walker if he could go home for the day. Mr. Walker told the claimant he needed to stay, so the claimant worked the remainder of his shift. Such a circumstance satisfies the provision of Ark. Code Ann. § 11-9-523(a)(3). See, Ayres v.Historic Preservation Associates, 24 Ark. App. 40, 747 S.W.2d 587
(1988).
Additionally, the Full Commission finds from the record that notice of the occurrence was given to the employer within 48 hours thereafter. The claimant, whom the Commission finds to be credible, testified that he told his leadman and his supervisor that he was feeling sharp pain in his lower stomach immediately following the lifting incident of October 20, 2000. The claimant testified that he called the respondent on October 22, 2000, which is within 48 hours, “to tell them that I couldn’t return to work until I saw Dr. A.D. Smith.” Nancy Sturgeon corroborated the claimant’s testimony that he notified the respondents of the injury within 48 hours. In finding that the claimant satisfied the provision of Ark. Code Ann. § 11-9-523(a)(4), the Full Commission relies on neither the claimant’s company badge nor the telephone bill objected to by the Dissenting Opinion.
Finally, the claimant’s credible testimony and the medical records clearly show that physical distress following occurrence of the hernia was such as to require the attendance of a physician within 72 hours after the occurrence, pursuant to Ark. Code Ann. § 11-9-523(a)(5).
Based on our de novo review of the entire record, the Full Commission finds that the claimant satisfied each provision of Ark. Code Ann. §11-9-523(a). We therefore affirm the Administrative Law Judge’s finding that the claimant sustained a compensable injury in the form of a hernia, that the claimant was temporarily totally disabled from October 23, 2000 through December 4, 2000, and that the respondent shall pay all reasonable hospital and medical expenses arising out of the October 20, 2000 compensable injury.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann.§ 11-9-809 (Supp. 2001).
For prevailing on this appeal before the Full Commission, the claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715
(Supp. 2001).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.
DISSENTING OPINION
JOE E. YATES, Commissioner
I must respectfully dissent from the majority opinion finding that the claimant sustained a compensable hernia. Based upon my de novo review of the record, I find that the claimant has failed to meet his burden of proof.
In my opinion, a review of the evidence indicates that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable hernia. The medical evidence reveals that the occurrence of the hernia was not immediately following the claimant standing on his toes and lobbing boxes onto a pallet. The emergency room history the claimant gave to the emergency room on October 22, 2000, when he presented with right testicular area pain, states:
Presents with pain in his right testicular area that began this morning. He has not had this pain previously and has not had any other symptoms.
The claimant did not inform anyone at the emergency room that he had injured himself at work and he informed the treating physician, Dr. Smith, only that he “may have injured himself.”
A further review of the evidence shows that the claimant did not sustain severe pain in the hernia region. On Friday, October 20, 2000, when the claimant alleges that he sustained this allegedly compensable hernia, the claimant asked his foreman, Robert Walker, if he could go home. The claimant told Mr. Walker only that he was feeling sick and that he had a headache and stomach ache. The claimant did not tell Mr. Walker that he was experiencing any testicular pain, that he had injured himself on the job, or that he needed to see the company nurse. Furthermore, at his deposition on January 4, 2001, the claimant testified that he did not think anything of the pain that he experienced on October 20, 2000.
The claimant also did not cease work immediately. After the claimant informed Mr. Walker that he was sick, the claimant continued to work the remainder of his shift, which was approximately six to seven hours. It is of note that the claimant did not ask to see the nurse or complain of any sort of pain or sickness for the entire six to seven hours.
The claimant also failed to give the respondent notice that he had sustained an on-the-job injury within 48 hours. The claimant argued that he had informed the respondent of the on-the-job injury when he spoke to Mr. Walker on October 20, 2000. However, Mr. Walker’s testimony indicates that after speaking to the claimant, he had absolutely no indication in his mind that the claimant had been injured that day. Furthermore, the claimant testified that he only informed Mr. Walker that he was sick and not hurt or injured on-the-job.
Therefore, after I consider all the evidence, I find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable hernia. Accordingly, I must dissent from the majority opinion awarding benefits.
_______________________________ JOE E. YATES, Commissioner