CLAIM NO. E712146
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 12, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant appeared Pro se.
Respondent represented by BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed
[1] OPINION AND ORDER[2] Respondent appeals a decision of the Administrative Law Judge filed on May 8, 1998, finding that claimant sustained a compensable hernia on August 16, 1994. Based upon ourde novo review of the entire record, we find that claimant has failed to meet his burden of proof. Therefore, we find that the decision of the Administrative Law Judge must be reversed. [3] At the hearing held on March 26, 1998, claimant contended that he sustained an umbilical hernia on August 16, 1997, during the course and scope of his employment. Conversely, respondent contends that claimant has failed to satisfy the necessary elements for a compensable injury. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we find that claimant has failed to prove by a preponderance of the evidence that he sustained a hernia which is causally related to his employment. [4] In order for a hernia injury to be compensable Ark. Code Ann. § 11-9-523(a) (Repl. 1996) requires a claimant to prove the following:
(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;
[5] Our de novo review of the entire record reveals that claimant has failed to prove the compensability of his hernia by a preponderance of the credible evidence of record. First, it is noted that claimant and his wife were unable to provide corroborating testimony regarding the events surrounding claimant’s alleged hernia. While both testified that the hernia occurred in the respondent’s yard when claimant was unhooking the fifth wheel while claimant’s wife was in the cab of the truck, all other aspects of their testimony is inconsistent. [6] Claimant testified that the incident occurred when he and his wife entered the yard to unhook a trailer in the process of getting ready to leave on a trip for respondent. Claimant further testified that the incident occurred around 4:00 or 5:00 in the evening. Claimant’s wife testified that the incident occurred when he and his wife entered the yard after coming back from a trip and were in the process of unhooking the trailer and cleaning the cab of the truck. She further testified that the incident occurred after dark and after the incident occurred she and her husband got in their personal vehicle and drove home. [7] The findings of the Administrative Law Judge on issue of credibility are not binding on the Commission. Roberts v.Leo-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983),Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987). 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. RicelandFoods, 47 Ark. App. 71, 884 S.W.2d 626 (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). [8] When we consider the inconsistencies in the testimony from the claimant and his wife, we are not convinced that claimant actually sustained a hernia during the course and scope of his employment. This finding is further substantiated by the testimony of respondent’s witnesses. In particular, Mike Gamble, an admitted friend of the claimant, testified that he and his wife were on a boating trip with the claimant in July of 1997 when a discussion regarding claimant’s hernia came up. This boating trip obviously occurred prior to the alleged work-related incident. Furthermore, respondent introduced claimant’s daily driver logs which failed to corroborate claimant’s testimony of being in the yard in the late afternoon or evening of August 16, 1997. Even giving the claimant the benefit of the doubt with regard to the date of his injury and assuming that the injury occurred on Sunday, August 17, 1997, the driver’s daily log does not support claimant’s testimony. This log reveals that claimant was off duty and never in respondent’s yard on Saturday, August 16th, and was only in respondent’s yard in the morning hours of Sunday, August 17th and was clearly out of the state in Georgia during the evening hours. [9] Accordingly, when we consider the credible evidence of record, we find that claimant has failed to prove by a preponderance of the evidence that he sustained a hernia during the course and scope of his employment with respondent on either August 16th or August 17, 1997. Claimant simply failed to present credible corroborating evidence of his alleged incident. Moreover, claimant failed to overcome the respondent’s evidence which revealed that claimant had a hernia in July of 1997 clearly prior to the alleged incident. Accordingly, we find the decision of the Administrative Law Judge finding that claimant sustained a compensable hernia must be reversed. [10] Furthermore, we reverse the decision of the Administrative Law Judge finding that respondent is estopped from denying responsibility for the medical benefits associated with the alleged incident. At most, the evidence reveals that respondent is estopped from denying responsibility for claimant’s initial doctor’s visit. See Southern Hospitalities v. Britton, 54 Ark. App. 318, 925 S.W.2d 81 (1996). However, we find that the credible evidence reveals that respondent did not authorize further treatment, including but not limited to the hernia repair surgery. Respondent presented credible evidence that when the hospital telephoned to verify coverage, Bonnie McFarlin did not authorize the surgery. Rather, Ms. McFarlin advised the hospital that if claimant had a compensable injury he was a covered employee under their workers’ compensation policy. However as Ms. McFarlin explained, she advised the hospital that it would have to seek authorization from the insurance carrier for the surgery. Accordingly, we find that claimant has failed to prove that respondent is estopped from denying liability for claimant’s surgery based upon the evidence in this record. It is one thing to be an employee covered under workers’ compensation insurance and quite another to be an employee with a compensable injury for which workers’ compensation is liable. Claimant has failed to put forth sufficient evidence to establish or explain how he and the hospital relied upon the representation of respondent. Accordingly, we find that the decision of the Administrative Law Judge finding that respondent is estopped from denying liability for claimant’s surgery must be reversed. [11] Therefore, for those reasons set forth herein, we find that the decision of the Administrative Law Judge must be, and hereby is, reversed. [12] IT IS SO ORDERED. [13] _______________________________(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.
ELDON F. COFFMAN, Chairman
_______________________________ MIKE WILSON, Commissioner
[14] Commissioner Humphrey dissents.