GROVER v. CONTINENTAL EXPRESS, 2002 AWCC 54

CLAIM NO. F103738

SANDRA GROVER, EMPLOYEE, CLAIMANT v. CONTINENTAL EXPRESS, INC., EMPLOYER, RESPONDENT, GIBRALTAR NATIONAL INSURANCE, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
ORDER FILED MARCH 5, 2002

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant appeared pro se.

Respondents represented by the HONORABLE CAROL L. WORLEY, Attorney at Law, Little Rock, Arkansas.

ORDER
The claimant appeals to the Full Workers’ Compensation Commission an Administrative Law Judge’s opinion filed September 28, 2001. The Administrative Law Judge found that the claimant “has failed to prove by a preponderance of the credible evidence of record that she sustained a gradual injury, caused by rapid and repetitive motion arising out of and in the course of her employment which produced physical bodily harm, supported by objective findings, which was the major cause of disability or the need for medical treatment, pursuant to A.C.A. § 11-9-102.” After reviewing the entire record de novo, the Full Commission vacates the Administrative Law Judge’s finding, and we remand for proper adjudication of this matter pursuant to Ark. Code Ann. § 11-9-523.

Sandra Grover, age 37, underwent a “Repair of recurrent right inguinal hernia with mesh” on April 11, 2001. Ms. Grover subsequently claimed entitlement to workers’ compensation benefits. The claimant, pro se, contended that she sustained a hernia on March 29, 2001 and that she was entitled to reasonable and necessary medical treatment. The claimant also contended that she was entitled to temporary total disability compensation from March 30, 2001 through May 14, 2001.

The respondents contended that the claimant could not prove that she sustained a compensable injury, pursuant to Ark. Code Ann. §11-9-523(a)(1),(3),(4), and (5). The respondents contended that the claimant’s condition “developed in November, 2000 and progressively grew worse culminating in surgical repair.”

A Prehearing Order was filed with the Commission on June 14, 2001. In the Prehearing Order, the Administrative Law Judge directed that the respondents should answer the claimant’s discovery requests on or before July 6, 2001. A hearing was held before the Commission on September 20, 2001, and the Administrative Law Judge filed an opinion on September 28, 2001. The Administrative Law Judge determined, “At issue is whether or not the claimant sustained a compensable incisional hernia pursuant to Ark. Code Ann. § 11-9-102.” The Administrative Law Judge found, “the evidence does not preponderate in favor of the claimant and benefits must be denied.”

The Administrative Law Judge erred as a matter of fact and law. The record before the Commission does not indicate that the claimant sustained an “incisional” hernia. Further, neither the claimant nor the respondents contended that the claimant had sustained such an injury. The respondents expressly contended that the claimant could not prove that she sustained a compensable injury pursuant to Ark. Code Ann. §11-9-523(a)(1),(3),(4), and (5). Ark. Code Ann. § 11-9-523 is the “hernia” section of Arkansas Workers’ Compensation Law, meant to apply to “inguinal” hernias, such as diagnosed in the instant matter. See,Bottoms Baptist Orphanage v. Johnson, 240 Ark. 175, 398 S.W.2d 544
(1966); Loveless v. Garrison Furniture Co., 251 Ark. 776, 475 S.W.2d 158
(1972).

The Full Commission vacates the Administrative Law Judge’s finding that the claimant failed to prove that she sustained a compensable injury pursuant to Ark. Code Ann. § 11-9-102. We remand for the Administrative Law Judge to properly adjudicate this matter pursuant to Ark. Code Ann. § 11-9-523. The Full Commission also directs the Administrative Law Judge to adjudicate whether the respondents have complied with the claimant’s discovery requests, as provided in the June 14, 2001 Prehearing Order. IT IS SO ORDERED.

______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
______________________________ JOE E. YATES, Commissioner