JACKSON v. CANNON EXPRESS, 1995 AWCC 155

CLAIM NO. E312314

RANDY JACKSON, EMPLOYEE, CLAIMANT v. CANNON EXPRESS, EMPLOYER, RESPONDENT and EMPLOYERS’ SELF-INSURED SERVICES, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 17, 1995

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

Claimant appeared by pro se.

Respondent represented by CONSTANCE CLARK, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] This matter comes on for review by the Full Commission on appeal by respondent and cross-appeal by claimant from the decision of an Administrative Law Judge filed on July 7, 1994.

[3] Claimant asks that the hernia statute of the workers’ compensation law be liberally construed in his favor so to carry out the humane purposes of the Act. Claimant contends that there should not be overemphasis on technicalities. However, it is clear that we have been mandated by Act 796 of 1993 to strictly apply the law. As we have stated on many occasions, Section 35 of Act 796 of 1993 prohibits the Administrative Law Judges, Full Commission, and the courts from eroding the workers’ compensation law. Although the hernia section was not changed by Act 796 of 1993, the major policy requirement is applicable to all statutes. Keeping this in mind when applying the appropriate law to the facts of this case, claimant has failed to prove by a preponderance of the credible evidence that he sustained a compensable injury. [4] A.C.A. § 11-9-523 provides that five requirements must be met in order for there to be a compensable hernia. The statute requires a claimant to prove:

(1) that the occurrence of the hernia immediately followed as a result of the sudden effort, severe strain, or the application of force directly on the abdominal wall;

(2) 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 the employer within forty-eight hours thereafter; and,
(5) that the distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within seventy-two hours after the occurrence.

[5] Based upon a de novo review of the record, claimant has failed to prove by a preponderance of the credible evidence any of these elements. Therefore, as stated, we reverse the decision of the Administrative Law Judge. [6] A review of the evidence indicates that claimant’s alleged hernia did not follow the result of sudden effort,severe strain or the application of force directly on theabdominal wall. Claimant offers a questionable version of the incident. He claims that he and an “elderly gentleman” manually pushed forty-three, nine hundred pound, rolls of paper out of a tractor-trailer rig, across a dock, into an elevator and then off an elevator. We do not find this story very credible. However, even if we accept claimant’s version, there is no testimony of any sudden effort, severe strain or force to his abdominal wall which precipitated the hernia. Claimant’s testimony only indicates that he “felt a little pull in my stomach and pain.” He later described the stomach feelings as a “little twinge” or a “burning” or “stretching” sensation in his abdomen. At no time did claimant describe his stomach symptoms as following on the heals of sudden effort, severe strain or force to the abdominal wall. [7] In conjunction with the aforementioned, it is clear that claimant did not experience severe pain in the hernial region. Claimant described the feeling in his stomach and a twinge, burn or stretching. Claimant did not describe it as a severe pain. Claimant readily acknowledges that after the alleged loading incident, he continued to unload the paper, continued to drive his truck and went about with his daily routine for over two weeks. When claimant finally did see a physician in July of 1993, he gave no history of a work-related injury. Claimant only complained of “some slight suprapubic pain and what he described as a bump under his umbilicus.” [8] Furthermore, a review of the evidence indicates that the pain was not sufficient to cause claimant to cease work immediately. Although claimant contends that it was, the evidence indicates that claimant did not cease work immediately. Claimant acknowledges that he did not quit work. Although he contends that he had to rest after unloading the truck, other credible evidence contradicts this testimony. Claimant gave a recorded statement to an adjuster immediately preceding the reporting of the injury (albeit two weeks after the alleged incident). This statement does not indicate that claimant ceased work. In fact, as previously noted, claimant continued his driving duties. Even after seeing a physician on July 24, 1993, he continued his employment as a truck driver for respondent. Additionally, as of the day of the hearing, claimant was still driving his truck and had not missed a single day’s work. This fact alone strongly suggests that there is no causal connection between claimant’s hernia and his employment. This also supports the doctor’s suspicion and the theory that claimant had a congenital hernia perhaps from birth. [9] Although claimant contends that he gave the requisite notice, a preponderance of the credible evidence does not support his contention. The law requires that notice of an occurrence must be given within a 48 hour period. Claimant does not have to give notice of a hernia
as he states. Claimant contends that his lack of notice should be overlooked because he did not know he had a hernia. However, as stated, it is not necessary to notify the employer of a hernia. It is only necessary that claimant give notice of the occurrence. The recorded statement given by claimant to the adjuster in July of 1993 indicates that it was a week or more after the alleged injury when claimant gave notice of the occurrence. This is further supported by the testimony of the dispatcher, Ed Paige. Mr. Paige testified that he had no recollection of claimant calling in and reporting any physical problem, injury, occurrence of any kind or requesting to be rerouted home because of any physical problem. Respondent’s safety director, Mr. Scarbrough, testified that the first time claimant ever reported any injury or accident was on July 26, 1993. At that time, claimant had telephoned from Mississippi saying that two doctors had evaluated him and he had been diagnosed as having a hernia. It is clear that claimant did not give the appropriate notice. [10] Claimant also failed to prove that he require the attendance of a physician within 72 hours after the occurrence. Even if the old case law which indicates that claimant need not prove that he actually was attended by a physician within 72 hours of the injury is still applicable, claimant must have physical distress following the occurrence such that to require the attendance of a physician within 72 hours. It is readily apparent from that record that claimant’s physical distress was not significant enough for him to seek medical attention within 72 hours of the occurrence. In fact, after the alleged incident, claimant continued with his regular duties driving for respondent. Claimant did not seek emergency room treatment or treatment from a walk-in clinic. In fact, it appears that claimant had no problems performing any of his duties and felt no need to seek care between July 10, 1993 and July 24, 1993. Incidentally, when claimant did seek treatment, he did not relate any type of history of a work-related incident being the cause of his problem. In fact, claimant was being treated primarily for a urinary tract infection. Only when claimant was referred for an evaluation to see if there was a ventral hernia did claimant come up with a history of an injury at work. [11] The aforementioned indicates that claimant did not prove by a preponderance of the credible evidence that he sustained a work-related hernia. Claimant did not meet any of the five requirements of the hernia statute. Therefore, as stated, we reverse the decision of the Administrative Law Judge. [12] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman, ALLYN C. TATUM, Commissioner

[13] Commissioner Humphrey dissents.