CLAIM NO. E602199
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 6, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by CURTIS NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above-captioned case on August 21, 1996, finding that claimant had proven, by a preponderance of the credible evidence, that he sustained a compensable work-related hernia on February 12, 1996, and was entitled to “all benefits set forth in Ark. Code Ann. § 11-9-523(b)(1).” Although not enumerated as a finding of fact, the Administrative Law Judge’s opinion and order also directs respondents to pay “26 weeks of temporary total disability as provided for in Ark. Code Ann. § 11-9-523 (b)(1).”
[7] Claimant further testified that, following the above-described incident, he developed a “bulge” and “pushed this back in.” After stopping work long enough to dissipate the “bulge,” claimant returned to and finished his task of stacking copy paper. [8] Although claimant did not immediately report his injury, he testified that on February 14, 1996, he did notify Cheryl Rives, respondent employer’s workers’ compensation coordinator. Claimant also testified that, prior to reporting his injury to Ms. Rives, he informed his own immediate supervisor, Mr. Robert Rives (Cheryl Rives’ husband). Claimant obtained a doctors’ appointment the same day he notified Ms. Rives of his injury, and consulted Dr. Jerry L. Hitt on February 16, 1996. Dr. Hitt diagnosed a left inguinal hernia at that time. Regarding the timing of his appointment with Dr. Hitt, claimant provided the following exchange of testimony:That day we had deliveries of copy paper and liquid soap, which was in — the soap was in a 55 gallon barrel. We delivered that to one storeroom, and then we delivered — or I — actually, I was stacking the copy paper when we were delivering copy paper to store to a different storeroom. Clara Smith was helping deliver the paper. I was stacking it in the storeroom . . . I was stacking it approximately head height, and I had a sharp pain in my left groin.
Q. And you didn’t request that an appointment be made on the 14th or have to see the doctor on the 14th, did you?
A. I made the request to get an appointment with the doctor on whatever day I could.
Q. And you got it on the 16th?
A. Yes, sir.
[9] With Dr. Hitt’s consent, claimant deferred surgical repair of his hernia until after the end of the school year. Dr. Hitt also permitted claimant to return to work, and claimant stated during the hearing below that he has not missed any work due to his injury of February 12, 1996. [10] Before a hernia will be deemed compensable, a claimant must satisfy the requirements of Ark. Code Ann. § 11-9-523 (a)(1)-(5) (Repl. 1996). Thus, claimant must demonstrate:Q. And that was alright with you, wasn’t it?
A. The best I could do without going to the emergency.
[11] Our review of the record persuades us to specifically find that claimant has satisfied each of the foregoing provisions. [12] We note first of all claimant’s credible testimony that he was engaged in stacking copy paper when he felt a sharp pain “in his left groin.” Claimant also explained in a recorded statement that the boxes of copy paper weighed approximately forty to fifty pounds. We accordingly find that the force and effort needed to stack these boxes is sufficient to satisfy the “sudden effort” requirement. [13] While claimant has not specifically described his pain as “severe,” we are nevertheless convinced that he has satisfied this portion of the statute as well. Throughout his testimony claimant has used the words “sharp” and “burning” to describe the pain associated with the incident of February 12, 1996. He has also described the sensation of a “tear”:(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.
[14] We specifically find claimant’s testimony to be credible in its entirety, and from the same, we further find that claimant has sufficiently described a “severe pain in the hernial region.” In addition, claimant’s cessation of his work activities and improvised repair of the “bulge” persuade us to find that his pain and the effects of his injury caused him to “cease work immediately.” [15] Claimant testified that his injury occurred at approximately 10:00 A.M. on February 12, 1996. Ms. Rives’ testimony indicates that claimant reported his injury to her sometime “in the morning” on February 14, 1996. We thus find that claimant gave notice of his injury within 48 hours of the occurrence. [16] Finally, although claimant did not demand immediate medical attention or travel to the emergency room following his injury, he did seek to obtain the first available appointment to consult his chosen physician. Claimant made his appointment with Dr. Hitt on February 14, 1996, and visited Dr. Hitt on February 16. In light of claimant’s efforts to obtain a medical evaluation following his injury, and considering his description of the physical effects of his injury, we find that there was a need to consult a physician within seventy-two hours of the occurrence of claimant’s hernia. Cagle Fabricating Steel,Inc. v. Patterson, 309 Ark. 365, 830 S.W.2d 857 (1992). [17] Based on the foregoing, we specifically find that claimant has satisfied the provisions of Ark. Code Ann. § 11-9-523I just — that’s what it was, yes. That’s what it seemed to be is a tear and a sharp, deep pain in that area.
(Repl. 1996) relating to hernia injuries, and accordingly affirm the Administrative Law Judge’s finding that claimant sustained a compensable hernia on February 12, 1996. [18] In reaching this conclusion, we are not unaware of the testimony of two of claimant’s co-workers, Ms. Marilyn Vaughn and Ms. Clara Smith, neither of whom could relate any recollection of claimant sustaining an injury on February 12, 1996. However, neither witness appears to have had an opportunity to observe claimant during the entire course of events leading up to and surrounding his injury, and Ms. Vaughn testified that claimant had “never complained to me about anything.” In our opinion, claimant’s account of his injury suffers no diminution from the testimony of either Ms. Vaughn or Ms. Smith. [19] We look now to the issue of temporary total disability benefits. In light of claimant’s own statement that he has missed no work as a result of his injury, we have no choice but to vacate and set aside that portion of the Administrative Law Judge’s opinion and order which purports to award claimant twenty-six weeks of temporary total disability benefits. Should claimant at some point in the future incur a period of disability relating to his compensable hernia, e.g., following surgical repair, he will, of course, be entitled at that time to temporary total disability benefits. [20] Finally, we note that claimant has asked us to pass upon the constitutionality of Ark. Code Ann. § 11-9-715 (b) (Repl. 1996), which governs and limits awards of attorney’s fees for those claimants who prevail on appeal. Claimant contends that this statute violates his Sixth Amendment right to counsel. We remind counsel for claimant that the Sixth Amendment to the United States Constitution concerns the rights of the accused to have assistance of counsel “in all criminal prosecutions.” Because of the civil nature of this case, we cannot find that claimant’s Sixth Amendment rights have been violated by Ark. Code Ann. § 11-9-715 (b) (Repl. 1996). [21] Based on our de novo review of the entire record, and for the reasons discussed herein, we find that claimant has proven, by a preponderance of the credible evidence, that he sustained a compensable hernia on February 12, 1996. We also find that the Administrative Law Judge’s award of twenty-six weeks of temporary total disability benefits is premature in that claimant has yet to suffer a period of disability related to his compensable hernia and, without diminishing claimant’s entitlement to such benefits for any future period of disability related to his compensable hernia, we vacate and set aside that portion of the Administrative Law Judge’s opinion and order which awards indemnity benefits. Finally, we decline claimant’s invitation to find Ark. Code Ann. § 11-9-715 (b) (Repl. 1996) unconstitutional. [22] 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 (Repl. 1996). [23] For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 as provided by Ark. Code Ann. § 11-9-715 (b) (Repl. 1996). [24] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[25] Commissioner Wilson concurs in part and dissents in part.[26] CONCURRING AND DISSENTING OPINION
[27] I respectfully dissent from the majority’s opinion finding that claimant has proven by a preponderance of the evidence that he sustained a work-related hernia on February 12, 1996. In my opinion, claimant has failed to satisfy the five requirements of a compensable injury.