WRIGHT v. NORTH CENTRAL RESTORATION, 2001 AWCC 179


CLAIM NOS. F002353 F004391

MICHAEL WRIGHT, EMPLOYEE, CLAIMANT v. NORTH CENTRAL RESTORATION, INC., EMPLOYER, RESPONDENT, MICHIGAN MUTUAL INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 13, 2001

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

Claimant represented by HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.

Respondent represented by HONORABLE JOHN DAVIS, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed as Modified.

OPINION AND ORDER
Respondents appealed the decision of the Administrative Law Judge, filed on October 24, 2000, that claimant proved that he sustained a compensable injury, in the form of an incisional hernia, while employed by respondent. After our de novo review of the entire record, we affirm the decision of the Administrative Law Judge that claimant sustained a compensable injury, alhtough we limit the award of temporary total disability to start February 25, and to end on June 15, 2000.

Claimant underwent an appendectomy 34 years prior to his current injury. Claimant was employed as a house restorer on February 2, 2000, when he was moving a 500-600 pound steel bathtub on a dolly and had to drop it due to the weight and experienced burning and ripping pain at the site of his appendectomy scar. There was a protrusion at the site. He reported this incident and was told to wait and see. He continued to experience pain and burning. On February 25, 2000, he was unable to lift a paint can due to severe pain, and decided to go to the doctor. He called his employer from the hospital. On April 5, 2000, claimant underwent surgery by Dr. Buchman who discovered and repaired an incarcerated incisional hernia at the sight of the appendectomy scar. The debate here appears to be whether an incisional hernia is a specific incident injury when physicians ascribe the cause to “repeated” stresses on the scar tissue.

The single piece of evidence at issue is a letter from Dr. Buchman which states that claimant’s hernia occurred in his old appendix scar. It occurred because of repeated stresses to the appendectomy scar due to repeated straining with heavy loads. These work related activities clearly account for more than 50% of the cause of this hernia. Objective findings would consist of incarceration of the hernia.

While Dr. Buchman’s explanation appears to support the argument that this is a gradual onset injury, the fact remains that claimant was asymptomatic before lifting the bathtub while performing his job, and suffered pain and a protrusion which caused him to drop the heavy bathtub. Furthermore, the constancy of his discomfort from this date up until the date of his surgery gives rise to the unassailable inference that the bathtub incident caused the hernia. Had claimant not had the appendectomy, or if he had not engaged in activities which put repeated strain on his appendectomy scar, he may not have had the current injury. Had he not been moving the bathtub, claimant would not have had the hernia at that time.

In regard to respondents’ objection to the award of temporary total disability benefits, we agree that claimant testified that his “hernia was just fine by” the middle of June, when he tried to work but could not due to his back. Claimant’s hernia was repaired on April 5, 2000, and Dr. Buchman wrote on April 13, 2000, that claimant would return in two weeks to obtain a note to return to work one month post operatively, which would be May 5, 2000. We hereby limit claimant’s entitlement to temporary total disability benefits to the period between February 25 when he sought medical treatment and stopped working, to June 15 (the middle of June), when claimant stated that his hernia was fine but his back was limiting his ability to work.

After our de novo review of the evidence, we find that claimant has proven by a preponderance of the evidence that he sustained a compensable incisional hernia. We hereby affirm the Administrative Law Judge’s decision and award temporary total disability benefits to be paid through June 15, 2000.

All accrued benefits shall be paid in a lump sum without a 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).

For prevailing, in part, on this appeal before the Full Commission, 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(b) (Repl. 1996).

IT IS SO ORDERED.

_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ MIKE WILSON, Commissioner

Commission Turner concurs in part and dissents in part.

While I concur with the finding in the opinion of the majority that claimant proved that he sustained a compensable injury, I must respectfully dissent from the modification of the Administrative Law Judge’s award of benefits for temporary total disability.

______________________________ SHELBY W. TURNER, Commissioner