GRIGG v. SWIFT-ECKRICH

An Administrative Law Judge entered an opinion and order in the above-captioned claim on February 18, 1997, finding that claimant sustained a compensable injury in the form of a work-related hernia on October 11, 1994, and was entitled to an award of temporary total disability benefits from February 23, 1995, through April 13, 1995.

Respondents now appeal from that opinion and order, contending that claimant has failed to establish each of the elements required by Ark. Code Ann. § 11-9-523(a) (Repl. 1996), which pertains to hernia injuries.

Following our de novo review of the entire record, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he sustained a compensable injury in the form of a work-related hernia on October 11, 1994, and is entitled to an award of temporary total disability benefits from February 23, 1995, through April 13, 1995. The decision of the Administrative Law Judge is therefore affirmed.

Ark. Code Ann. § 11-9-523(a) (Repl. 1996) sets out the following requirements for proving a compensable hernia:

(a) In all cases of claims for hernia, it shall be shown to the satisfaction of the Workers' Compensation Commission:

(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.

At the time of his injury, claimant worked as a "hock cutter," a task which required him to operate a machine in order to remove the "hocks" from large turkeys known as "big counter toms." On average, a big counter tom weighed about 33 pounds, and was suspended by the neck as it approached claimant's work station. Claimant would then maneuver the hocks of each bird into the cutting machine and press a pedal to activate the blade. It appears from the record that claimant was able to perform this task at least semi-seated, and he did not have to carry the entire weight of the bird when placing the hocks in the machine.

On October 11, 1994, claimant explained that he "got to hurting in the groin," and described the sensation as a "real sharp pain. Just hurt real bad. Just more or less like you . . . cut your hand or your finger with a knife or something like that." As a result of this pain, claimant "had to let some birds go by because there was another guy there . . . I would have to, just kind of hold it for . . . two or three seconds."

Though claimant did not immediately report his injury (which occurred "right close to the end of the shift"), he did inform the plant nurse of its occurrence at approximately 1:30 on October 13, 1994. The following day, claimant consulted Dr. Hilton Lacy, who diagnosed a right inguinal hernia and recommended surgical repair. Dr. Lacy allowed claimant to return to work, but imposed a twenty-five pound lifting restriction. While claimant did admit to suffering a previous hernia which required surgical intervention, we note that Dr. William V. Fairchild examined him as late as October 3, 1994, and found claimant to be "asymptomatic and he had no evidence of a right inguinal hernia."

Respondents concede in their brief that claimant has met requirements (4) and (5) of the hernia statute. Because they are thus unchallenged on appeal, we affirm and adopt the findings and reasoning of the Administrative Law Judge as they relate to the requirements of Ark. Code Ann. §§ 11-9-523(a)(4) and (5) (Repl. 1996). In addition, we specifically find that claimant has met each of the remaining requirements set out in Ark. Code Ann. § 11-9-523(a) (Repl. 1996).

First, while he did not have to bear the entire weight of each bird to perform his task, claimant pointed out that his line ran "about 46 birds a minute on them big ones. And there's four cutters." With each cutter thus responsible for nearly twelve birds per minute, or almost one every five seconds, we are persuaded that claimant's individual hock-cutting efforts could have been nothing less than "sudden" in order to maintain the required pace. Accordingly, we find that claimant has shown, to the satisfaction of this Commission, that his hernia "immediately followed as the result of a sudden effort."

Likewise, given claimant's credible testimony regarding a "real sharp pain" in his groin, we further find that claimant has shown, to the satisfaction of this Commission, that he experienced a "severe pain in the hernial region."

With regard to the third requirement, respondents assert that "there is not sufficient evidence to prove that claimant ever ceased working." We note that it is not necessary for claimant to demonstrate an "instantaneous and continual cessation of work," nor is he required to satisfy any "mathematical formulas" or show that he ceased working for any particular length of time. Osceola Foods, Inc. v. Andrew, 14 Ark. App. 95, 685 S.W.2d 813 (1985). Instead, it is sufficient if the evidence shows "that the cessation from work became necessary soon enough after the trauma to establish that there was a causal connection under the circumstances of the case."

Because claimant has presented credible testimony regarding a "sharp" pain in his groin which caused him to "let some birds go by," we find that claimant has shown, to the satisfaction of this Commission, that his pain caused him to "cease work immediately."

As discussed above, we specifically find that claimant has satisfied each of the requirements of Ark. Code Ann. § 11-9-523(a) (Repl. 1996), and has thus proven, by a preponderance of the credible evidence, that he sustained a compensable injury in the form of a work-related hernia on October 11, 1994.

Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Arkansas State Highway and Transp. Dep't. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Claimant entered a post-surgical healing period on February 23, 1995. We note also that claimant agreed on direct examination that he returned to work some six weeks later, on April 13, 1995. While claimant's healing period may not have completely ended by that time, he no longer suffered a total incapacity to earn wages. Accordingly, based on claimant's credible testimony regarding the length of time he remained off work while within his healing period, we specifically find that he is entitled to an award of temporary total disability benefits from February 23, 1995, through April 13, 1995.

Based on our de novo review of the entire record, and for the reasons stated herein, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he sustained a compensable injury on October 11, 1994, in the form of a work-related hernia, and that he is entitled to an award of temporary total disability benefits from February 23, 1995, through April 13, 1995. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed.

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).

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 pursuant to Ark. Code Ann. 11-9-715(b) (Repl. 1996).

IT IS SO ORDERED.

[20] Commissioner Wilson dissents.

I must respectfully dissent from the majority opinion finding that claimant sustained a compensable hernia on October 11, 1994. Based upon my de novo review of the entire record, I find that claimant has failed to meet his burden of proof.

Claimant contends that on October 11, 1994, he sustained a hernia during the course and scope of his employment while performing his job duties as a hock cutter. The record reveals that in order to cut the hocks off of the turkeys claimant would have to maneuver a thirty-three pound turkey hanging on shackles onto the cutter so that a pedal could be pushed to cut the hock off.

In my opinion, I find that the very first requirement "that the occurrence of the hernia immediately followed as a result of sudden effort, severe strain, or the application of force directly to the abdominal wall" has not been proven. The evidence reveals that claimant was performing the same job he has performed for some period of time. Claimant testified that he did not have to carry the birds or otherwise lift the entire thirty-three pounds of the bird in order to perform his job duties of cutting off hocks. Claimant merely had to swing or maneuver the birds onto the hock cutter from the position of the birds hanging on shackles. I find nothing in this action which would require sudden effort, severe strain, or application of force directly to the abdominal wall. I cannot derive from the record that claimant's job required severe strain in order to perform. Nor can I find that a sudden effort was exerted by claimant in order to perform his job. Finally, there is nothing in the record to indicate that force was directly applied to claimant's abdominal wall. Claimant merely testified that as he was performing his job he "got hurting down there in my groin." It is not enough for a claimant to testify that pain began in the hernial region in order to prove the compensability of a hernia. The hernia statute clearly requires that the five elements set forth above must be proven. In my opinion, claimant has failed to prove the first element. Therefore, I respectfully dissent from the majority opinion.

MIKE WILSON, Commissioner