LINDSEY v. MIN-ARK PALLET

An Administrative Law Judge entered an opinion and order in the above-captioned case on November 3, 1995, finding that claimant had failed to prove that he sustained a compensable hernia on September 23, 1994. Claimant now appeals from that opinion and order. 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 did sustain a compensable hernia on September 23, 1994. The decision of the Administrative Law Judge must therefore be reversed.

Claimant worked for respondent as a pallet-repairer. As such, he was responsible for receiving broken or worn shipping pallets, lifting and moving them to his work station, and repairing or reconstructing them depend, on their condition. On September 23, 1994 (Friday), claimant "reached up and pulled a pallet down and I felt a severe burning pain in my side, and I thought I had appendicitis or something going wrong with my side." At the onset of this pain, claimant stopped working and went to the office of Maybelle Minick in order to call his mother and see about obtaining a doctor's appointment. He testified that he showed Ms. Minick where he was hurting, and that the two of them thought it might be appendicitis. Ms. Minick served as respondent employer's secretary, and claimant's mother, whose testimony we accept as credible, testified that Ms. Minick's husband was a part owner of the business.

Claimant's mother set up a doctor's appointment for him that afternoon, but testified that respondent employer needed him to get an order out that day. The appointment was thus rescheduled for the following Monday, September 26, 1994. Claimant explained that he finished his work day by performing his task slowly with occasional breaks.

Claimant thereafter presented to the Family Clinic as scheduled, and presented with "right lower abdominal pain." After a long course of diagnostic efforts, Dr. Charles Nash performed an exploratory laparoscopy on November 9, 1994, which revealed the presence of an inguinal hernia. Dr. Nash repaired the hernia at that time.

Because claimant contends that he sustained an injury after July 1, 1993, the provisions of Act 796 of 1993 are controlling.

We note first of all that the Administrative Law Judge found that claimant failed to prove a compensable hernia owing to a lack of evidence that his injury was the "major cause" of his resulting disability or need for treatment. It appears that the Administrative Law Judge considered Ark. Code Ann. § 11-9-102(5)(A)(v) (Repl. 1996), pertaining to hernias, as a portion of the "gradual injury" provision of Ark. Code Ann. § 11-9-102(5)(A)(ii)(a)-(c) (Repl. 1996). In their brief, respondents (not surprisingly) accept this interpretation by essentially repeating the Administrative Law Judge's own statutory citations.

We feel compelled to point out, for purposes of clarification, that this is not a proper case for an application of the "major cause" evidentiary requirement found in Ark. Code Ann. §§ 11-9-102(5)(E)(ii) (Repl. 1996) and 11-9-102(5)(F)(ii) (Repl. 1996). The former provision requires a "major cause" showing in the case of injuries that do not occur as the result of a specific incident identifiable by time and place of occurrence (see Ark. Code Ann. § 11-9-102(5)(A)(ii)(a)-(c)), and the latter imposes the same requirement in cases where permanent benefits are at issue. (Ark. Code Ann. § 11-9-114 (Repl. 1996) also imposes the "major cause" burden upon claimants who seek workers' compensation benefits for cardiovascular injuries or diseases.)

Ark. Code Ann. §§ 11-9-102(5)(A) (Repl. 1996) and 11-9-102(5)(A)(v) (Repl. 1996) provide that "Compensable injury means. . . A hernia as set out in § 11-9-523." While the enumeration of the various subsections within Ark. Code Ann. 11-9-102(5)(A) can certainly produce a confusing visual appearance, a careful examination of subsection (5)(A)(v) reveals that it is not included within the "gradual injury" provisions found in subsections (a)-(c) of Ark. Code Ann. § 11-9-102(5)(A)(ii) (Repl. 1996) — which are made subject to the "major cause" evidentiary requirement by Ark. Code Ann. § 11-9-102(5)(E)(ii) (Repl. 1996).

Instead, the "hernia" provision (subsection (5)(A)(v)) is the last of five broader subsections that comprise Ark. Code Ann. § 11-9-102(5)(A)(i)-(v). These subsections are the five categories of compensable injuries recognized by Arkansas' Workers' Compensation Law, and of them, only subsections (ii) and (iv) are made subject to the "major cause" evidentiary burden. (See Ark. Code Ann. §§ 11-9-102(5)(E)(ii) (Repl. 1996) and 11-9-114 (Repl. 1996.)) Accordingly, it is not necessary for claimant to show that his compensable injury was the cause of his resulting disability or need for treatment.

Respondents contend on appeal that claimant has not satisfied the requirements of Ark. Code Ann. § 11-9-523 (Repl. 1996), the "hernia statute," which are:

(a)(1) 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 hours after the occurrence.

We specifically find that claimant has proven, by a preponderance of the credible evidence, that he has met the requirements of Ark. Code Ann. § 11-9-523 (Repl. 1996).

Claimant's testimony, which we find to be credible, established that he "felt a burning pain" in his side when he attempted to lift a pallet in order to transport it to his work area. From this testimony, we find that the occurrence of claimant's hernia "immediately followed as the result of a sudden effort." Claimant has thus satisfied subsection (a)(1) set out above.

Claimant also testified that the pain "almost brought me to my knees," and he stopped working upon its onset in order to call his mother. We thus find that the requirements contained in subsections (a)(2) and (a)(3), e.g., that claimant must have experienced "severe pain" and immediately stopped work," have likewise been met. In addition, we find that claimant satisfied the notice requirement of subsection (a)(4) by discussing his problem with a coworker, who was the wife of one of the company owners, within minutes of the onset of pain.

Finally, claimant phoned his mother only a short time after his pain began to see if she could obtain an appointment for him to see a physician. As it turned out, he was unable to seek medical care due to his employer's output needs for that particular day. However, it is not necessary for claimant to have actually been treated by a physician within seventy-two hours in order to satisfy subsection (a)(5). Instead, it is sufficient that his physical distress simply required the attendance of a physician within that amount of time. Cagle Fabricating Steel, Inc. v. Patterson, 42 Ark. App. 168, 856 S.W.2d 30 (1993) (citingCagle Fabricating Steel, Inc. v. Patterson, 36 Ark. App. 49, 819 S.W.2d 14 (1991); rev'd on other grounds at 309 Ark. 365, 830 S.W.2d 857 (1992)).

Because claimant presented credible testimony that his pain was severe enough that he ceased working after its onset and then sought medical attention, we find that his "physical distress . . . was such as to require the attendance of a licensed physician within seventy-two hours after the occurrence," and that subsection (a)(5) has therefore been satisfied.

Respondents also assert that "there is no medical opinion that the hernia was caused by lifting pallets," and thus contend on appeal that claimant has failed to demonstrate that his inguinal hernia was causally connected to his employment. (Emphasis in original). Concerning this same issue, respondents further contend that a "wet-bike" accident that claimant was involved in during the Labor Day weekend in September, 1994, may be at least partly responsible for his hernia.

We have said before that a medical opinion addressing compensability is not necessary in all cases where it is at issue. Instead, Act 796 only requires that medical opinions which are offered be stated within a reasonable degree of medical certainty. See Keith Crawford v. Pace Industries, Full Workers' Compensation Commission, Opinion Filed August 10, 1995 (Claim No. E318131) and Ark. Code Ann. § 11-9-102(16) (Repl. 1996). It is only necessary that a claimant establish an injury with "medical evidence, supported by objective findings." Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996). In the instant case, the medical evidence clearly establishes the presence of an objective finding in the form of an inguinal hernia discovered on November 9, 1994. We thus find that claimant has established his compensable injury with medical evidence supported by objective findings.

With regard to the "wet-bike" accident which respondents imply may be responsible for claimant's hernia, we note that when claimant presented to Dr. J. Steinseik of the Family Clinic on September 8, 1994 (following the accident), his complaints were of pain in the right trapezius. There is no mention of abdominal discomfort in claimant's medical records until September 26, 1994 — three days after the pain-inducing episode at his place of employment. Accordingly, we are not persuaded that claimant's Labor Day accident played any causative role in the development of his inguinal hernia.

Based on claimant's credible testimony of when and how his pain began and his reaction thereto, as well as the lack of medical evidence indicating the presence of any hernial complaints or symptoms contemporaneous with the Labor Day mishap, we specifically find that claimant's inguinal hernia arose during the course of his employment duties and is causally related to the same.

Respondents have pointed out that some of claimant's medical records indicate that his abdominal pain began prior to September 23, 1994, and suggest that his injury existed prior to that time. However, we note that the record establishes that claimant possesses a learning disability, and his mother testified that this disability inhibits his ability to accurately recall dates. The fact that claimant is a poor historian does not defeat his claim or impugn his credibility in the instant case.

Based on our de novo review of the entire record, and for the reasons discussed herein, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he sustained a compensable hernia on September 23, 1994, and is therefore entitled to all reasonable and necessary medical expenses associated therewith, and temporary total disability benefits from November 9, 1994 (the date of his operation), until he was released to return to work. The decision of the Administrative Law Judge must therefore be, and hereby is, reversed.

All accrued benefits shall be paid in a lump sum without discount and with interest thereon on 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 as provided by Ark. Code Ann. § 11-9-715(b) (Rep. 1996).

IT IS SO ORDERED.