Opinion
CLAIM NO. E904401.
OPINION FILED JUNE 9, 2000.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DONALD S. RYAN, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Reversed.
OPINION AND ORDER
The respondents appeal to the Full Workers' Compensation Commission an administrative law judge's opinion filed October 5, 1999. The administrative law judge found that the claimant sustained a compensable inguinal hernia as a result of lifting a beer keg on April 5, 1999. After de novo review of the entire record, the Full Commission finds that the claimant has not satisfied the provisions of Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-523 (a). Therefore, we reverse the opinion of the administrative law judge.
I. HISTORY
Daniel Kovach, age 22, became employed with Flying Saucer Draught Emporium in about March, 1999. His work for the respondent-employer included lifting and moving beer kegs, which the claimant estimated as weighing 200 pounds each. The parties stipulated that the employer-employee relationship existed on April 5, 1999. Kovach worked the "lunch shift" on that date from approximately 9:30 a.m until 3:00 p.m. The claimant testified:
Q. Tell me what happened to you later that afternoon while you were at work.
A. It was getting close to the 3:00 o'clock mark and I had asked T.K., who was the manager at the time, if it was okay if I left, since it was getting slow closer to the afternoon, and he told me yes. He asked me to do one thing before I left, and it was to change a beer keg. And I said "Okay."
Q. And then what did that involve in this particular keg?
A. The keg was on the far end. It was a Bud Lite keg, so it was on the far end, right-hand side of the beer room closet refrigerator. . . .I had to move a couple of kegs to get to the Bud Lite keg. And I was moving one keg to get to the Bud Lite keg, and did that. In doing so, you have to lift it and pull it, and it was a full keg of beer that I did so.
Q. And what happened?
A. When I did that, I felt something in my lower stomach similar to pulling a muscle in your leg.
***
Q. And you're indicating for the record you grabbed it with two hands and pulled backwards?
A. Two hands to pull up and get it up over that inch thick mat.
Q. When you felt what you've described, what did you do then?
A. At that time I continued to put the, there's a spout. And once I did that, that was the lifting part of it, that was done. And there's the full keg that I was getting to that was there, and I just reconnected the spout. I had an empty keg and I left it there and that was it.
***
Q. And then what did you do, just connect it up?
A. Yes, sir.
Q. What did you do then? About what time of day was it then?
A. This was closer to 3:00 o'clock. It was 2:00, 2:30, 3:00 or something, I don't have the exact minute.
Q. Did you go check out then?
A. At that time I did. I advised T.K. that I was done and he told me I was free to go.
The respondents' counsel queried the claimant:
Q. And between 3:00 and 6:00 you didn't think anything of it because you weren't having any pain or discomfort, correct?
A. The type of pain or discomfort. You're missing part of that. It was uncomfortable. It wasn't a stabbing pain, but it was uncomfortable enough to know there was something the matter, but nothing, it wasn't harsh enough. . .The best I can explain it is I have broken an ankle before and I've pulled muscles playing sports, and it wasn't a pain, it wasn't an obvious, you know, "I broke my ankle, I need to report something."
***
Q. Did you have severe pain in the hernia region after this strain?
A. There was discomfort.
Q. So that would be no?
A. Severe pain, no.
Several hours after completing his shift and returning home, the claimant testified, he noticed a large lump "in my lower right pelvis." Later that evening, another manager called and asked the claimant if he could come to work. "I let her know that I possibly had hurt myself," he stated. " I noticed the lump and I let her know that. . . .She told me she'd have the paperwork ready that I needed, just to come in and see her."
The claimant reported to work the next morning, April 6, 1999, and testified that T.K. was aware of what had happened and told him to go to a doctor. The claimant presented on his own to Dr. David L. Hicks on April 6, 1999:
Patient presents c/o possible R sided hernia. He relates that he began having symptoms after starting employment with some heavy lifting. His supervisor had asked him to come in to have it checked without filing WC. He states he is asymptomatic.
Dr. Hicks assessed right inguinal hernia and recommended consultation with Dr. Paul Osteen.
The claimant submitted a WCC Form N on April 7, 1999, which the claimant testified he filled out accurately and truthfully:
I was lifting and moving kegs of beer to organize an area which was a bit cluttered and while lifting one I thought I felt a pull in my lower stomach, but it did not hurt so I did not report it right away. Until after I got home and realized my lower pelvis was swollen that I had done something. The following day I went to the doctor and he found the swelling to be a hernia.
Dr. Osteen subsequently diagnosed right inguinal hernia and performed "right inguinal hernia with mesh" surgery on May 21, 1999.
Dr. Hicks corresponded with Donald Ryan, attorney at law, on May 26, 1999:
Mr. Kovach is a 21-year-old white male whom I have seen on one occasion. He presented on April 6, 1999 complaining of possible right sided hernia. He states his symptoms began after starting employment at Flying Saucer Draught Emporium. He had noted swelling and bulging but had not had any pain. His physical exam was consistent with easily reducible right inguinal hernia which was asymptomatic.
At the time of his presentation apparently his supervisor had asked him to come in and have it checked without filing a worker's comp claim. I advised him to discuss the situation with his supervisor. I recommended surgical consultation with Dr. Paul Osteen. Since he was asymptomatic, I did not recommend any restrictions at his work place.
Dr. Hicks again noted on June 14, 1999:
I spoke with the pt. today regarding his hernia. When we had originally spoken in early April apparently there was some miscommunication. I had asked him if he was having any pain or discomfort from his hernia and he related that he was not. However, he thought I was asking if he was having any severe pain requiring pain medication. He states he was symptomatic with discomfort and pain with Valsalva. For this reason, I believe I believe (sic) it was appropriate for him to be restricted from any lifting prior to his surgical repair which has been accomplished successfully and we will send letter to his attorney to this affect (sic).
Mr. Kovach contended that he sustained a compensable inguinal hernia on April 5, 1999. The claimant contended entitlement to a period of temporary total disability compensation, reasonable and necessary medical treatment, and an attorney's fee. The respondents controverted the entire claim, contending that the claimant could not satisfy the provisions of Ark. Code Ann. § 11-9-523. After a hearing before the Commission, the administrative law judge determined that the claimant did meet the statutory requirements for establishing a compensable hernia injury. The administrative law judge directed the respondents to pay temporary total disability compensation, reasonable and necessary medical treatment, and an attorney's fee. The respondents appeal to the Full Commission.
II. ADJUDICATION
Ark. Code Ann. § 11-9-523(a) (Supp. 1999) provides that in all cases for claims of 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.
In the present matter, the Full Commission first finds that the claimant did not satisfactorily show 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, as required by Ark. Code Ann. § 11-9-523(a)(1). The claimant went to work for the respondent-employer in March, 1999. The claimant testified that he felt a pull in his lower stomach while moving and lifting a beer keg on April 5, 1999. When the claimant first presented for medical treatment on April 6, 1999, however, Dr. Hicks recorded the following history: "He relates that he began having symptoms after starting his employment with some heavy lifting." The claimant had testified that his work for The Flying Saucer routinely included moving and lifting of 200 pound beer kegs. Further, Dr. Hicks later reported that the claimant's symptoms began "after starting employment at Flying Saucer Draught Emporium." Again, there is no mention or report of sudden effort, severe strain, or application of force directly to the abdominal wall. The dissent asserts that there was "a communication problem" between the claimant and Dr. Hicks. Yet we can find no evidence of record indicating that the treating physician and his patient miscommunicated regarding whether there was a specific lifting incident. The dissent notes that the claimant did report a "specific incident" on the WCC Form N; however, the claimant clearly indicated a "Date of Accident" of April 7, 1999, rather than April 5, 1999. Since the claimant was initially confused as to when his hernia occurred, we place greater weight on the consistent medical reports of his treating physician. These reports show that the claimant began experiencing hernia-related symptoms immediately after beginning employment with the respondents, and not on a specific date. Therefore, the preponderance of evidence in the present matter does not show that the claimant's hernia occurred immediately after the alleged moving and lifting incident on April 5, 1999. We thus find that the claimant has not proven the requirement of Ark. Code Ann. § 11-9-523(a). See, Cooper v. McBurney Corporation, Full Workers' Compensation Commission, Dec. 17, 1999 ( E804359).
The claimant has also not satisfactorily shown that there was severe pain in the hernial region, as he is required to show pursuant to Ark. Code Ann. § 11-9-523(a)(2). On April 5, 1999, the claimant testified, he "felt something in my lower stomach similar to pulling a muscle in your leg." He expressly denied experiencing severe pain. Dr. Hicks, the first treating physician, reported that the claimant was "asymptomatic." The claimant submitted a WCC Form N on April 7, 1999, writing, "I felt a pull in my lower stomach, but it did not hurt so I did not report it right away." Finally, Dr. Hicks subsequently informed the claimant's attorney, "He had noted swelling and bulging but had not had any pain. . . .Since he was asymptomatic, I did not recommend any restrictions at his work place."
Despite this evidence of record, the administrative law judge was satisfied that there was severe pain in the hernial region. The administrative law judge cited Darling Store Fixtures v. McDonald, 54 Ark. App. 60, 922 S.W.2d 748 (1996), where the Court of Appeals affirmed the Commission's finding of a compensable hernia injury. The claimant in McDonald had felt a "pain, stretching sensation, and burning in his left side" after lifting a heavy piece of equipment. The Court of Appeals affirmed the Commission's determination that there was "severe pain in the hernial region." The claimant in the present matter testified, "It wasn't a stabbing pain, but it was uncomfortable enough to know there was something the matter." Since the claimant inMcDonald had never felt "excruciating" pain, the administrative law judge in the present matter was satisfied that the claimant had proven the element of § 11-9-523(a)(2). We decline to extend the Court's holding in McDonald to the present matter to find that there was severe pain in the hernial region. On the contrary, the claimant's testimony and the medical records show that there was not severe pain in the hernial region; in fact, the preponderance of evidence before the Commission shows that the claimant felt no pain at all.
The dissent argues that the claimant should not be "penalized" due to "semantics" or the claimant's "high pain threshold." Again, Ark. Code Ann. § 11-9-523(a)(2) expressly requires that the claimant show that there was severe pain in the hernial region. At most, the instant claimant described "discomfort" after the alleged incident; the preponderance of medical evidence indicates that he felt no pain at all. The dissent notes the claimant's testimony that his "discomfort" was not like "a broken ankle." The dissent thus declares that the claimant must have a "high pain threshold." Since there is not a scintilla of evidence before the Commission that the claimant had a "high pain threshold", we must conclude that this ipse dixit assertion by the dissent is based on speculation and conjecture. Speculation and conjecture can never be substituted for credible evidence. Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 151 (1980).
Finally, the Full Commission is not satisfied that the pain caused the employee to cease work immediately, pursuant to Ark. Code Ann. § 11-9-522(a)(3). The administrative law judge was satisfied that the claimant had met the statutory requirement, because the claimant had "ceased work within minutes of completing the task that gives rise to the claim herein." The administrative law judge cited Osceola Foods, Inc. v. Andrew, 14 Ark. App. 95, 685 S.W.2d 813 (1985), where the Court of Appeals held that the question of whether an employee ceases work immediately cannot be determined by "mathematical formulas or measured by minutes or hours."
In the present matter, however, the claimant was working the "lunch shift" on April 5, 1999. Near the end of his scheduled shift, the claimant asked his manager if he could leave. The manager agreed and asked him to change a beer keg before he left. The claimant went to perform his last employment duty before going home for the day, changing a keg, and felt a pull in his lower stomach while doing so. After feeling the pull in his lower stomach, he reconnected a spout to the keg, left work because his shift was over, and went home. The preponderance of evidence indicates that the pull in his lower stomach did not cause the employee to cease work immediately. Therefore, the Full Commission finds that the claimant has not satisfactorily shown that the "pain" caused the employee to cease work immediately on April 5, 1999.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission finds that the claimant has not satisfied the provisions of Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-523(a). The Full Commission therefore reverses the administrative law judge's finding that the claimant sustained a compensable inguinal hernia as a result of lifting a beer keg on April 5, 1999. This claim is denied and dismissed.
IT IS SO ORDERED.
________________________________ ELDON F. COFFMAN, Chairman
________________________________ MIKE WILSON, Commissioner
DISSENTING OPINION
I must respectfully dissent from the majority opinion in this case. In my opinion, claimant has proved all elements of the statute governing hernias. Accordingly, I would affirm and adopt the administrative law judge's decision.
The majority opinion points out that Act 796 did not alter Ark. Code Ann. § 11-9-523 substantively, and I concur with this assessment. This observation is qualified, however, with what is tantamount to a death knell for any claim: The majority references the mandate of strict statutory construction. In theory, the rules of statutory construction serve as a useful interpretive tool. However, Judge Bird's concurring opinion inBeaver v. Benton County, 66 Ark. App. 153, 991 S.W.2d 618 (1999), articulates my concerns regarding the practical application of the strict construction directive:
While it is true that Act 796 of 1993 requires us to strictly construe its provisions, I do not believe that strict construction requires that the Act always be interpreted in a way that will most likely deny benefits. The term "strict construction" is a two-edged sword. The Act does not require that its terms be strictly construed only against the employee. Arkansas Code Annotated section 11-9-101 (Repl. 1996) states that the purpose of the workers' compensation law is to provide benefits "to all legitimately injured workers who suffer an injury or disease arising out of and in the course of their employment. . . ."
Turning to the merits of claimant's claim, the majority finds that claimant failed to show that the hernia occurred following the lifting incident on April 5, 1999. In my opinion, the WCC Form AR-N completed by claimant on April 7, 1999, supports his claim. However, the majority is not persuaded, instead choosing to characterize claimant as "confused" with respect to the date of the lifting incident. I cannot agree. When the AR-N is considered as a whole, it is apparent that claimant simply made a mistake when he furnished an injury date of April 7, 1999 on the AR-N. The form indicated that claimant sustained an injury between 2:30 and 2:40 p.m. He wrote that: "I was lifting and moving kegs of beer to organize an area which was a bit cluttered and while I was lifting one I thought I felt a pull in my lower stomach. . . ." The AR-N further reflects that claimant reported the injury on April 5, 1999, at 7:30. Moreover, his lack of confusion is bolstered by the following statement, which also appeared on the AR-N: "I did not report it right away. . . . The following day I went to the doctor and he found the swelling to be a hernia." The evidence showed that claimant initially consulted Dr. Hicks on April 6, 1999. Also, his hearing testimony reflected that the injury occurred on April 5, 1999. Claimant stated that on the evening of the accident, he reported the occurrence to "Mr. T.K.," a manager. Claimant inquired about completing the proper paperwork, and he was instructed that he must first obtain a diagnosis. In my opinion, the AR-N supports a finding that claimant sustained a work-related accident on April 5, 1999.
To support a determination that claimant failed to prove that the hernia occurred as a result of the lifting incident on April 5, 1999, the majority relies upon reports prepared by Dr. Hicks, reasoning that these documents fail to include a "specific lifting incident on a date certain." In my view, the AR-N completed by claimant on April 7, 1999, is entitled to greater weight. First, it was completed only two days after the occurrence. Moreover, the medical records show the existence of a communication problem between claimant and Dr. David Hicks. Claimant initially consulted Dr. Hicks on April 6, 1999. In the chart note for that date, Dr. Hicks reported that claimant was "asymptomatic." However, on June 14, 1999, claimant contacted his physician, and Dr. Hicks prepared an "interval note" for the chart documenting the phone conversation. According to the June note, claimant was experiencing pain and discomfort in April, but he did not desire pain medication. He believed that the purpose of Dr. Hicks' inquiry was to evaluate his need for medication. Claimant's explanation is entirely reasonable. Clearly, Dr. Hicks was satisfied as well for he drafted a letter of clarification on June 17, 1999. In his correspondence, he indicated that claimant was symptomatic on April 6, 1999. I would also point out that the chart notes prepared by Dr. Hicks are rather brief. In my opinion, claimant has demonstrated the requisite causal connection.
The majority concludes that claimant failed to prove the first statutory requirement. I disagree. Claimant stated that the injury occurred as he was lifting a two-hundred pound beer keg off of the ground. In this regard, he offered the following testimony on direct examination:
Q. Did you actually have to lift it off the ground?
A. There's about an inch thick mat on the floor to prevent slipping, and you have to get it up high enough, so it takes a pretty good motion to get a full keg up and then to move it back so I could get to the keg that was closer to the wall.
Q. Are there handles on the keg to grab hold of?
A. There are handles on the keg.
Q. And you're indicating for the record that you grabbed with two hands and pulled backwards?
A. Two hands to pull up and get it up over that inch thick mat.
Based on claimant's credible account of the incident, it is my opinion that the hernia occurred as the result of a sudden effort. Claimant was required to lift a two-hundred pound keg. The force and effort required to complete this task satisfies the statute. It is difficult to fathom that any individual would leisurely lift an object weighing two-hundred pounds.
The majority also determines that claimant failed to show that he experienced severe pain in the hernial region. Claimant felt discomfort instantly upon lifting the keg. On cross-examination, claimant acknowledged that on the AR-N, he indicated that he failed to report the accident due to a lack of pain. However, he explained that he meant that "it wasn't an extreme pain." Claimant stated that he viewed the concept of pain comparatively, and the hernia was dissimilar to a bone fracture. When he returned home, he knew there was a problem because of the discomfort. However, claimant explained that it was not a "stabbing pain." He stated that he has experienced injuries form playing sports, and this was dissimilar. This is entirely consistent with the nature of claimant's misunderstanding with Dr. Hicks. It is apparent that his pain threshold is high.
Our courts have considered the evidence necessary to support a finding that claimant's pain was sufficient to satisfy the statute. In my opinion, Darling Store Fixtures v. McDonald, 54 Ark. App. 60, 922 S.W.2d 748 (1996), supports a determination that claimant experienced "severe pain." The majority reaches a contrary conclusion, stating that a finding that claimant satisfied "severe pain" element would represent an extension of the court's holding in McDonald. I disagree. In McDonald, the Court of Appeals rejected the argument advanced by respondents that claimant failed to satisfy the severe pain criterion. The Court of Appeals stated:
[Respondent] contends that [claimant] never experienced the "severe pain" required by the second criterion in the hernia statute. [Claimant] said he felt as if he had "stretched" something, pulled something, that he felt "a slight burning sensation," and a sticking or pinching feeling in certain positions. [Claimant] also testified that he had previously experienced a double hernia, and it had developed more slowly that the present one. He said he had a high pain threshold and never felt excruciating pain, even with a double hernia.
In Ayres v. Historic Preservation Associates, 24 Ark. App. 40, 747 S.W.2d 587 (1988), this court stated:
Appellant argues in his fourth point for reversal that the Commission erred in failing to find that he suffered "severe pain in the hernial region" as required by Ark. Code Ann. § 11-9-523 (a) (2) (1987). In a statement made to appellee Liberty Mutual Insurance Company's adjuster, appellant described his pain as "sudden" rather than "severe," a word choice the Commission apparently deemed significant. We do not put semantics before substance; it is clear that the Commission's reading of appellant's description of his pain as something less than severe is not supported by substantial evidence.
As McDonald illustrates, claimant's pain threshold is relevant to an inquiry with respect to whether he has satisfied the "severe pain" element. Claimant should not be penalized because of semantics or his high pain threshold.
The majority also determines that claimant failed to satisfy the work cessation requirement, stating that: "Therefore, the Full Commission finds that the claimant has not satisfactorily shown that the `pain' caused the employee to cease work immediately on April 5, 1999." Contrary to the majority's determination, I find that Osceola Foods, Inc. v. Andrew, 14 Ark. App. 95, 685 S.W.2d 813 (1985), supports a finding that claimant met this criterion. In Andrew the Court of Appeals stated:
We agree that due to possible uncertainty in determining which of several causes may have produced a hernia this requirement [work cessation], among others, was made because a dramatic demonstration of the causal connection between the work strain and the hernia leaves little doubt as to cause and effect. However, we do not agree that such causal connection can be dramatically manifested only by an instantaneous and continual cessation of work. Nor should the causal connection be determined by mathematical formulas or measured by minutes or hours. It should be based on evidence which satisfies the finder of fact that the cessation of work became necessary soon enough after the trauma to establish that there was a causal connection under the circumstances of the case.
Here, claimant's injury occurred as he was performing the final task of his shift. He ceased work within a few minutes of the occurrence. In my opinion, the claimant satisfied the work cessation element.
Based on the foregoing, I respectfully dissent.
_______________________________ PAT WEST HUMPHREY, Commissioner