Darling Store Fixtures v. McDonald

DARLING STORE FIXTURES v. Rayburn McDONALD

CA 95-902                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
                 Opinion delivered June 5, 1996


1.   Workers' compensation -- hernia claim -- requirements for
     compensation. -- In its requirements for compensation in all
     cases of claims for hernia, Ark. Code Ann.  11-9-523 (Repl.
     1996) provides that it shall be shown to the satisfaction of
     the Workers' Compensation Commission that (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) there was severe pain in the hernial
     region; (3) the pain caused the employee to cease work
     immediately; (4) notice of the occurrence was given to the
     employer within forty-eight hours thereafter; and (5) 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.

2.   Workers' compensation -- hernia claim -- Commission's finding
     that appellee met severe-pain requirement was supported by
     substantial evidence. -- Each of the five statutory criteria
     for hernia claims shall be shown to the satisfaction of the
     Commission; the appellate court could not say that the
     Commission's finding that appellee had met the statutory
     requirement of severe pain in the hernial area was not
     supported by substantial evidence.

3.   Workers' compensation -- hernia claim -- employer's duty. --
     Under Ark. Code Ann.  11-9-523(b)(1) (Repl. 1996), it is the
     duty of the employer, in every case of hernia, forthwith to
     provide the necessary and proper medical, surgical, and
     hospital care and attention to effectuate a cure by radical
     operation of the hernia, to pay all reasonable expenses in
     connection therewith, and, in addition, to pay compensation
     not exceeding a period of twenty-six weeks.

4.   Workers' compensation -- hernia claim -- physician-attendance
     requirement did not bar recovery -- court cannot be
     hypertechnical in construing statute. -- The appellate court
     agreed with the Commission's finding that the statutory
     requirement that a hernia claimant must have suffered physical
     distress requiring the attendance of a licensed physician
     within seventy-two hours did not bar appellee's recovery; the
     appellate court cannot be hypertechnical when construing the
     statute regarding hernia.  

5.   Workers' compensation -- hernia claim -- claimant need not
     prove actual attendance by physician within seventy-two-hour
     period. -- To satisfy the statutory physician-attendance
     requirement, a hernia claimant need not prove that he was
     actually attended by a physician within seventy-two hours
     after the injury; instead, the statute provides only that the
     physical distress following the occurrence of the hernia must
     have been such as to require the attendance of a physician
     within the seventy-two-hour period.

6.   Workers' compensation -- hernia claim -- physical-distress
     requirement met. -- Where appellee experienced continuing
     discomfort and a constantly enlarging bulge, the appellate
     court agreed with the Commission's finding that the evidence
     of physical distress was sufficient to meet the fifth
     statutory criterion for a hernia claim.


     Appeal from the Arkansas Workers' Compensation Commission;
affirmed.
     Penix, Penix, Lusby & Nix, by: Richard Lusby.
     No response.

     Melvin Mayfield, Judge.*ADVREP*CA4*
                           DIVISION II



                                        CA 95-902


                                             JUNE 5, 1996


DARLING STORE FIXTURES             AN APPEAL FROM THE ARKANSAS
                                   WORKERS' COMPENSATION
               APPELLANT           COMMISSION

VS.                                     
                                        
RAYBURN McDONALD                   AFFIRMED

               APPELLEE




                     Melvin Mayfield, Judge.


     The appellee, Rayburn McDonald, was awarded compensation for
a work-related hernia by the administrative law judge, and the
Arkansas Workers' Compensation Commission affirmed and adopted the
law judge's decision.  Appellant has appealed, claiming that
appellee failed to meet two of the criteria for a hernia to be
compensable: (1) severe pain in the hernial region; and (2)
physical distress so severe that it required the attendance of a
licensed physician within seventy-two hours.  
     McDonald, who appeared before the Commission pro se, testified
that he was employed by appellant as the lead man over the tool and
die room on the second shift, 2:45 p.m. to 12:00 midnight.  On July
5, 1994, while several people were on vacation, he was asked to cut
some holes in an "Arkwell" fixture.  At the hearing McDonald
produced a picture of the fixture, which the law judge described in
his opinion as depicting "a rather large piece of equipment which
appeared quite heavy."  McDonald said he had to remove the bolts
and dowels and move a part of the fixture to the band saw in order
to cut the requested holes.  To do this he put his hip under an
extruding portion of the fixture and held it against his stomach to
lift it to a cart.  
     When McDonald lifted the fixture he felt a pain, stretching
sensation, and burning in his left side where he had previously had
surgery for a hernia.  McDonald said his supper time was 8:30--9:00
p.m., and he thought this happened shortly before 8:30 because he
remembered pushing the fixture over to the saw before supper.  He
then sat down to eat, and during that time the pain and burning in
his side eased up.  The rest of the night when he would get in a
certain position he would feel a sticking or pinching sensation. 
About 11:00 p.m. he went to the "Arkwell" supervisor and told him
of the incident.  The supervisor sent him to first aid and said he
would be with him in a few minutes.  However, the supervisor never
came, so about quitting time McDonald went back to the supervisor
and was told that he had forgotten about McDonald.  The supervisor
then called the time officer and had the incident entered in the
first aid log.  McDonald then went home.
     McDonald testified that he felt nothing unusual the next day,
but gradually, over the next few days, he developed a bulge which
continuously got larger.  On July 23 he asked his supervisor to get
him an appointment with the human-resource person, Pam Steele.  It
was several days before he got to see her.  He asked her to make
him a doctor's appointment but she refused, and she telephoned the
appellant's insurance carrier, Sedgwick James.  McDonald was
interviewed on the telephone and was told that his claim was
denied, and they would not send him to a doctor.  A few days later
he went to his own doctor.  At the hearing McDonald said he was
waiting to have hernia surgery, and he wanted appellant to pay for
it.
     Arkansas Code Annotated  11-9-523 (Repl. 1996) provides in
part:
        (a) In all cases of claims for hernia, it shall be
     shown to the satisfaction of the 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.

     Appellant's first argument is that there is no substantial
evidence to support the finding of the Commission that McDonald met
the statutory requirement of severe pain in the hernial region.  It
contends that McDonald never experienced the "severe pain" required
by the second criterion in the hernia statute.  McDonald 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.  McDonald also testified that he had
previously experienced a double hernia, and it had developed more
slowly than the present one did.  He said he had a high pain
threshold and never felt excruciating pain, even with the 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.

24 Ark. App. at 47, 747 S.W.2d  at 591.  And, as noted in Ayres,
Ark. Code Ann.  11-9-523(a) provides that each of the five
criteria "shall be shown to the satisfaction of the commission." 
We cannot say that the Commission's finding on this point was not
supported by substantial evidence.
     Appellant also argues that there is no substantial evidence to
support the finding of the Commission that McDonald suffered
physical distress which required the attendance of a licensed
physician within seventy-two hours.  This is the fifth prerequisite
for finding a hernia to be compensable.  But Ark. Code Ann.  11-9-
523(b)(1) provides:  
          In every case of hernia, it shall be the duty of the
     employer forthwith to provide the necessary and proper
     medical, surgical, and hospital care and attention to
     effectuate a cure by radical operation of the hernia, to
     pay all reasonable expenses in connection therewith, and,
     in addition, to pay compensation not exceeding a period
     of twenty six (26) weeks.

Appellant claims that when McDonald told his supervisor he had hurt
himself and went to first aid, he was not doing it because he was
in such severe pain that he wanted immediate medical care; he was
simply following procedure for reporting a claim.  Appellant argues
that nothing in McDonald's testimony suggests he was in such
physical distress that he required the attention of a physician. 
In fact, appellant argues, it was two and one-half weeks before
McDonald felt the need to see a doctor; that it was several days
between the time he asked to see the human-resource director and
when he actually saw her; and that even more time elapsed after his
claim was refused before he went to his own physician.  
     Again, the Commission found that this did not bar recovery,
and we agree.  We have held that we cannot be hypertechnical when
construing the statute regarding hernia.  
     In Cagle Fabricating & Steel, Inc. v. Patterson, 42 Ark. App.
168, 856 S.W.2d 30 (1993), we said:
     Arkansas Code Annotated  11-9-523(a) requires a showing
     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."  A claimant need not prove that he was
     actually attended by a physician within 72 hours after
     the injury; instead, the statute provides only that the
     physical distress following the occurrence of the hernia
     was such as to require the attendance of a physician
     within the 72-hour-period.  Cagle Fabricating and Steel,
     Inc. v. Patterson, 36 Ark. App. 49, 819 S.W.2d 14 (1991),
     rev'd on other grounds, 309 Ark. 365, 830 S.W.2d 857
     (1992).  [Emphasis in the original.]

          In the case at bar, the Commission on remand found
     that the physical distress experienced by the appellee
     following the occurrence of the hernia was such as to
     require the attendance of a physician within the
     72-hour-period.  Although the record shows that the
     appellee did not seek medical treatment until more than
     two weeks after the occurrence, the Commission noted that
     the appellee continued to experience discomfort and
     periodic episodes of severe pain during this time.  The
     Commission also relied on testimony that the appellee is
     "stubborn about going to a doctor," and that he did not
     seek medical attention sooner because he "thought it
     would work itself out."  Viewing the evidence in the
     light most favorable to the appellee, we cannot say that
     the Commission erred in finding that the appellee's
     physical distress was such to require the services of a
     physician within 72 hours after the occurrence.

42 Ark. App. 172, 856 S.W.2d  at 32.
     Likewise, in the instant case, McDonald experienced continuing
discomfort and a constantly enlarging bulge.  The Commission found
this to be sufficient to meet the fifth criterion, and we agree.
     Affirmed.
     Cooper and Stroud, JJ., agree.