Highland Resources, Inc., AIG Claim Services, Inc. v. Gary D. Walker

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION II

HIGHLAND RESOURCES, INC., AIG CLAIM SERVICES, INC.,

APPELLANTS

V.

GARY D. WALKER,

APPELLEE

CA01-485

OCTOBER 31, 2001

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION,

NO. E913919

AFFIRMED

This is an appeal from the decision of the Arkansas Workers' Compensation Commission affirming the administrative law judge's decision that appellee, Gary Walker, had suffered a compensable injury. Walker has been employed by appellant, Highland Resources, for twenty-six years. On November 12, 1999, he was lifting heavy objects when he complained of severe pain, resulting in his employer transporting him to the hospital emergency room by ambulance. After being diagnosed with and receiving treatment for a stomach virus, Walker left on a previously planned vacation, during which he continued to take his medication and rest. Walker alleges that his condition worsened and, a week later, he went to a physician and was diagnosed with an incisional hernia. Surgery was performed to repair the hernia on December 6, 1999, and Walker was released to return to work on February 6, 2000.

The administrative law judge held that Walker had established by a preponderanceof the evidence that he suffered a compensable hernia injury on the day alleged while employed by Highland. The Commission made a de novo review of the record and affirmed the decision. In its appeal, Highland contends that the Commission's decision is not supported by substantial evidence, arguing: (1) that the evidence does not support the proposition that the occurrence of the hernia was work-related; (2) that the medical evidence does not contain objective medical findings to support an injury; (3) that Walker's credibility is suspect. We hold that there is substantial evidence to support the Commission's decision and, therefore, affirm.

In determining the sufficiency of the evidence to sustain the findings of the Workers' Compensation Commission, we review the evidence in the light most favorable to the Commission's findings and affirms if they are supported by substantial evidence. Ray v. University of Arkansas, 66 Ark. App. 177, 180, 990 S.W.2d 558, 560 (1999). Substantial evidence exists if fair-minded persons could reach the same conclusion when considering the same facts. Crudup v. Regal Ware, Inc., 341 Ark. 804, 809, 20 S.W.3d 900, 903 (2000). Therefore, if there is substantial evidence showing that Mr. Walker suffered a compensable injury, we must affirm.

In order to qualify for workers' compensation benefits, a claimant must suffer an injury that qualifies as a "compensable injury" as defined by Ark. Code Ann. § 11-9-102(4)(A) (Repl. 1999). Section 11-9-102(4)(A)(i) defines "compensable injury" as "an accidental injury causing internal or external physical harm to the body ... arising out of and

in the course of employment and which requires medical services or results in disability ...." For the injury to have occurred during the course of employment, it must have occurred "while [the employee] is carrying out the employer's purpose or advancing the employer's interests directly or indirectly." Campbell v. Randal Tyler Ford Mercury, Inc., 70 Ark. App. 35, 38, 13 S.W.3d 916, 919 (2000). A hernia qualifies as a compensable injury if it meets the requirements of Ark. Code Ann. § 11-9-523 (1996). See Ark. Code Ann. § 11-9-102(4)(A)(v) (Repl. 1999). Section 11-9-523 provides:

(a) In all cases of claims for hernia, it shall be shown to the satisfaction of the Worker's 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.

The Commission held that (1) Walker did meet all of the requisites of the hernia statute, section 11-9-523(a), and, (2) even if it is not governed by that statute, the injury would still be compensable under general provisions of the Arkansas Workers' Compensation Act. We agree with the Commission that Walker met the statutory requirements of section 11-9-523(a) and affirm the holding that the evidence is sufficient toprove that the hernia did arise out of the course of employment.

The evidence shows that Walker, a manual laborer, was lifting heavy objects at work while unloading a truck when he felt a sudden pain that was sufficiently severe to require his employer to have him immediately transported to the hospital emergency room by ambulance where he was immediately examined and treated by physicians. This evidence is sufficient to fulfill the first, third, fourth, and fifth requirements of section 11-9-523(a), leaving only the second requirement that there be a severe pain in the hernial region. Highland contends that this requirement was not fulfilled, arguing that Walker did not suffer severe pain in the abdominal region. They support this argument by emphasizing Walker's statement that he felt lower chest pain and could not catch his breath, which was made before he was transported to the emergency room. However, Walker also testified that he experienced pain below his rib cage and in the area where the hernia was eventually located. Also, emergency medical technicians identified Walker's pain as being beneath his left nipple, the site of the hernia.

Highland argues that because the November 12, 1999, medical records did not reveal the existence of a hernia, there is no objective medical evidence, supported by objective findings, as required by Ark. Code Ann. § 11-9-102(4)(a)(1). While it is true that Walker's hernia was not diagnosed during his visit to the emergency room on November 12, a ventral incisional hernia was diagnosed by Dr. Blagdon on November 19. Dr. Blagdon referred Walker to Dr. Fohn who confirmed Dr. Blagdon's diagnosis and recommended that the hernia be surgically repaired. The diagnoses of Drs. Blagdon and Fohn constitute objectivefindings within the meaning of section 11-9-102(4)(a)(1).

Finally, Highland argues that Walker's testimony demonstrated his lack of credibility through inconsistent statements regarding where he spent his vacation and when he discovered the hernia bulge. Walker testified that during the week following November 12, he spent a portion of his time at home and a portion of his time at the deer camp where he laid on the couch and rested. He could not remember what day he discovered that he had a bulge in his "belly," but it was sometime after November 12 and before the hernia was diagnosed on November 19. It is within the Commission's sole discretion to determine whether each witness is credible and how much weight is to be given to their testimony. Crudup, supra. The discretion of the Commission in determining the credibility of witnesses and giving appropriate weight to their testimony means that it makes findings of fact only from what it finds believable. See Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). We find no inconsistency in Walker's testimony that would form a basis for us to conclude that the Commission's findings are not supported by substantial evidence.

There is substantial evidence to support the Commission's finding that Walker suffered a compensable injury while employed by Highland Resources. Therefore, we affirm.

Affirmed.

Griffen and Crabtree, JJ., agree.