Danny Barnard v. TTC Illinois, Inc. and Credit General Insurance Company

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

SAM BIRD, JUDGE DIVISION I

DANNY BARNARD,

APPELLANT

v.

TTC ILLINOIS, INC. and

CREDIT GENERAL INSURANCE COMPANY,

APPELLEES

CA02-400

DECEMBER 18, 2002

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION, NO. E912333,

AFFIRMED

In this workers' compensation case, the administrative law judge found that Danny Barnard, appellant, sustained a compensable hernia injury related to his employment with appellee, TTC Illinois, Inc. The Workers' Compensation Commission reversed the law judge's decision, finding instead that Barnard failed to prove that he sustained a compensable hernia injury. Barnard contends on appeal that the Commission's decision is not supported by substantial evidence. We disagree and affirm.

It was not disputed that Barnard suffered compensable cervical and low back injuries on October 14, 1999, while trying to lift and move a 700 pound sheet of metal. Barnard contends on appeal, as he did below, that he also sustained an umbilical hernia in the accident that caused the other compensable injuries. He testified that his right foot slipped from beneath him, he was pinned in a "physical strain" for approximately a minute and a half, the

metal sheet "sat down" on his abdomen and groin area before slamming him to the floor, and he was trapped on the floor with the weight of the sheet "on the right corner directly on" his navel.

Barnard further testified that he was not aware at the beginning that he had the hernia; that at first his pain was greater in areas other than the hernia area; and that he had cervical and lumbar pain as well as the sensation of a mild itch in the umbilical hernia area. He testified that he noticed the problem and pain in his navel area two or three weeks after October 14, 1999; that he showed it to nurses at that time, around November 1; and that he had been wearing a hernia belt after Dr. Rodney Chandler prescribed it around January 2000. He stated that in 1986 he had undergone surgery for two hernias in the groin area, but that those hernias were unlike the disputed hernia in that they were below the base of the V of the groin.

Arkansas Code Annotated section 11-9-523 addresses the compensability of a hernia in a workers' compensation claim. The statute requires that the following must 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 torequire the attendance of a licensed physician within seventy-two (72) hours after the occurrence.

Ark. Code Ann. § 11-9-523(a) (Repl. 1996).

The Commission found that Barnard failed to prove any of the five statutory requirements. The Commission noted that Dr. Yeshwant Reddy gave the only expert medical opinion on the issue of whether the umbilical hernia was caused by the incident of October 14, 1999, and that Dr. Reddy was of the opinion that the hernia was not work-related. According substantial weight to Dr. Reddy's opinion, the Commission found that Barnard failed to establish that his hernia occurred immediately following the result of any sudden effort, severe strain, and application of force directly to the abdominal wall during the October 14, 1999 incident. Therefore, the Commission found that the first statutory requirement had not been proven.

The Commission viewed the evidence as undisputed that Barnard had experienced absolutely no pain or symptoms in the abdominal region until at least sometime in November 1999, which was at least two weeks after the date of the work-related incident. The Commission stated that because Barnard had experienced no symptoms in the abdominal region for more than two weeks after the incident, it was impossible for him to establish the other requirements of section 11-9-523(a). Consequently, the Commission found that Barnard failed to establish the second, third, fourth, and fifth requirements to establish a compensable hernia.

Barnard relies upon his own testimony and upon excerpts of medical records tosupport his contention that his umbilical hernia clearly resulted from the incident of October 14, 1999. He points to the following notation in an independent medical evaluation that Dr. Yeshwant Reddy performed on August 4, 2000:

On May 19, 2000, Dr. Rodney R. Chandler, M.D. in his note states that Mr. Barnard has been suffering from hiatal and umbilical hernia [sic] that have gotten progressively worse since the incident on 10/14/99. It seems Mr. Barnard failed to mention this hernia at the onset of his treatment due to the severity of his neck and back pain and the hernia being only mild at that time. He recommends hernia repair.

Barnard also points out that after a seven-hour neuropsychological consultation on May 11, 2000, Dr. Bryan E. Smith observed "no indication of difficulty suggesting response bias and nothing to suggest that [Barnard] was consciously feigning any difficulties." Additionally, Barnard notes that the medical history taken by neurosurgeon Dr. Charles Mabry on May 22, 2000, reflects that approximately four months earlier and approximately one to two weeks prior to the appearance of the hernia, Barnard had noted swelling in and around his umbilicus, heralded by tingling and burning.

When the Commission denies coverage because a worker has failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission if its opinion displays a substantial basis for the denial of relief. McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997). In determining the sufficiency of the evidence to sustain the findings of the Commission, we review the evidence in the light most favorable to the Commission's findings and affirm if they are supported by substantial evidence. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Min-Ark Pallet Co. v. Lindsey, 58 Ark. App. 309, 950 S.W.2d 468 (1997). The determination of credibility and weight to be given a witness's testimony is within the sole province of the Commission. Id.

Barnard's arguments on appeal go to the credibility and weight of the evidence before the Commission. The Commission, after considering Barnard's testimony and the medical records introduced into evidence, assigned substantial weight to Dr. Reddy's expert medical opinion that the umbilical hernia was not work-related. It was within the province of the Commission to make this determination.

We hold that Dr. Reddy's opinion constitutes substantial evidence to support the Commission's decision that Barnard failed to establish that his hernia occurred immediately following the result of any sudden effort, severe strain, and application of force directly to the abdominal wall during the October 14, 1999 incident. We also hold that this finding by the Commission constitutes substantial evidence to support the Commission's related finding that he failed to prove the second, third, fourth, and fifth requirements of the statute. Thus, the Commission's opinion displays a substantial basis for the denial of the claim.

Affirmed.

Pittman and Hart, JJ., agree.