Raymond Hickson v. Southern Refrigerated Transport

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

RAYMOND HICKSON

APPELLANT

V.

SOUTHERN REFRIGERATED TRANSPORT

APPELLEE

CA04-864

March 9, 2005

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F211073]

REVERSED AND REMANDED

Josephine Linker Hart, Judge

Appellant Raymond Hickson appeals from the Arkansas Workers' Compensation Commission's finding that he failed to prove by a preponderance of the evidence that he suffered a compensable hernia. Further, he argues that the Commission erred in considering the testimony of a witness for appellee Southern Refrigerated Transport because the testimony was based on a "report" that was not included in the record or disclosed to appellant. We reverse and remand.

Our workers' compensation statutes set out the evidence that must be presented in hernia claims. See Ark. Code Ann. § 11-9-523(a) (Repl. 2002). Particularly, in addition to other evidence, the claimant must 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." Ark. Code Ann. § 11-9-523(a)(1) (Repl. 2002). In the opinion adopted by the Commission, the administrative law judge (ALJ) concluded that appellant failed to show this element, and appellant asserts that the Commission erred in so finding.

Appellant testified that on September 18, 2002, he drove an eighteen-wheel truck and trailer as an employee of appellee. While at a warehouse in Baton Rouge, Louisiana, appellant was disconnecting his truck from the trailer, which required that he jack up the trailer so that it would then be supported by two telescoping legs on the front of the trailer. While doing so, he was tapped on the shoulder by another driver, and he turned his head. At that moment, a forklift was driven into the trailer. He testified that the jack handle spun and hit him in the groin. He concluded that the forklift driving across the dock plate affected the stability of the trailer, putting weight on the rear of the trailer and releasing pressure on the jack. He assumed that, when the forklift backed out, it released the pressure and caused the jack handle to spin. Appellant was admitted to the emergency department at Wadley Regional Medical Center on September 21, 2002, and he was diagnosed as having a right inguinal hernia.

Cliff Brown, who was employed as a claims manager for appellee, testified for appellee that when appellant's claim was reported, he had one of his employees examine the trailer to check the handle. He testified that he obtained a report from the employee regarding his assessment of the handle and whether it would swing freely. Appellant objected, arguing that the report had not been provided to appellant. The ALJ overruled the objection, and Brown testified that the report indicated that there was no movement from the handle and that everything performed normally. Further, Brown testified that he was familiar with the handles on the trailers. He stated that the "dolly stands" or "landing gears" are two independent operating systems with a crank that hooks with the shaft and cranks the stands up and down, with the weight on the stands. He further stated that, once released, unless there is pressure causing it to snap back, there is no reason for movement unless the gear malfunctions. He testified that if it swung freely, it would settle to the ground, which would be a malfunction of the system. He further testified that the crank system "locks into position wherever you stop at because [of] the strength and weight of the gear," with only a small amount of slack, allowing it to roll back a gear, but that there would be no spinning. He further testified that what appellant described could not have happened that way.

Medical records were also submitted into evidence. The typewritten information on the emergency-department record of September 21, 2002, at 6:50 p.m., indicated that appellant's chief complaint was hemoptysis1 and right groin swelling. The record provided that appellant was sick to his stomach and that he coughed and spit up some blood. The record also indicated that at 8:00 p.m., appellant's "groin hurts when he coughs." He was taken for an x-ray at 8:10 p.m. The emergency physician's record showed that he was seen at 8:20 p.m., and his chief complaint was right groin pain that started when he lifted "a jack on his truck."2

On September 25, 2002, he was seen by Dr. A.D. Smith, who concluded that appellant had a right inguinal hernia. Dr. Smith noted that appellant told him that he "had it about [two] weeks," that "some panel or something hit him in the groin and it has been sore ever since," and that appellant "thinks that caused it." He further wrote, "It is possible that it has been there longer than he thinks and he bruised it." On December 13, 2002, Dr. Smith filled out a questionnaire that asked him to assume that appellant was struck in the right groin area by a jack handle and that the injury was diagnosed as a hernia. He concluded that, based on the facts and history provided by appellant and the questionnaire, appellant's symptoms were the result of work-related activities.

An office record from Dr. Kevin C. Kleinschmidt showed that appellant was seen by the doctor on September 23, 2002. The record indicated that appellant's chief complaint was that, on September 18, 2002, a trailer handle hit his groin. The record also contains a letter from Dr. Kleinschmidt, who stated that when appellant came to his clinic on September 23, 2002, appellant did not have "contusions or hematomas that would substantiate a blunt trauma as etiology." The doctor wrote that he reviewed the emergency-room chart, and he determined that appellant's "complaint was that he had been coughing and developed some pain and swelling suddenly thereafter in his right groin." He also stated that there was "no mention of blunt trauma as a cause of his pain" and "no mention of any contusion, swelling, or bruising at that time that would substantiate blunt trauma." Dr. Kleinschmidt opined that "the coughing with the development of a hernia, certainly would more indicate that his hernia could have been from the coughing episodes that were quite intense at that time." He concluded that "one would have to suspect that the hernia probably was more likely from the cough than exactly blunt trauma from a trailer hitch popping into the right groin area[,]" and "[e]specially since the patient was not seen initially on that day of the alleged injury...."

The ALJ found that appellant failed to prove "by a preponderance of the evidence that he sustained a hernia `as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall.'" The ALJ further concluded that, "[w]hile [appellant] testified that he was struck in the groin area by the jack handle on his trailer, I cannot find that a preponderance of the evidence established that this incident caused [appellant's] hernia." The ALJ stated that there was no evidence of bruising to support appellant's claim of blunt trauma to his groin. She noted that appellant's chief complaint was hemoptysis and right groin pain. She further stated that appellant's first complaint was that he felt sick to his stomach and coughed and spit up some blood. The second symptom listed was of right groin pain with coughing. The ALJ concluded that, based on the order of appellant's complaints and symptoms listed by the emergency-room nurse, this was the order of the complaints given by appellant. She further stated that appellant did not mention that his groin pain started after lifting something on his truck until after an x-ray ruled out a pulmonary problem. The ALJ stated that "[i]t is important to note that the claimant never provided the emergency room personnel with a history of being struck in the groin by the jack handle."

Further, the ALJ stated that she was persuaded by Dr. Smith's observation that it was possible that the hernia had been there longer than appellant thought and that he had bruised it. She did not, however, find credible the questionnaire filled out by Dr. Smith because there was no indication that Dr. Smith was advised of appellant's history of coughing and spitting up blood, and further, he was asked to assume a "limited set of facts." On causation, the ALJ found more persuasive Dr. Kleinschmidt's letter that the hernia was "probably more likely" caused by appellant's cough rather than blunt trauma, as Dr. Kleinschmidt demonstrated a greater knowledge of the facts. The ALJ concluded that while appellant "described such an event, the emergency room medical records, Dr. Smith's initial question regarding causation, and Dr. Kleinschmidt's opinion regarding causation persuade me to find that [appellant] did not develop a hernia from being struck by the jack handle." The Commission adopted the opinion of the ALJ.

On appeal, appellant argues that the Commission erred in finding that he failed to prove by a preponderance of the evidence that he sustained a compensable hernia injury. Particularly, he challenges the Commission's reliance of Dr. Kleinschmidt's opinion, arguing that the opinion was erroneous because the emergency-department record did indicate a specific incident that was the cause of his groin pain, that he ignored appellant's complaint of feeling sick to his stomach, and that he incorrectly described the report when he describedit as stating that appellant had been coughing and developed pain and swelling suddenly thereafter. He further argues that the Commission should not have considered Brown's testimony.

Our standard of review is as follows:

On appeal, this court will view the evidence in the light most favorable to the Commission's decision and affirm when that decision is supported by substantial evidence. Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission's decision displays a substantial basis for the denial of relief. A substantial basis exists if fair-minded persons could reach the same conclusion when considering the same facts. The determination of the weight to be given the evidence and the resolution of any conflicts in the evidence are matters left to the Commission. The Commission is not required to believe the testimony of any witness, and may accept and translate into findings of fact only those portions of testimony it deems worthy of belief. And yet, if the Commission errs when it translates the evidence, and that error is expressly relied upon in reaching its decision, the reviewing court "is left to speculate concerning what evidence the Commission intended to rely on when making its decision."

Tucker v. Roberts-McNutt, Inc., 342 Ark. 511, 517-18, 29 S.W.3d 706, 709-10 (2000) (citations omitted).

We conclude that the Commission erred in translating the evidence presented into findings of fact. Dr. Kleinschmidt's assessment was based in part on his reading of the emergency-department record. He stated in his letter that, based on the report, appellant's complaint was that "he had been coughing and developed some pain and swelling suddenly thereafter in his right groin." The record, however, only stated that appellant's chief complaints were hemoptysis and right groin swelling, that appellant "coughed and spit up some blood," and that his "groin hurts when he coughs." The doctor's assessment of the record does not comport to the statements contained in the record. The Commission's reliance on the doctor's statement led to the Commission's mistranslation of the record into findings of fact on causation. Further, while the record also indicated that he had right groin pain that started when he lifted "a jack on his truck," the Commission stated that appellant"never provided the emergency room personnel with a history of being struck in the groin by the jack handle." We conclude that the Commission also erred in translating this evidence into findings of fact.

We also note other errors made by the Commission in translating evidence into findings of fact. The Commission concluded that the order of the complaints listed on the record translated into the priority placed on the complaints by appellant. Absent an indication of the priority of the complaints by the emergency-department physician and documented on the face of the record, the Commission can only read the record in its entirety, and to do otherwise is to assume facts not found in the record. However, to the extent that appellant's reporting of his symptoms is relevant, the Commission's findings do not consider the statement found on the first line of the record listing appellant's chief complaint as hemoptysis and right groin swelling.

Further, the emergency-department records from Wadley Regional Medical Center establish appellant's chief complaints as hemoptysis and right groin swelling. Dr. Smith's records dated September 25, 2002, establish that the emergency physician referred appellant to him for repair of his hernia. Dr. Smith's name is handwritten on the first page of the Wadley Regional Medical Center's emergency-department record. The medical records further establish that Dr. Smith repaired the hernia at Wadley Regional Medical Center. Considering the amount of documentation contained in appellant's medical records maintained at Wadley Regional Medical Center, it is speculation for the Commission to opine that Dr. Smith was unaware of appellant's coughing. Further, while the Commission apparently considered Dr. Smith's statement, "It is possible that it has been there longer than he thinks and he bruised it," the Commission does not consider, as Dr. Smith's later opinion implied through his finding that appellant's symptoms were the result of his work-related activities, that the hernia was of recent origin. Thus, we remand to the Commission for its full examination of the relevant evidence. See Tucker v. Roberts-McNutt, Inc., supra.

Appellant further argues that the Commission erred in considering Brown's testimony because the testimony was based on a "report" that was not included in the record or disclosed to appellant. We note that the Commission is not "bound by ... technical or formal rules of procedure ... but may make such investigation or inquiry, or conduct the hearing, in a manner as will best ascertain the rights of the parties." Ark. Code Ann. § 11-9-705(a) (Repl. 2002). However, we have stated that, in workers' compensation cases, "the fact-finders are expected to adhere to basic rules of fair play, such as recognizing the right of cross-examination and the necessity of having all the evidence in the record." Brewer v. Tyson Foods, Inc., 10 Ark. App. 88, 90, 661 S.W.2d 423, 424 (1983). Here, appellee failed to provide appellant with the report prior to the hearing. Nevertheless, the ALJ permitted Brown to testify regarding the report, despite the prehearing conference order providing that "[e]vidence ... not disclosed through prehearing procedures, shall not be considered except for unavoidable casualty." Because the report was never disclosed to appellant, he was unable to fully and effectively cross-examine Brown, as well as the employee who prepared the report, regarding the contents of the report. In keeping with the best ascertainment of the rights of the parties, the Commission, in examining the relevant evidence on remand, should not consider Brown's testimony relating to the report.

Reversed and remanded.

Glover and Neal, JJ., agree.

1 "Hemoptysis" is defined as "[t]he spitting of blood derived from the lungs or bronchial tubes as a result of pulmonary or bronchial hemorrhage." Stedman's Medical Dictionary 781 (26th ed. 1995).

2 The Commission thought that the word "jack" was illegible.