Cagle Fabricating and Steel, Inc. v. Patterson

• Citation: 36 Ark.App. 49,819 S.W.2d 14
• Decision Date: 06 November 1991
• Docket Number: No. CA,CA
• Parties: CAGLE FABRICATING AND STEEL, INC., Appellant, v. Roger D. PATTERSON, Appellee. 90-481.
• Court: Court of Appeals of Arkansas

Page 14

819 S.W.2d 14

36 Ark.App. 49

CAGLE FABRICATING AND STEEL, INC., Appellant, v. Roger D. PATTERSON, Appellee.

No. CA 90-481.

Court of Appeals of Arkansas,

En Banc.

Nov. 6, 1991.

Wayne Harris, Fort Smith, for appellant.

Eldon F. Coffman, Fort Smith, for appellee.

MAYFIELD, Judge.

This is an appeal from a decision of the Workers' Compensation Commission which awarded compensation benefits to the claimant, Roger D. Patterson, upon a finding that he had sustained a work-related hernia. Appellant argues the decision is not supported by substantial evidence and is contrary to law.

The record contains evidence that on December 28, 1988, Patterson, a 29-year-old welder, was pulling a sixty-pound part from a jig when he felt a pulling sensation on his right testicle. He testified that he had a sudden flash of severe pain; that he stopped work and reported the incident to his supervisor; and that the lunch bell rang about that time. The pain subsided during the lunch hour and he went back to work. He said he worked for the next two weeks with a nagging pain which was not really severe but which got worse, and by January 16 the pain became so severe that he went to see his doctor.

In a letter dated March 1, 1989, Dr. W.F. Dudding stated that he saw the claimant on January 16, 1989, and his examination, "revealed tenderness in the right testicle with no marked epididymal swelling, a mild fingertip inguinal hernia on the right with tenderness in this area." His letter then states that "a diagnosis of inguinal strain versus small hernia versus epididymitis was entertained and patient was treated with anti-inflammatory medication for about a week." The letter also stated that the claimant suffered increasing discomfort and that Dr. Dudding sent the claimant to see a surgeon, Dr. John J. Weisse, who found an inguinal hernia and repaired it on January 20, 1989. Dr. Dudding's letter of March 1, 1989, also stated that the "facts are consistent with an on-the-job injury on December 28, 1988, as per Mr. Patterson's story," and "it is not unusual that a very small hernia be very painful, yet still be very difficult to detect even by a professional let alone a layman who could not be expected to determine what the problem was."

The history and physical report made by Dr. Weisse for the claimant's admission to the hospital states that the doctor's examination had "confirmed a right inguinal hernia." As his "impression at the time of admission," Dr. Weisse recorded a "job related right inguinal hernia." The "operative report" lists the postoperative diagnosis as a "right direct inguinal hernia," and describes in detail the "hernia repair procedure" which occurred on January 20, 1989.

Arkansas Code Annotated Section 11-9-523(a) (1987) provides:

(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;

(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 these criteria had been met and found the claimant's hernia to be compensable. It stated:

We find that Patterson's effort of pulling on the jig and feeling sudden pain in his testicle constitute the sudden effort and severe pain satisfying the first two criteria. The Administrative Law Judge erred in ruling that the occurrence of a hernia did not "immediately" follow the pulling incident, since "immediately" does not mean "instantly"; rather, it is only necessary for the hernia to occur in a time and manner making clear the causal connection between it and the strain that occurred. Osceola Foods, Inc. v. Andrew, 14 Ark.App. 95, 685 S.W.2d 813 (1985). We find such to be the case, because Patterson gave credible testimony that he was in distress throughout the two weeks before the cause of pain was diagnosed. The employer appears not to deny that Patterson ceased working and complained to his supervisor contemporaneously with the incident. Thus, it can be seen that all requirements of the statute are met if Patterson's physical distress was such that the attendance of a licensed physician was required within seventy-two (72) hours after the occurrence. The law on this point has been set out in Ayres v. Historic Preservation Associates, 24 Ark.App. 40, 747 S.W.2d 587 (1988).

The Commission then quoted from our opinion in Ayres, which quoted from other cases, including the final sentence of the opinion in Osceola Foods, Inc. v. Andrew, 14 Ark.App. 95, 685 S.W.2d 813 (1985), which states, "The diagnosis of a hernia would confirm the need of the services of a physician...." See Osceola, 14 Ark.App. at 103, 685 S.W.2d 813. The Commission stated:

We understand the requirements of the fifth subsection to have been effectively negated by the Ayres holding. If the diagnosis of a hernia confirms the fact that the claimant needs a physician, it logically follows that any claimant who can prove a work-related hernia has satisfied the fifth requirement. Since we find that Patterson did comply with subsections 1 through 4 and that the injury did occur within the scope and course of his employment, he has met his burden of proof under Section 523(a) and is entitled to appropriate benefits.

Appellant cites a number of Arkansas appellate decisions and argues that the claimant in this case is not entitled to compensation because the Commission's decision is not supported by substantial evidence and because the Arkansas appellate courts have construed too liberally the statutory provisions regarding hernia. As to the five factual requirements set out in Ark.Code Ann. § 11-9-523(a), the appellant contends that the appellee did not "experience that type of severe pain as contemplated by the statute, did not experience continued severe pain after the December 28, 1988, incident, was able to perform his regular employment duties involving strenuous manual labor, and had absolutely no reason to believe medical attention was required until a few days prior to January 16, 1989."

When reviewing a decision of the Workers' compensatIon Commission, we must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, we must affirm its decision. Bearden Lumber Company v. Bond, 7 Ark.App. 65, 644 S.W.2d 321 (1983). We believe that there is substantial evidence to support the Commission's findings of fact in this case.

We next examine the appellate decisions which the appellant contends "have construed too liberally the statutory provisions regarding hernia." Those decisions were concerned with the fifth requirement of the statute which requires that "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." The appellant argues that the Commission's decision in the present case "erroneously found the fifth statutory requirement had been negated by Court decisions."

In the discussion of this issue, we first note that the fifth requirement does not provide that a claimant must prove that he was actually attended by a physician within seventy-two hours after the injury, but 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 seventy-two hours after the occurrence. The purpose of this requirement was explained in Harkleroad v. Cotter, 248 Ark. 810, 454 S.W.2d 76 (1970), where the court said:

It is a matter of common knowledge that witnesses do not see hernias sustained by fellow workmen as they would see a broken leg or broken arm. Consequently the people have seen fit to make, and the legislature has seen fit to leave, a compensable hernia a rather dramatic occurrence under the statute, with little or no room left for question or doubt that it did occur within the course of employment....

248 Ark. at 820, 454 S.W.2d 76. The court in Harkleroad reversed a Commission decision awarding compensation for a hernia claim, but it did not hold that the claimant must actually see a physician within the required period (48 hours at that time). That issue was settled in Prince Poultry Co. v. Stevens, 235 Ark. 1034, 363 S.W.2d 929 (1963), where the court adopted the interpretation given in Mississippi to a similar statutory provision in that state. Also, Prince noted that one of the meanings of "require" is "to need." In Miller Milling Co. v. Amyett, 240 Ark. 756, 402 S.W.2d 659 (1966), Justice George Rose Smith said of the Prince case:

We followed a very similiar Mississippi case, where the court reasoned that for an injury "to require" a physician's attendance within a certain number of days does not invariably mean that the physician must actually be consulted within that time. A substantial compliance may be sufficient.

240 Ark. at 758, 402 S.W.2d 659.

The Prince decision was again referred to in Ammons v. Meuwly Machine Works, 266 Ark. 851, 587 S.W.2d 590 (Ark.App.1979), where the Arkansas Court of Appeals said, "As pointed out in the Prince case, the statute does not require claimant to prove he was actually...