COOPER v. MCBURNEY CORPORATION1/31/2001
Waylon Cooper appeals from a decision of the Workers' Compensation Commission denying him benefits for a hernia. On appeal, he argues that the Commission erred in failing to find that his injury occurred on April 13, 1998, rather than two days earlier. We reverse and remand for an award of benefits.
Cooper worked as a laborer for the McBurney Corporation, a construction company. During the course of his employment, he suffered physical problems on April 11, 1998, and April 13, 1998. Cooper claimed that the first problem was merely a stomach muscle strain and that the second one was the hernia that ultimately required surgery to repair. McBurney denied that the hernia was
compensable, and on April 16, 1999, Cooper brought his case before an Administrative Law Judge (ALJ) for a hearing.
Co-worker William R. Cross testified by deposition that he was working with Cooper on April 11, 1998, and that Cooper told him that night that he had "strained his back or stomach or something." However, he stated that Cooper worked a full twelve-hour shift that night. Cross also testified that he worked with Cooper the next night when they made a "pour" of a cement-like refract material and that the process required that Cooper pick up hundred-pound bags and empty them into a trough where Cross mixed them. Cross stated that the process was constant, but Cooper had three to five minutes of rest between bags.
According to Cross, in the early morning hours of that shift, on April 13, 1998, Cooper complained that he was injured and that when he tried to urinate, his injury bothered him. Although the pour that night had to be repeated, Cooper did not help out to any significant degree because of his injury. Cross stated that Cooper's father, who was his supervisor, allowed Cooper to avoid strenuous activity that night, but eventually Cooper "just had to quit." Cross, who stated that he was Cooper's roommate at the time, testified that after work, Cooper took a shower and noticed a lump in his groin area. Cross claimed that Cooper showed him the lump. According to Cross, he told Cooper that he might have a hernia after he complained that he felt a burning pain upon urination. Cross further testified that Cooper returned to work the next night, but did not do any strenuous work for the rest of the night. Regarding the work performed on the evening of April 11, 1998, which involved "pulling two or three hundred pound tubes," he opined that it was as strenuous as the work performed during the pour.
Cooper, who was twenty-one years old and stood 6'1" tall and weighed 235 pounds, testified that he injured himself on April 13, 1998, while he was lifting the bags of refract. He claimed that he felt a burning sensation in his right groin that got progressively worse. Cooper claimed that by his lunch break, he could not eat because his stomach was upset, and he did not do any more heavy lifting for the rest of his shift. He confirmed that he told Cross that he was experiencing pain when he tried to go to the bathroom. He also claimed that he sustained his injury on Monday night/Tuesday
morning, informed his supervisor on Tuesday afternoon, April 14, 1998, at 3:30, and afterwards sat in the tool trailer for most of his shift. Cooper stated that his mother set up an appointment with a Dr. Rushing later that day. After Dr. Rushing unsuccessfully attempted to push the hernia back in, he referred Cooper to a Dr. Bowden, who was also unsuccessful with that treatment. Dr. Bowden repaired the hernia with surgery on April 30, 1998.
Regarding his April 11, 1998, injury, Cooper stated that the pain was above his belt line, and it was a "stretching" pain. By comparison, the pa
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