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DARLING STORE FIXTURES v. MCDONALD6/5/1996
The appellee, Rayburn McDonald, was awarded compensation for a work-related hernia by the administrative law judge, and the Arkansas Workers' Compensation Commission affirmed and adopted the law judge's decision. Appellant has appealed, claiming that appellee failed to meet two of the criteria for a hernia to be compensable: (1) severe pain in the hernial region; and (2) physical distress so severe that it required the attendance of a licensed physician within seventy-two hours.
McDonald, who appeared before the Commission pro se, testified that he was employed by appellant as the lead man over the tool and die room on the second shift, 2:45 p.m. to 12:00 midnight. On July 5, 1994, while several people were on vacation, he was asked to cut some holes in an "Arkwell" fixture. At the hearing McDonald produced a picture of the fixture, which the law judge described in his opinion as depicting "a rather large piece of equipment which appeared quite heavy." McDonald said he had to remove the bolts and dowels and move a part of the fixture to the band saw in order to cut the requested holes. To do this he put his hip under an extruding portion of the fixture and held it against his stomach to lift it to a cart.
When McDonald lifted the fixture he felt a pain, stretching sensation, and burning in his left side where he had previously had surgery for a hernia. McDonald said his supper time was 8:30 — 9:00 p.m., and he thought this happened shortly before 8:30 because he remembered pushing the fixture over to the saw before supper. He then sat down to eat, and during that time the pain and burning in his side eased up. The rest of the night when he would get in a certain position he would feel a sticking or pinching sensation. About 11:00 p.m. he went to the "Arkwell" supervisor and told him of the incident. The supervisor sent him to first aid and said he would be with him in a few minutes. However, the supervisor never came, so about quitting time McDonald went back to the supervisor and was told that he had forgotten about McDonald. The supervisor then called the time officer and had the incident entered in the first aid log. McDonald then went home.
McDonald testified that he felt nothing unusual the next day, but gradually, over the next few days, he developed a bulge which continuously got larger. On July 23 he asked his supervisor to get him an appointment with the human-resource person, Pam Steele. It was several days before he got to see her. He asked her to make him a doctor's appointment but she refused, and she telephoned the appellant's insurance carrier, Sedgwick James. McDonald was interviewed on the telephone and was told that his claim was denied, and they would not send him to a doctor. A few days later he went to his own doctor. At the hearing McDonald said he was waiting to have hernia surgery, and he wanted appellant to pay for it.
Arkansas Code Annotated § 11-9-523 (Repl. 1996) provides in part:
(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; 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.
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