{ "id": 6136589, "name": "Lawrence L. AYRES, Employee v. HISTORIC PRESERVATION ASSOCIATES, Employer, and Liberty Mutual Insurance Company, Insurance Carrier", "name_abbreviation": "Ayres v. Historic Preservation Associates", "decision_date": "1988-03-30", "docket_number": "CA 87-350", "first_page": "40", "last_page": "47", "citations": [ { "type": "official", "cite": "24 Ark. App. 40" }, { "type": "parallel", "cite": "747 S.W.2d 587" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "685 S.W.2d 813", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1877621, 6138063 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "818" }, { "page": "816" } ], "opinion_index": 0, "case_paths": [ "/ark/285/0324-01", "/ark-app/14/0095-01" ] }, { "cite": "14 Ark. App. 95", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138063 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "103" }, { "page": "99-100" } ], "opinion_index": 0, "case_paths": [ "/ark-app/14/0095-01" ] }, { "cite": "68 So.2d 872", "category": "reporters:state_regional", "reporter": "So. 2d", "opinion_index": 0 }, { "cite": "266 Ark. 851", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723384 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/266/0851-01" ] }, { "cite": "235 Ark. 1034", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1684826 ], "weight": 3, "year": 1963, "opinion_index": 0, "case_paths": [ "/ark/235/1034-01" ] }, { "cite": "6 Ark. App. 119", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138526 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "121-122" } ], "opinion_index": 0, "case_paths": [ "/ark-app/6/0119-01" ] }, { "cite": "21 Ark. App. 68", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137565 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark-app/21/0068-01" ] }, { "cite": "10 Ark. App. 254", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140886 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark-app/10/0254-01" ] }, { "cite": "254 Ark. 452", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1624176 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/ark/254/0452-01" ] }, { "cite": "19 Ark. App. 143", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6647051 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark-app/19/0143-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-523", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 4, "year": 1987, "pin_cites": [ { "page": "(a)" }, { "page": "(a)(5)" }, { "page": "(a)(5)" }, { "page": "(a)(2)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 707, "char_count": 12875, "ocr_confidence": 0.913, "pagerank": { "raw": 1.487076309803168e-07, "percentile": 0.6623154477345976 }, "sha256": "6501a709a40c6d8d8776411b53ac87e507aa8dc4e85a08324f5a5d7a9ba52e8c", "simhash": "1:c5cbcd96698d3308", "word_count": 2089 }, "last_updated": "2023-07-14T22:52:21.510151+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Jennings and Cooper, JJ., agree." ], "parties": [ "Lawrence L. AYRES, Employee v. HISTORIC PRESERVATION ASSOCIATES, Employer, and Liberty Mutual Insurance Company, Insurance Carrier" ], "opinions": [ { "text": "Beth Gladden Coulson, Judge.\nAppellant, Lawrence L. Ayres, raises five points for reversal of a decision by the Arkansas Workers\u2019 Compensation Commission. We agree that the Commission erred in denying appellant compensation for a hernia he suffered while employed by appellee Historic Preservation Associates, and we accordingly reverse the order and remand the matter to the Commission for further proceedings not inconsistent with this opinion.\nThe record reveals that appellant is an archeologist who, at the time of his injury, was working for appellee Historic Preservation Associates, a private archeological contractor headquartered in Fayetteville, Arkansas. The firm performs archeological surveys on federal projects to ascertain the existence of sites of prehistoric importance. On Thursday, May 22, 1986, appellant was working at the Hunter Dawson State Historic Site in New Madrid, Missouri, where his team had been digging test pits and trenches for over a week. At about 2:00 p.m., appellant was assisting in the closing and cleaning of the site, pulling steel fence posts out of the ground, when he felt what he described in his testimony as a \u201csharp, severe pain\u201d in the umbilical area. Suspecting a hernia, he immediately stopped working and reported the sensation to his site supervisor, Richard Kandare, who directed him not to engage in any more hard work. After a fifteen or twenty minute pause appellant began picking up small pieces of plastic and writing notes on the project \u2014 the only labor he performed for the rest of the afternoon. Kandare made a notation in his logbook that \u201cLarry [Ayres] mentioned getting a hernia.\u201d\nThe following day, Friday, May 23,1986, appellant and his team returned to Fayetteville in the company truck. During the seven and one-half hour trip, appellant reported the incident to his employer, Timothy C. Klinger, who subsequently instructed Kandare to limit appellant\u2019s work activity to very light duties entailing no lifting. Appellant informed Klinger that he would contact his own physician for treatment. Over the weekend, appellant and his wife worked, as usual, as \u201cpart-time parents\u201d at a boys\u2019 home in Rogers and returned to Fayetteville on Sunday afternoon. Because Monday, May 26, 1986, was observed as Memorial Day, appellant waited until Tuesday to call his physician, Dr. Dale Clemons, for an appointment. Dr. Clemons saw him on the morning of Wednesday, May 28, 1986, and diagnosed his condition as an umbilical hernia.\nAppellee Historic Preservation Associates denied appellant\u2019s claim for compensation, contending that he had failed to comply with the requirements of \u00a7 13(e) of the Arkansas Workers\u2019 Compensation Law, Ark. Code Ann. \u00a7 11-9-523(a) (1987) [Ark. Stat. Ann. \u00a7 81-1313(e) (Repl. 1976)]. That section provides that:\n(a) In all cases of claims for hernia, it shall be shown to the satisfaction of the commission:\n(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;\n(2) That there was severe pain in the hernial region;\n(3) That the pain caused the employee to cease work immediately;\n(4) That notice of the occurrence was given to the employer within forty-eight (48) hours thereafter;\n(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.\nAppellee\u2019s objections to appellant\u2019s claim were grounded specifically on subsections 2, 3, and 5. An administrative law judge found that appellant had sustained a compensable hernia, but, in an opinion filed on July 2, 1987, the Workers\u2019 Compensation Commission reversed the law judge\u2019s decision on the basis that appellant had failed to satisfy the provisions of \u00a7 13 (e). From that decision, this appeal arises.\nIt is the duty of this court to review the evidence in the light most favorable to the decision of the Workers\u2019 Compensation Commission and to uphold that decision if it is supported by substantial evidence. Perry v. Leisure Lodges, Inc., 19 Ark. App. 143, 718 S.W.2d 114 (1986). Having fulfilled our responsibility to review the evidence in the light most favorable to the Commission\u2019s decision, we are nonetheless persuaded that the order in question was not supported by substantial evidence. The facts in this case are not in dispute. At issue, instead, are the legal effects of the facts, which are within our province as an appellate court.\nIn his first argument for reversal, appellant contends that the Commission failed to afford him a liberal construction of \u00a7 13(e) of the Workers\u2019 Compensation Law, misreading the technical requirements of the statute. Those requirements are designed to make an award of compensation for a hernia dependent on the manner in which the hernia occurred rather than on its mere existence and to separate congenital or preexisting hernias from those resulting from trauma or effort at work. King v. Puryear Wood Products, 254 Ark. 452, 494 S.W.2d 123 (1973). It is, however, of primary importance to carry out the humane purpose of the Workers\u2019 Compensation Law. Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). That the Commission failed to do so in the present case is evident in its application of the requirements of \u00a7 13(e). Because appellant\u2019s first point is simply a broader statement of arguments more fully developed in his second, third, and fourth points, we will address the question of the Commission\u2019s failure to afford appellant the benefit of a liberal construction of \u00a7 13(e) as we discuss the more specific issues raised.\nAppellant\u2019s second point for reversal is that the Commission erred in failing to find that the physical distress suffered by appellant \u201cfollowing the occurrence of the hernia was such as to require the attendance of a licensed physician within seventy-two (72) hours after the occurrence.\u201d Ark. Code Ann. \u00a7 11-9-523(a)(5) (1987), from which the quoted language was taken, is prefaced by the requirement that the \u201cphysical distress\u201d caused by a hernia \u201cshall be shown to the satisfaction of the commission.\u201d This phrase, which applies to each of the five subsections of \u00a7 13(e), refers, of course, to the Commission\u2019s own standard of review, which imposes upon that body the duty of making its findings in accordance with a preponderance of the evidence. See McCoy v. Preston Logging, 21 Ark. App. 68, 728 S.W.2d 520 (1987).\nIn Brim v. Mid-Ark. Truck Stop, 6 Ark. App. 119,639 S.W.2d 75 (1982), this court reversed a Commission decision denying benefits to a claimant who sustained a hernia on July 28, 1980, and did not see a physician until September 2, 1980 \u2014 thirty-six days later. Explaining subsection (5), we said:\nThe statute does not require a claimant to prove that he was actually attended by a physician within 72 hours after the injury. The statutory requirement is met if the evidence shows that within 72 hours after the injury the claimant\u2019s condition was such that he sought and needed the services of a physician. Prince Poultry Co. v. Stevens, 235 Ark. 1034, 363 S.W.2d 929 (1963); Ammons v. Meuwly Machine Works, 266 Ark. 851, 587 S.W.2d 590 (Ark. App. 1979).\nIn Prince Poultry Co. v. Stevens, supra, the Arkansas Supreme Court cited with approval the interpretation given the word \u201crequired\u201d by the Supreme Court of Mississippi in Lindsey v. Ingalls Shipbuilding Corporation, 68 So.2d 872, which was as follows:\nTo demand or exact as necessary or appropriate; hence to warrant; to need; call for.\n6 Ark. App. at 121-122, 693 S.W.2d at 76. The only condition for satisfaction of the statutory requirement under Brim, then, was that a claimant \u201crequired\u201d the services of a physician within seventy-two hours of the occurrence of the injury.\nSubsequently, this court, in Osceola Foods, Inc. v. Andrew, 14 Ark. App. 95, 685 S.W.2d 813 (1985), affirmed the award of benefits to a claimant seeking compensation for a hernia. We cited Brim and held specifically that \u201cThe diagnosis of a hernia would confirm the need of the services of a physician which is all that section requires.\u201d 14 Ark. App. at 103, 685 S.W.2d at 818.\nIn the present case, appellant immediately reported what he believed to be a hernia to his site supervisor, Richard Kandare, who noted the incident in his log book. On the next day, he reported the hernia to Timothy Klinger, the owner and operator of appellee Historic Preservation Associates, immediately upon his return to the home office. Due to the holiday weekend, appellant did not make arrangements to see his physician until Tuesday. The doctor was unable to examine appellant until the next day, Wednesday, but was able, upon examination, to diagnose appellant\u2019s condition as an umbilical hernia and informed appellant that surgery would be required. These facts not only establish by a preponderance of the evidence that appellant complied with the requirement of Ark. Code Ann. \u00a711-9-523(a)(5) (1987), but necessarily lead us to the conviction the Commission\u2019s conclusion in this regard is not supported by substantial evidence. The diagnosis confirmed the need of a physician\u2019s services. See Osceola Foods, Inc. v. Andrew, supra.\nFor his third point for reversal, appellant contends that the Commission erred in failing to find that he had ceased work immediately as required by Ark. Code Ann. \u00a7 ll-9-523(a)(3) (1987). The difficulty for the Commission appears to have been the fact that appellant resumed work, although light duty, shortly after reporting the hernia to the site supervisor. The record shows, however, that appellant immediately stopped the heavy lifting that caused the pain and reported to Richard Kandare. After fifteen or twenty minutes, appellant returned to work, at the direction of his supervisor, but only to pick up paper and plastic and to make notes on the project.\nThis court dealt with the question of immediate cessation of work in Osceola Foods, Inc. v. Andrew, supra, where, in strikingly similar circumstances, the claimant had stopped working for fifteen or twenty minutes and then continued working for the rest of the day and until noon on the following day. We stated:\nAppellants argue that so short a pause in his work is not sufficient to meet the third statutory requirement of immediate cessation and that to hold otherwise would defeat the purpose of the requirement. We agree that due to possible uncertainty in determining which of several causes may have produced a hernia this requirement, among others, was made because a dramatic demonstration of the causal connection between the work strain and the hernia leaves little doubt as to cause and effect. However, we do not agree that such causal connection can be dramatically manifested only by an instantaneous and continual cessation of work. Nor should the causal connection be determined by mathematical formulas or measured by minutes or hours. It should be based on evidence which satisfies the finder of fact that the cessation from work became necessary soon enough after the trauma to establish that there was a causal connection under the circumstances of the case.\n14 Ark. App. at 99-100; 685 S.W.2d at 816. Again, the record indicates compliance with the statutory requirement on appellant\u2019s part, and we are unable to see how the Commission\u2019s conclusion on this point could be said to have been supported by substantial evidence.\nAppellant argues in his fourth point for reversal that the Commission erred in failing to find that he suffered \u201csevere pain in the hernial region\u201d as required by Ark. Code Ann. \u00a7 11-9-523(a)(2) (1987). In a statement made to appellee Liberty Mutual Insurance Company\u2019s adjuster, appellant described his pain as \u201csudden\u201d rather than \u201csevere,\u201d a word choice the Commission apparently deemed significant. We do not put semantics before substance; it is clear that the Commission\u2019s reading of appellant\u2019s description of his pain as something less than severe is not supported by substantial evidence.\nAppellant\u2019s fifth, and final, point for reversal is argued in the alternative. Appellant asserts that the Commission erred in failing to find that appellee had a separate and affirmative duty to provide reasonable medical expenses. Because we find the Commission\u2019s decision is not supported by substantial evidence, it is unnecessary for us to address this issue.\nReversed and remanded.\nJennings and Cooper, JJ., agree.", "type": "majority", "author": "Beth Gladden Coulson, Judge." } ], "attorneys": [ "Lewis D. Jones and Kenneth S. Hixson, for appellant.", "Shaw, Ledbetter, Hornberger, Cogbill & Arnold, for appellees." ], "corrections": "", "head_matter": "Lawrence L. AYRES, Employee v. HISTORIC PRESERVATION ASSOCIATES, Employer, and Liberty Mutual Insurance Company, Insurance Carrier\nCA 87-350\n747 S.W.2d 587\nCourt of Appeals of Arkansas Division I\nOpinion delivered March 30, 1988\n[Rehearing denied April 27, 1988.]\nLewis D. Jones and Kenneth S. Hixson, for appellant.\nShaw, Ledbetter, Hornberger, Cogbill & Arnold, for appellees." }, "file_name": "0040-01", "first_page_order": 60, "last_page_order": 67 }