Opinion
CLAIM NO. E513721
OPINION FILED MAY 15, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by JIM R. BURTON, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by E. DIANE GRAHAM, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed October 9, 1997 finding that claimant sustained a compensable hernia August 9, 1995. Based upon our de novo review of the entire record, we find that claimant has failed to meet her burden of proof. Therefore, we find that the decision of the Administrative Law Judge must be reversed.Claimant contends that she sustained a compensable hernia on August 9, 1995 when she pulled a patient up on her hip and down the hall to the kitchen after the patient dropped her walker. Conversely, respondent contends that the claimant is unable to satisfy the five elements necessary to prove a compensable hernia. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with respondent.
In order for a hernia injury to be compensable Ark. Code Ann. § 11-9-523(a) (Repl. 1996) requires a claimant to prove the following:
(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or 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.
Even assuming, arguendo, that the other four elements have been met, we find that claimant has not satisfied the notice requirement. Notice of the occurrence giving rise to the hernia must be given to the employer within 48 hours after theoccurrence. The record clearly shows that claimant did not notify her employer of the occurrence until 16 days after it occurred. The Administrative Law Judge found claimant satisfied the notice requirement since she told her employer that she had been diagnosed with a hernia within 48 hours of learning of the diagnosis. This, however, is not the statutory requirement.Min-Ark Pallet Co. v. Lindsey, 58 AA 309, ___ S.W.2d ___ (1997) relied upon by the Administrative Law Judge is clearly distinguishable from the facts in this case. In Lindsey, the employer was aware of the occurrence when the secretary and wife of one of the owner's allowed the claimant to use her telephone to call his mother about the incident. While it was not an official notice of the occurrence, the employer in Lindsey had knowledge of the occurrence during the first 40 hours after it occurred. The same cannot be said for the present case. More than 16 days passed before claimant ever let her employer know that anoccurrence ever took place in which claimant may have suffered an injury. In our opinion, claimant's notification only after learning of her diagnosis does not satisfy the letter or intent of the law. Consequently, we find that claimant did not provide her employer with notice of the occurrence within 48 hours.
Accordingly, we find that claimant has not proven the necessary requirements for a compensable hernia. Therefore, we reverse the decision of the Administrative Law Judge.
IT IS SO ORDERED.
Commissioner Humphrey dissents.