{"id":"alj-H205844-2023-06-06","awcc_number":"H205844","decision_date":"2023-06-06","opinion_type":"alj","claimant_name":"Robert Scott","employer_name":"Correct Craft Holdings, LLC And Basscat","title":"SCOTT VS. CORRECT CRAFT HOLDINGS, LLC and BASSCAT AWCC# H205844 JUNE 6, 2023","outcome":"unknown","outcome_keywords":[],"injury_keywords":["hernia","back","strain"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/SCOTT_ROBERT_H205844_20230606.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SCOTT_ROBERT_H205844_20230606.pdf","text_length":14806,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H205844 \n \nROBERT W. SCOTT, EMPLOYEE        CLAIMANT \n \nCORRECT CRAFT HOLDINGS, LLC and  \nBASSCAT, EMPLOYER                 RESPONDENT \n \nZENITH INSURANCE COMPANY, \nCARRIER/TPA               RESPONDENT \n \nOPINION FILED JUNE 6, 2023 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 19\nTH\n day of April, \n2023, in Mountain Home, Baxter County, Arkansas. \n \nClaimant is represented by Mr. Frederick S. “Rick” Spencer, Attorney-at-Law, Mountain \nHome, Arkansas. \n \nRespondents  are  represented  by  Mr.  James  A.  Arnold,  II,  Attorney-at-Law,  Ft.  Smith, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was conducted on the 19\nth\n day of April, 2023, to determine the issues of \ncompensability for a work-related hernia injury; medical in regard to the injury; entitlement \nto  temporary  total  disability;  plus  attorney  fees.    All  other  issues  were  reserved.  The \nrespondents contend that the claimant is not entitled to Arkansas workers’ compensation \nbenefits for his hernia.  At the time of the hearing the parties stipulated that the claimant \nearned  an  average  weekly  wage  of  $679.32  for  a  TTD/PPD  rate  of  $453.00/$340.00, \nrespectively.   A copy of the Prehearing Order was marked “Commission Exhibit 1” and \nmade part of the record without objection.  The Order provided that the parties stipulated \nthat the Arkansas Workers’ Compensation Commission has jurisdiction of the within claim \nand that an employer/employee relationship existed on or about August 3, 2022, and all \nrelevant times.        \n\nSCOTT – H205844 \n \n2 \n \n The  claimant’s  and  respondent’s  contentions  are all  set  out  in  their  respective \nresponses  to  the  prehearing  questionnaire  and  made  a  part  of  the  record  without \nobjection.      Robert  Scott,  the  claimant,  and  his  wife,  Jennifer  Scott,  were  the  two  (2) \nwitnesses to testify.  From a review of the record as a whole, to include medical reports \nand other matters properly before the Commission and having had an opportunity to hear \nthe testimony and observe demeanor of the witnesses, the following findings of fact and \nconclusions of law are made in accordance with Arkansas Code Annotated § 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  That  an  employer/employee  relationship  existed  on  August  3,  2022,  and  all \nrelevant times.  At the time, the claimant earned an average weekly wage of \n$679.32   a   week,   sufficient   for   a   TTD/PPD   rate   of   $453.00/$340.00, \nrespectively, per week. \n \n3.  That the claimant has failed to satisfy the required burden of proof to show that \nhe sustained a compensable, work-related hernia on August 3, 2022. \n \n4.  That, consequently, all other issues are moot. \n \n5.  If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of  the \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The  Prehearing  Order,  along  with  the  prehearing  questionnaires  of  the parties \nwere admitted into the record without objection.  The claimant submitted an exhibit which \nwas  admitted  without  objection  consisting  of  seventeen  (17)  pages  of  medical  reports.  \nThe  respondents  also  submitted an  exhibit  which  was  admitted  without  objection \nconsisting of twenty (20) pages of medical reports. \n\nSCOTT – H205844 \n \n3 \n \n The claimant, Robert Scott, testified that he was born on January 20, 1971, and \nwas fifty-two (52) at the time of the hearing.  His job consisted of laying fiberglass in high \nend bass boats and stated that he was bending over, laying fiberglass when he felt an \nimmediate pain.  He had started work for the respondent on February 2, 2022.  He testified \nthat he had gotten pretty good at his job and had finished up a job laying fiberglass in \nregard to live-wells and went to assist another worker.  He had bent over laying a piece \nof fiberglass and didn’t like the way it looked and pulled it back.  “I raised up, and it was \nclose to being finished, time for lunch.  When I raised up I felt a sharp pain, and I thought, \n‘that was weird.’”  The pain was sporadic and was not normal, “and it kept getting worse \nso I went to my supervisor, Jessie, and told him, I said ‘Something’s wrong.’”  “Maybe I \nneed to call my wife.  She has some medical background.”  “So I laid my shirt and I took \na picture of it, that I had a little egg right there in the beginning. When I raised my shirt it \nwas gone, and I thought, ‘Well, that’s weird.  That doesn’t make sense.’”  He went on to \nstate that he took a picture of it and sent it to his wife who said “You might want to go to \nthe  hospital,  cause  it  could  be  a  strangulated  hernia.”    The  claimant  then  told  his \nsupervisor and left for the hospital. (Tr. 6-9)  The claimant testified he would sometimes \nlift the tops of boats which were very heavy and guessed that they weighed probably a \nthousand pounds, with four (4) or five (5) guys on each side lifting.  When asked if he had \nany pre-existing problems with hernias, he admitted “there was a bulge or whatever” but \nthat he had never had surgery for a hernia. (Tr. 10)  The claimant thought that after he \nwent  to  the  emergency  room,  he  saw Dr.  Lincoln  Payton,  the  workers’  compensation \ndoctor.  He was then given a referral to see a surgeon, Dr. Carlisle, and was taken off \nwork  until  the  15\nth\n,  he  thought. \n \nDr.  Carlisle  performed  surgery  which  took  care  of  the \n\nSCOTT – H205844 \n \n4 \n \nproblem.  (Tr.  11-13)    The  claimant  returned  to  work  for  the  respondent  for  a  week \nperforming light-duty and was then told that they did not need his services, and was off \nwork until November 17, 2022.  He then returned to work for another employer, Waste \nConnections  at  Midway.    (Tr.  14)    The  claimant  stated  the  respondent  knew  about  his \ninjury immediately. (Tr. 15) \n Under cross-examination, the claimant admitted that at the time he felt the pain on \nAugust  3\nrd\n,  he  was  not  lifting  anything,  but  that  he  had  bent  over  the  boat  and had \nstraightened up.  He also admitted he remembered telling the doctor in the emergency \nroom he had a hernia in his belly button and he felt that it had gotten worse today.  “I told \nthem I had a bulge and something’s wrong because it disappeared and I’m in a lot of pain.  \nAnd I had spoke to my wife with regard to it.”  The claimant went on to admit that he had \ntaken a picture of his belly button because there had been a “little goose egg bulge” but \nthat all of a sudden it was gone and that scared him.  “All I knew is I was in a lot of pain.”  \nHe admitted he already had the bulge for a year when he went to Dr. Carlisle, which was \nbefore he went to work for the respondent.  He also admitted that he had not had any \nincident, accident, or injury, while working for the respondent for his six (6) month work \nperiod.  He also admitted he had been taken off work initially, then returned to work, and \nworked a week.  He was released to return to work on October 17.  The claimant admitted \nthat if the records provided he had been last seen by Dr. Carlisle on October 3\nrd\n, and his \nrelease was two (2) weeks later, there was a period that he didn’t have a job. (Tr. 17-20)     \n Under  re-direct,  the  claimant  testified  that  he  had  done  a  good  job  for  the \nrespondent and would bend way over while making the live wells, almost down to touching \nhis toes.  When he raised back up there was really a sharp pain.  He wondered “What \n\nSCOTT – H205844 \n \n5 \n \nwas that.”  “It was like somebody was kicking me on the inside of my stomach with boots \non.”  That’s when I said, “Something’s wrong.”  (Tr. 21-23) \n Jennifer Scott, the wife of the  claimant,  was called.  She stated that prior to the \ninjury, the claimant never had any limitations, and never had any issues being able to do \nanything.  On the day of the injury, and until Dr. Carlisle released him to return to work, \nhis  work  capabilities  were  greatly  diminished.    She  also  stated  that  she  had  been a \nnationally registered EMT basic, but that her license had lapsed. (Tr. 25-26) \nIn  regard  to  medical  records,  the  claimant  submitted  seventeen  (17)  pages  of \nmedical  reports.  The  initial  report  dated  August  3,  2022,  was  a  report  from  the  Baxter \nRegional Emergency Room which provided that the claimant presented with a complaint \nof abdominal pain and stated that he had a hernia in his belly button.  The report went on \nto provide for a finding of a ventral hernia with a loop of bowel in the opening. (Cl. Ex. 1, \nP. 1-4)  An abdominal CT on the same date confirmed this finding. (Cl. Ex. 1, P. 5) \nThe claimant presented to Dr. Carlisle on August 15, 2022.  The report provided \nfor an umbilical hernia that was thought to be acquired.  It also stated that the claimant \nhad provided he was bent over the side of a boat when all of a sudden, he felt a tear when \nstanding up.  The claimant did not remember when he first noted it but it was possibly a \nyear or more.  He bent over wrong and it “popped out.” (Cl. Ex. 1, P. 6-8)  The claimant \nreturned to Dr. Carlisle on September 9, 2022, and a robot assisted lap umbilical hernia \nrepair with mesh was scheduled. (Cl. Ex. 1, P. 9-11) \nThe  claimant  was  admitted  into  Baxter  Regional  for  surgery  on  September  16, \n2022,  for  the  repair  of  the  umbilical  hernia.  (Cl.  Ex.  1,  P.  12-14)    The  claimant  then \nreturned  to  Dr.  Carlisle  on  October  3,  2022  for  a  follow-up.    The  report  provided the \n\nSCOTT – H205844 \n \n6 \n \nclaimant was improving and it recommended a limit in regard to heavy lifting for two (2) \nweeks and then the claimant could return to his normal activities. (Cl. Ex., P. 15-16) \nThe  respondent  also  submitted  medical  reports  which  consisted  of  twenty  (20) \npages and which was the same as many of the claimant’s reports.  The hospital records \nwere similar to the claimant’s but also included a release that provided that the claimant \ncould return to work on August 15, 2022, light-duty, with no lifting over fifteen (15) pounds. \n(Resp. Ex. 1, P. 1-9)  A report from Dr. Lance Lincoln dated August 4, 2022, provided the \nclaimant stated he was bent over a boat, fiber-glassing, and when he raised up, he felt a \nsharp pain in his abdomen.  The pain had declined but the bulge in his navel was tender.  \nThe  report  provided  claimant  was  injured  yesterday.    An  umbilical  hernia  without \nobstruction was assessed with light-duty and no lifting. (Resp. Ex. 1, P. 10-11)    \nDISCUSSION AND ADJUDICATION OF ISSUES \n \nIn regard to the primary issue of compensability, the claimant has the burden of \nproving, by a preponderance of the evidence, that he is entitled to compensation benefits \nfor the injury under the Arkansas Workers’ Compensation Law.  In determining whether \nthe claimant has sustained his burden of proof, the Commission shall weigh the evidence \nimpartially,  without  giving  the  benefit  of  the  doubt  to  either  party.    Arkansas  Code \nAnnotated §  11-9-704.   Wade v. Mr. Cavananugh’s,  298  Ark.  364,  768  S.W.  2d  521 \n(1989).  Further, the Commission has the duty to translate evidence on all issues before \nit into findings of fact.  Weldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 \nS.W.2d 179 (1996) \nThe  specific  requirement  for  establishing  a  hernia  under  the  Arkansas  Workers’ \nCompensation Act is set forth at Ark. Code Ann. § 11-9-523 as follows: \n\nSCOTT – H205844 \n \n7 \n \n(a)  In all cases of claims for hernia, it shall be shown to the satisfaction of \nthe Commission. \n \n(1.) That the occurrence of the hernia immediately followed as the result \nof sudden effort, severe strain, or the application of force directly to \nthe abdominal wall; \n \n(2.)That there was severe pain in the hernial region; \n \n(3.) That the pain caused the employee to cease work immediately. \n \n(4.) That notice of the occurrence was given to the employer within forty-\neight (48) hours thereafter; \n \n(5.) That the physical distress following the occurrence of the hernia was \nsuch  as  to  require  the  attendance  of  a  licensed  physician  within \nseventy two (72) hours after the occurrence. \n \nThe  above-statute  does  not  provide  benefits  for  every  injury  sustained  by  an \nemployee in the course of his employment; thus the statute provides no benefits in claims \nfor  a  hernia  unless  the  five  (5)  different  things  are  shown  to  the  satisfaction  of the \nCommission.   Humbert  v.  Arkansas  State  Hwy.  &  Transp.  Dept.,  270  Ark.  853,  606 \nS.W.2d 377 (1980).    \nIn  the  present  matter, the  claimant  contends  that  he  felt a  tearing or sharp pain \nwhen he raised up from fiber-glassing on a bass boat  which they were building for the \nrespondent  employer.    He  admitted  he  told  the  ER  doctor  he  had  a  hernia  in  his  belly \nbutton and he felt that it had gotten worse on that day. (August 3, 2022)  He testified, “I \ntold them I had a bulge and somethings wrong and it disappeared.”  There had been a, \n“little goose egg bulge” and it disappeared.  He also admitted he had the bulge for a year \nprior to presenting to Dr. Carlisle, which was prior to the time when he started working for \nthe respondent. \n\nSCOTT – H205844 \n \n8 \n \nIn  the  present  matter, none  of the  treating  physicians opined  that the  claimant’s \nhernia was caused by a work-related accident.  See, Jaramillo v. Sys Contr., 2014 Ark. \nApp.  552,  445  S.W.  3d  524  (2104).    That  based  upon  the  medical records  and  the \ntestimony of the claimant, it is clear the hernia had pre-existed for over a year, even prior \nto  the  claimant  beginning  work  for  the  respondent.  It  is  also  clear  that  the  Arkansas \nWorkers’ Compensation  Act  is  to  be  strictly  construed.  Consequently,  there  is  no \nalternative  but  to  find  that  the  claimant  has  failed  to  satisfy  the  requirements  for \na   work-related   hernia   injury   pursuant   to   Arkansas   Code   Annotated   §11-9-523.  \nConsequently, all other issues are moot. \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, it is found that the claimant has failed to satisfy the required burden of proof \nthat his claim for the hearing is compensable.  Consequently, all other issues are moot. \n If not already paid, the respondents are ordered to pay the cost of the transcript \nforthwith. \nIT IS SO ORDERED. \n  \n \n \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205844 ROBERT W. SCOTT, EMPLOYEE CLAIMANT CORRECT CRAFT HOLDINGS, LLC and BASSCAT, EMPLOYER RESPONDENT ZENITH INSURANCE COMPANY, CARRIER/TPA RESPONDENT OPINION FILED JUNE 6, 2023 Hearing before Administrative Law Judge, James D. Kennedy, on the 19 TH day o...","fetched_at":"2026-05-19T23:06:00.660Z","links":{"html":"/opinions/alj-H205844-2023-06-06","pdf":"https://labor.arkansas.gov/wp-content/uploads/SCOTT_ROBERT_H205844_20230606.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}