Ark. Code Ann. § 11-9-523 (2026)

Case Notes

Construction.

The courts should not be hypertechnical when construing this section regarding hernia. Darling Store Fixtures v. McDonald, 54 Ark. App. 60, 922 S.W.2d 748 (1996).

The word “occurrence” appears four times within this section, two of which are within the phrase “occurrence of the hernia”; clearly, when used within this phrase, “occurrence” means the happening of the hernia itself, not necessarily the work event resulting in the hernia. Min-Ark Pallet Co. v. Lindsey, 58 Ark. App. 309, 950 S.W.2d 468 (1997).

Applicability.

The special requirements imposed by this section on cases involving hernias do not apply to hiatal hernias. Loveless v. Garrison Furn. Co., 251 Ark. 776, 475 S.W.2d 158 (1972); Public Employee Claims Div. v. Tiner, 37 Ark. App. 23, 822 S.W.2d 400 (1992).

The requirements of this section 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. Ayres v. Historic Preservation Assocs., 24 Ark. App. 40, 747 S.W.2d 587 (1988).

Additional Benefits.

Claimant not entitled to additional benefits because of hernia severity in view of this section specifically limiting compensation to a period of 26 weeks. Jobe v. Capitol Prods. Corp., 230 Ark. 1, 320 S.W.2d 634 (1959).

Where an employee has had good results from a hernia operation and where his total disability results from his susceptibility to the recurrence of the hernia, he is not entitled to benefits for total disability under § 11-9-519 of this section, but is limited to the benefits provided by the hernia provision in this section. Smith v. Riceland Food, 261 Ark. 10, 545 S.W.2d 604 (1977).

Claimant was not entitled to receive permanent disability benefits because of infections and complications resulting from his hernia surgeries where the medical evidence presented did not indicate that the claimant's failure to heal promptly caused him to suffer any greater disability than any other person sustaining a severe hernia injury. Tibbs v. Dixie Bearings, Inc., 9 Ark. App. 150, 654 S.W.2d 588 (1983).

Where claimant's disability resulted from complications from his hernia surgery, the disability was separate and distinct from the hernia and the twenty-six week compensation cap in subdivision (b)(1) did not apply. Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996).

Appellate Review.

When reviewing the sufficiency of the evidence to support a decision of the Workers' Compensation Commission, the appellate court will view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Workers' Compensation Commission and affirm that decision if it is supported by substantial evidence. Cagle Fabricating & Steel, Inc. v. Patterson, 42 Ark. App. 168, 856 S.W.2d 30 (1993).

Compensation.

Employees of cleaning establishment who worked for the most part at a ranch owned by insured which was maintained primarily for advertising value were entitled to compensation. Great Am. Indem. Co. v. Bailey, 221 Ark. 469, 254 S.W.2d 322 (1953).

If claimant would have been able to work longer if his injuries had not occurred he is entitled to compensation. Minor v. Poinsett Lumber & Mfg. Co., 235 Ark. 195, 357 S.W.2d 504 (1962).

The term compensation as used in this section refers to money benefits paid to the injured employee for disability. Brooks v. Arkansas-Best Freight Sys., 247 Ark. 61, 444 S.W.2d 246 (1969).

Where the claimant sustained a compensable injury while working at one job, his compensation benefits were properly based on the wages from that job rather than on the combined incomes of that job and another held by claimant. Hart's Exxon Serv. Station v. Prater, 268 Ark. 961, 597 S.W.2d 130 (Ct. App. 1980).

Permanent partial disability benefits provided in § 11-9-522 are not payable in hernia cases because compensation is limited to that provided in this section. Rash v. Goodyear Tire & Rubber Co., 18 Ark. App. 248, 715 S.W.2d 449 (1986).

Elements.

—In General.

A hernia is not presumed to be compensable merely because the elements of this section are met. Riley v. Monark Boat Co., 269 Ark. 819, 602 S.W.2d 411 (Ct. App. 1980).

This chapter does not provide benefits for every injury sustained by an employee in the course of his employment; thus the statute provides no benefits in claims for hernia unless five different things are shown to the satisfaction of the commission. Humbert v. Arkansas State Hwy. & Transp. Dep't, 270 Ark. 853, 606 S.W.2d 377 (1980).

—Attendance of Physician.

Evidence sufficient to show compliance with subdivision (a)(5). Williams Mfg. Co. v. Walker, 206 Ark. 392, 175 S.W.2d 380 (1943) (decision under prior law); Crossett Co. v. Childers, 234 Ark. 320, 351 S.W.2d 841 (1961); Lashlee Steel Co. v. Dodridge, 250 Ark. 520, 465 S.W.2d 691 (1971); Ammons v. Meuwly Mach. Works, 266 Ark. 851, 587 S.W.2d 590 (1979).

Subdivision (a)(5) does not require claimant to prove that he actually was attended by physician within time period, but only that the distress following descent of the hernia was such as to require attendance of physician within time period. S.E. Prince Poultry Co. v. Stevens, 235 Ark. 1034, 363 S.W.2d 929 (1963); Ayres v. Historic Preservation Assocs., 24 Ark. App. 40, 747 S.W.2d 587 (1988); Darling Store Fixtures v. McDonald, 54 Ark. App. 60, 922 S.W.2d 748 (1996).

Commission could properly excuse failure of employee to go to doctor within the time period following the occurrence of the hernia where employee immediately reported his injury to his employer and employer asked employee to continue on light work and to go to a doctor in a day or two if he did not feel better. S.E. Prince Poultry Co. v. Stevens, 235 Ark. 1034, 363 S.W.2d 929 (1963).

Evidence sufficient of delay in consultation of physician leading to denial of claim. Miller Milling Co. v. Amyett, 240 Ark. 756, 402 S.W.2d 659 (1966); Haygood v. Turner, 247 Ark. 724, 447 S.W.2d 316 (1969); Harkleroad v. Cotter, 248 Ark. 810, 454 S.W.2d 76 (1970); Morgan v. C & C Mach. Shop, Inc., 256 Ark. 193, 506 S.W.2d 115 (1974).

Evidence insufficient to show that physical distress existed and denial of claim was proper. Morgan v. C & C Mach. Shop, Inc., 256 Ark. 193, 506 S.W.2d 115 (1974) (decision prior to 1975 amendment).

This section does not require claimant to prove 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's condition was such that he sought and needed the services of a physician. Ammons v. Meuwly Mach. Works, 266 Ark. 851, 587 S.W.2d 590 (1979); Brim v. Mid-Ark Truck Stop, 6 Ark. App. 119, 639 S.W.2d 75 (1982); Ayres v. Historic Preservation Assocs., 24 Ark. App. 40, 747 S.W.2d 587 (1988).

Where claimant told her employer that she had hurt her abdomen quite badly and that she needed to see a doctor about the injury but she could not afford to, the employer had an affirmative duty to send the claimant to a doctor to determine the extent of her injury, and therefore, the employer was estopped from insisting upon strict compliance with subdivision (a)(5). Brim v. Mid-Ark Truck Stop, 6 Ark. App. 119, 639 S.W.2d 75 (1982).

There is no requirement that a claimant prove that he was actually attended by a physician within 72 hours but only that he needed the services of a physician during that period; a diagnosis of a hernia would confirm the need of the services of a physician. Osceola Foods, Inc. v. Andrew, 14 Ark. App. 95, 685 S.W.2d 813 (1985).

Subdivision (a)(5) means that the claimant must demonstrate that there was a need to consult a doctor within the 72-hour period. Cagle Fabricating & Steel, Inc. v. Patterson, 309 Ark. 365, 830 S.W.2d 857 (1992).

—Cessation of Work.

Evidence insufficient to find claimant's injury caused her to cease work immediately. Bottoms Baptist Orphanage v. Johnson, 240 Ark. 175, 398 S.W.2d 544 (1966); Haygood v. Turner, 247 Ark. 724, 447 S.W.2d 316 (1969); Bibler Bros. Lumber Co. v. Allen, 251 Ark. 593, 474 S.W.2d 116 (1971); Oak Lawn Farms v. Payne, 251 Ark. 674, 474 S.W.2d 408 (1971); King v. Puryear Wood Prods., 254 Ark. 452, 494 S.W.2d 123 (1973); Osceola Foods, Inc. v. Andrew, 14 Ark. App. 95, 685 S.W.2d 813 (1985).

The causal connection between work strain and a hernia should not 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. Osceola Foods, Inc. v. Andrew, 14 Ark. App. 95, 685 S.W.2d 813 (1985); Ayres v. Historic Preservation Assocs., 24 Ark. App. 40, 747 S.W.2d 587 (1988).

—Force to Abdominal Wall.

Claimant failed to provide clear proof of the exact mechanics of his fall, and the broad assumption by the administrative law judge that the claimant, who was morbidly obese, flipped in the air after being struck by a pipe on a forklift, did not meet the requirements of the statute, plus none of his treating physicians opined that the hernia was caused by a work-related accident; the finding that he failed to satisfy the statutory requirement that he prove that his hernia occurred immediately following his accident as a result of the application of force to his abdominal wall was affirmed. Jaramillo v. Sys. Contr., 2014 Ark. App. 552, 445 S.W.3d 524 (2014).

—Notice to Employer.

An injured employee would not be required to report a hernia within the 48 hour period where he did not know that he had received a hernia; however, he might still be required to report the injury. McMurtry v. Marshall Model Market, 237 Ark. 11, 371 S.W.2d 4 (1963); Siders v. Southern Mattress Co., 240 Ark. 267, 398 S.W.2d 901 (1966).

All of the requirements of this section were satisfied where claimant testified that he felt a burning pain in his side when he lifted a pallet (subdivision (a)(1)), claimant said that the pain “almost brought me to my knees” and that he stopped working in order to call his mother (subdivisions (a)(2) and (3)), claimant discussed his problem with a co-worker who was the wife of one of the company owners within forty-eight hours of the onset of the pain (subdivision (a)(4)), and where the physical distress required the attendance of a physician within the amount of time required by subdivision (a)(5), even though the physician was not actually seen within the seventy-two hour time frame (subdivision (a)(5)). Min-Ark Pallet Co. v. Lindsey, 58 Ark. App. 309, 950 S.W.2d 468 (1997).

There was substantial evidence to show that the claimant did not meet the statutory notice requirements in relation to his new hernia condition where (1) on a day that he had a doctor's appointment related to a prior work-related hernia condition, he felt a sharp pain in his groin and thought he had reinjured his prior hernia, but then realized that his pain was coming from the other side, (2) he stopped working, mentioned the pain to his supervisor and asked to go to the company nurse's office to wait for a ride to his appointment, (3) as he sat in the nurse's office, he did not mention to the nurse that he had injured himself, (4) at his doctor's appointment, he informed the doctor that he felt a pain in his left side, and the doctor diagnosed a new hernia, but the claimant never informed the doctor that he had injured himself at work, and (5) the claimant did not report that his new hernia condition was was work-related until five days after the injury. Daniels v. Affiliated Foods S.W., 70 Ark. App. 319, 17 S.W.3d 817 (2000).

—Severe Pain.

Testimony that claimant experienced a “a slight burning sensation” and a sticking or pinching feeling in certain positions was sufficient to support the commission's finding of severe pain. Darling Store Fixtures v. McDonald, 54 Ark. App. 60, 922 S.W.2d 748 (1996).

Although claimant reported that his physical distress following the alleged occurrence of his hernia was such as to require the attendance of a licensed physician within 72 hours after the occurrence, as required by the statute, the undisputable fact was he did not seek medical treatment for almost a year following the accident, and he medical records did not support that his hernia-related symptoms were debilitating in the sense anticipated by the statute. Jaramillo v. Sys. Contr., 2014 Ark. App. 552, 445 S.W.3d 524 (2014).

—Sudden Effort, Etc.

Evidence sufficient to support finding that claimant had failed to establish that occurrence of hernia immediately followed a sudden effort or severe strain. King v. Puryear Wood Prods., 254 Ark. 452, 494 S.W.2d 123 (1973).

Describing pain as “sudden” rather than “severe” held not to be deemed significant. Ayres v. Historic Preservation Assocs., 24 Ark. App. 40, 747 S.W.2d 587 (1988).

Evidence.

Evidence was sufficient to sustain commission's finding that worker sustained a compensable injury which caused hernia for which he was operated upon, and then died a few days later. Baker v. Silaz, 205 Ark. 1069, 172 S.W.2d 419 (1943) (decision under prior law).

Evidence was sufficient to sustain a denial of compensation by the commission for failure to meet the requirements of this section. Potlatch Forests, Inc. v. Burks, 244 Ark. 714, 426 S.W.2d 819 (1968).

Commission's denial of benefits was not supported by substantial evidence. Riley v. Monark Boat Co., 269 Ark. 819, 602 S.W.2d 411 (Ct. App. 1980).

Whether or not a second lifting incident caused the hernia, or caused a reinjury or aggravation is a medical question. Humbert v. Arkansas State Hwy. & Transp. Dep't, 270 Ark. 853, 606 S.W.2d 377 (1980).

The requirement that the “physical distress” caused by a hernia “shall be shown to the satisfaction of the commission,” which applies to each of the five subdivisions of subsection (a), refers to the Workers' Compensation Commission's own standard of review, which imposes upon that body the duty of making its findings in accordance with a preponderance of the evidence. Ayres v. Historic Preservation Assocs., 24 Ark. App. 40, 747 S.W.2d 587 (1988).

Commission erred in premising denial of coverage on two inconsistent findings of fact. Bonner v. McKee Baking Co., 29 Ark. App. 1, 776 S.W.2d 364 (1989).

Workers' Compensation Commission's conclusion that appellant failed to prove by a preponderance of the evidence that he suffered a compensable hernia was reversed. Price v. Little Rock Packaging Co., 42 Ark. App. 238, 856 S.W.2d 317 (1993).

The Workers's Compensation Commission erred in failing to find the claimant's hernia compensable and refusing to award benefits where the evidence was clear that the claimant suffered severe groin pain and other related symptoms only on April 13 and such injury satisfied all of the statutory requirements for compensability, notwithstanding that the claimant reported occurrences on both April 11 and April 13, and any April 11 injury did not satisfy the statutory requirements for compensability. Cooper v. McBurney Corp., 72 Ark. App. 332, 39 S.W.3d 1 (2001).

Operation.

Workers' Compensation Act did not require either the employer or the insurance carrier to authorize an operation for hernia sustained by employee in order for liability to attach. Baker v. Silaz, 205 Ark. 1069, 172 S.W.2d 419 (1943) (decision under prior law).

Time for Filing.

One having a claim for hernia does not have to wait until some complication arises before filing his claim. Hudgens v. Southern Extrusions, Inc., 244 Ark. 470, 425 S.W.2d 718 (1968).

Claim filed approximately 18 months after disability was too late for a recurring hernia which was determined by the claimant's physician to exist approximately 6 months prior to the time of disability, disabled him from working until June, 1965. Hudgens v. Southern Extrusions, Inc., 244 Ark. 470, 425 S.W.2d 718 (1968).

Cited: Lion Oil Co. v. Reeves, 221 Ark. 5, 254 S.W.2d 450 (1952); McGehee Hatchery Co. v. Gunter, 234 Ark. 113, 350 S.W.2d 608 (1961); Abbott v. C. H. Leavell & Co., 244 Ark. 544, 426 S.W.2d 166 (1968); Bibler Bros. Lumber Co. v. Allen, 251 Ark. 593, 474 S.W.2d 116 (1971); Oak Lawn Farms v. Payne, 251 Ark. 674, 474 S.W.2d 408 (1971); Coleman's Bar-B-Que v. Fuller, 262 Ark. 645, 559 S.W.2d 714 (1978); Randall, Burkart/Randall Div. of Textron, Inc. v. Daniels, 266 Ark. 1060, 599 S.W.2d 392 (1979); Model Laundry & Dry Cleaning v. Simmons, 268 Ark. 770, 596 S.W.2d 337 (Ct. App. 1980); Hammer v. Intermed N.W., 270 Ark. 262, 603 S.W.2d 913 (1980); Weeks v. Coca Cola Bottling Co., 270 Ark. 151, 604 S.W.2d 566 (1980); Midwest Steel Co. v. Mulanax, 270 Ark. 914, 606 S.W.2d 606 (1980); Mountain Valley Superette, Inc. v. Bottorff, 4 Ark. App. 251, 629 S.W.2d 320 (1982); Vann v. Dow Chem. Co., 561 F. Supp. 141 (W.D. Ark. 1983); Crain Burton Ford Co. v. Rogers, 12 Ark. App. 246, 674 S.W.2d 944 (1984); C.J. Horner Co. v. Stringfellow, 14 Ark. App. 138, 685 S.W.2d 533 (1985); Gerber Prods. v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985); Franklin Collier Farms v. Chapple, 18 Ark. App. 200, 712 S.W.2d 334 (1986); General Indus. v. Gibson, 22 Ark. App. 217, 738 S.W.2d 104 (1987); Baldor Elec. Co. v. Jones, 29 Ark. App. 80, 777 S.W.2d 586 (1989); Arkansas Dep't of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993).