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Newby v. Century Industries, Inc.

Court of Appeals of Arkansas, Division I

October 18, 2017



          R. Vincent Morris and Kenneth J. Chitwood, Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to the Bar of the Supreme Court under the Supervision of R. Vincent Morris, for appellant.

          Spicer Rudstrom, PLLC, by: Amy C. Markham, for appellees.


         Billy Newby appeals the Arkansas Workers' Compensation Commission's adverse decision. He argues (1) that the Commission's finding that he failed to prove he sustained a compensable lower-back injury is not supported by substantial evidence and (2) that he was entitled to continued medical benefits and treatment for his compensable cervical trapezius injury. We affirm.

         I. Background

         In March 2016, Newby, who was not represented by a lawyer, testified in a hearing before the administrative law judge that he is a fifty-eight-year-old manual laborer with a high school education. The parties stipulated that an employee-employer-carrier relationship existed on or about 28 March 2012 when Newby suffered a "compensable injury to his cervical/trapezius area." During the hearing Newby explained that he was working for Century Industries, Inc. as a "catcher" in a process that involved making wooden attic ladders. As he was pulling out a stuck piece of wood, Newby felt a "a pop" and told the law judge that the pop was in his "lumbar area." He said the sensation started to worsen so he eventually went to the doctor and reported the injury to his supervisor within a few days. When asked about his deposition testimony that the "pop" was just under his shoulder blade, Newby replied, "No, I mean-which it was my shoulder. I had like almost three injuries. My lower back first, then it went from my shoulder, then my neck. So I didn't tell [a] lie."

         Newby testified that his cervical trapezius is "still a little sore and stuff, " that he takes a muscle relaxer and Tylenol for it, and that he wanted additional medical treatment. Newby also testified that he received workers'-compensation benefits while he was off work but they ended sometime in December 2012. He was terminated from his employment with Century in January 2013. According to Newby, his condition prevents him from seeking employment in his previous (and strenuous) line of work because he is still recovering from his cervical-trapezius and lower-back injuries.

         Newby's medical records were entered as evidence. Here are some relevant highlights that the Commission found based on the record before it.

         On 30 March, two days after the work-related issue, Newby presented to Dr. Lewis with right shoulder pain, among other things. There was no mention of lower-back pain and no indication that the shoulder pain was work related.

         In April 2012, Newby returned to Dr. Lewis, who diagnosed him with acromioclavicular joint sprain and placed him on restricted lifting duties. Newby then saw Dr. Covington, who examined him and noted "tender taut spasms" in his right trapezius muscles. Dr. Covington assessed a right trapezius strain and prescribed physical therapy. She also restricted Newby to fifteen pounds of lifting, pulling, or pushing.

         In May 2012, Dr. Covington noted muscle spasms in Newby's thoracic area and ordered a trigger-point injection, continued physical therapy, and continued use of a muscle stimulator. Newby did not progress in physical therapy and complained it was exacerbating his pain. A subsequent MRI showed degenerative disc disease at C5-6 and C6-7 but no acute findings. Newby continued with physical therapy and trigger-point injections.

         In July 2012, Newby received a change of physician from Dr. Covington to Dr. Lewis. Dr. Lewis noted that Newby complained of neck and back pain and "Pt cervical, thoracic & lumbar spine tender to palpation, w/muscle spasm" in September 2012.

         In October 2012, Dr. Seale performed an independent medical evaluation. The exam showed "traumatic decrease range of motion" in Newby's cervical spine and full range of motion "without pain, tenderness, signs of instability or muscle spasms" in the lumbar spine. Dr. Seale found no muscle spasms and stated that the x-rays and MRI showed only degenerative changes. Dr. Seale concluded that Newby was at maximum medical improvement and recommended a functional-capacity exam. He also concluded that Newby's impairment rating should be 0% because ...

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