GREENE COUNTY JUDGE AND ASSOCIATION OF ARKANSAS COUNTIES RISK MANAGEMENT SERVICES APPELLANTS
RICK L. PENNY APPELLEE
FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NOS.
G801022 & G802107]
M. Ryburn, for appellants.
& Wells PLLC, by: Phillip Wells, for appellee.
KENNETH S. HIXSON, Judge
Greene County Judge (employer) and Association of Arkansas
Counties Risk Management Services (insurance carrier)
(collectively appellants), appeal from an April 18, 2019,
opinion by the Arkansas Workers' Compensation Commission
(Commission) affirming in part and reversing in part the
findings of fact and conclusions of law made by the
administrative law judge (ALJ) in favor of appellee, Rick L.
Penny (sometimes referred herein as claimant). The Commission
unanimously determined that Penny did not prove that he
sustained a gradual-onset back injury in 2017. However, the
Commission did find that Penny sustained a compensable injury
on February 6, 2018; that the medical treatment of record on
and after February 6, 2018, was reasonable and necessary;
that Penny was entitled to temporary total-disability
benefits from February 6, 2018, until June 1, 2018; and that
Penny's attorney was entitled to attorney's fees.
Appellants argue that substantial evidence does not support
the Commission's decision. We affirm.
testified that he was first employed by the employer in 2007
in the Greene County Road Department as a truck driver and
excavator operator until his first period of employment ended
in September 2009. Penny testified that his work entailed
"a lot of jarring and shaking, climbing on and off the
machine. They're not exactly the easiest riding machines
that you've ever ridden." Penny further testified
that he was employed a second time by the employer in April
2011 as a "[t]ruck driver, excavator, dozer, run the
grader some, just equipment operator." He described his
work as very physically demanding. In 2017, the department
acquired new trucks that Penny stated rode
"rougher" than a normal truck.
February 6, 2018, Penny alleged that he sustained a
specific-incident compensable injury.
February 6, it was a Tuesday morning and I'd hauled two
loads of chaff, cut through the yard and loaded it with the
loader, put it in my truck and took it to dump it. I was on
the third load and I went in, loaded it, was coming down out
of the loader and stepped down with my right foot and when my
left foot hit the ground, I buckled to my knees in
excruciating pain and I couldn't move at that time and I
sat there. . . . I tried to stand up. . . . I sat there a
minute and I crawled around to the back of the loader, pulled
myself up just a little bit, because I heard a truck coming
and I went to waving and when I waved, I waved down Shannon
Anthony, the road foreman, and he come over and helped me in
the truck and took me to the hospital. . . . He took me to
the hospital and we met with Dave Tierney at the emergency
Anthony, the road foreman, and Dave Tierney, the road
superintendent, corroborated Penny's testimony. Anthony
testified that Penny appeared to be in severe pain and had
trouble standing. Therefore, Anthony took Penny to Arkansas
Methodist Medical Center as Tierney instructed.
medical record indicates that Dr. Michael W. Jarman,
Penny's chiropractor, began treating Penny in July 2010
for hip pain and lumbar pain. On July 19, 2010, Dr. Jarman
noted, "Muscle spasm was present along the right lumbar
paravertebral region, extending into the right sacral and
right pelvic region." Penny had two follow-up
appointments with Dr. Jarman on July 21, 2010, and July 22,
2010. Subsequently, Dr. Jarman treated Penny on April 26,
2016, and May 11, 2017, but he did not report muscle spasms
on either date. On September 25, 2017, Dr. Jarman diagnosed
Penny with "Somatic Dysfunction of the lumbar spine
associated with Sciatic Neuritis affecting the lower right
extremity." He noted that muscle spasms were present at
L5 on the right. Dr. Jarman provided ongoing treatment, which
consisted of spinal manipulation and lumbar traction. On
September 27, 2017, Dr. Jarman noted muscle spasms
"along the right lumbar paravertebral region, extending
into the right sacral and right pelvic region." Penny
continued to see Dr. Jarman on several subsequent visits, and
an MRI was taken of Penny's lumbar spine on November 7,
2017, which indicated "[d]iscogenic degenerative change
at L/3-4, L/4-5. Disc herniation, acquired spinal stenosis
L/4-5 with a disc fragment, spinal stenosis 7.2mm. Fragment
paracentral on the right at L/4-5."
was treated at Arkansas Methodist Medical Center on February
6, 2018, after his alleged specific-incident injury.
According to the clinical report, the following history was
Chief Complaint: BACK PAIN. It is described as being moderate
in degree and in the area of the left lower lumbar
spine and left SI joint and radiating to the
left thigh and left buttock. The quality is
noted to be sharp. Onset - has chronic back pain but worse
today; Patient states he stepped down off excavator and
states he has had pain to left lower back since, and
it is still present. It was abrupt in onset. No bladder
dysfunction, bowel dysfunction, sensory loss or motor loss.
(Emphasis added.) The clinical impression indicated
"[c]hronic nontraumatic lumbar back pain (INTRACTABLE).
Herniated disc (nontraumatic) at the lower lumbar level with
Penny was transported to Baptist Memorial Hospital in
Memphis, Tennessee, for further care. Dr. Ashutosh Kumar
Mishra examined Penny on February 7, 2018, at the hospital.
He noted the following in pertinent part:
Lower lumbar spine, bilateral moderately
severe muscle spasm, reduction of movement,
tenderness in bilateral sacral sciatic notch. SLR
ASSESSMENT: Bilateral low back pain with sciatica
with displacement of intervertebral disk of lumbar region
with muscle spasm.
(Emphasis added.) Thereafter, an MRI was taken on February 8,
2018, and the report stated the following impressions and
Impressions: Large right paracentral L4-5 disc
herniation with high-grade spinal stenosis, as