Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Greene County Judge v. Penny

Court of Appeals of Arkansas, Division IV

November 20, 2019

GREENE COUNTY JUDGE AND ASSOCIATION OF ARKANSAS COUNTIES RISK MANAGEMENT SERVICES APPELLANTS
v.
RICK L. PENNY APPELLEE

          APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NOS. G801022 & G802107]

          Jason M. Ryburn, for appellants.

          Wells & Wells PLLC, by: Phillip Wells, for appellee.

          KENNETH S. HIXSON, Judge

         Appellants, 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.[1] 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.

         I. Relevant Facts

         Penny 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.

         On 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 room.

         Shannon 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.

         The 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."

         Penny 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 listed:

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 sciatica."

         Subsequently, 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 positive bilaterally.
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 assessment:

Impressions: Large right paracentral L4-5 disc herniation with high-grade spinal stenosis, as ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.