Hickman v. Kellogg, Brown & Root

277 S.W.3d 591, 372 Ark. 501, 2008 Ark. LEXIS 126
CourtSupreme Court of Arkansas
DecidedFebruary 28, 2008
Docket07-680
StatusPublished
Cited by27 cases

This text of 277 S.W.3d 591 (Hickman v. Kellogg, Brown & Root) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hickman v. Kellogg, Brown & Root, 277 S.W.3d 591, 372 Ark. 501, 2008 Ark. LEXIS 126 (Ark. 2008).

Opinion

Jim Gunter, Justice.

This appeal arises from a petition for review filed by Appellee Kellogg, Brown & Root from an unpublished decision of the Arkansas Court of Appeals, Hickman v. Kellogg, Brown & Root, 372 Ark. 501, 277 S.W.3d 591 (2007), which affirmed in part and reversed in part a decision of the Arkansas Workers’ Compensation Commission (Commission). We granted Kellogg’s petition for review, and we affirm the Commission’s decision.

Appellant Ronald Hickman worked for Kellogg, the employer, as a precision millwright repairing large machinery. On April 26, 2002, while walking across some machinery, Hickman slipped on some oil and fell, hitting his right knee against a platform and falling on his back. He testified that he was “hurting all over” and noticed swelling and pain in his knee. When this injury occurred, Hickman had worked for Kellogg for less than one week.

On April 28, 2002, Hickman sought medical treatment for his injuries at Little River Memorial Hospital in Ashdown. The emergency room notes stated that Hickman complained of pain in his right knee to his foot but made no mention of back pain. Swelling was noted in the right knee, and x-rays revealed that he had severe multi-compartment osteoarthritis, but there were no findings of acute traumatic injury. He was placed on medications and went back to work where he was placed on light duty. Two days later, he sustained “another slip” and has been out of work since that time. Hickman then sought treatment at the emergency room at Morehouse General Hospital in Monroe, Louisiana. There, he relayed the April 25, 2002 injury involving the twisting of the right knee and lower back, but the emergency-room notes mentioned an old knee injury and chronic back pain.

Kellogg accepted the knee injury as compensable. On June 5, 2002, Hickman saw Dr. Sidney Bailey at the Orthopaedic Clinic of Monroe, Louisiana for both the knee injury and back pain. Dr. Bailey noted that Hickman presented with “an immobilizer on the right leg” and stated that he had pain “in his back all of the way down into his right leg.” Dr. Bailey recommended electromyography of the lower extremities and Ultracet for pain.

On June 20, 2002, Hickman was involved in a motor vehicle accident and sought emergency-room treatment for pain in his left arm, numbness in his left hand, back pain, and headaches. In Dr. Bailey’s notes, dated July 31, 2002, he noted that he did not recommend total knee replacement at that time “primarily due to the patient’s activity and age.” An MRI report, dated August 15, 2002, revealed that there was “small joint effusion” and degenerative arthritic changes within the knee. Dr. Bailey noted in a follow-up progress report that an arthroscopic debridement would have provided Hickman limited temporary relief, but he would eventually require knee replacement. In a subsequent progress report, dated September 19, 2002, Dr. Bailey noted that he would “certainly attempt to delay a knee replacement as the last option.” A CT scan of the lumbar spine, performed on October 10, 2002, revealed large disk bulges at L 1-2 and L 2-3, as well as surgical changes in the rest of the spine. Hickman later sought treatment for his back pain, and on May 28, 2003, Dr. Bernie McHugh performed back surgery, a procedure for which Kellogg accepted and paid. Kellogg terminated Hickman’s indemnity benefits on October 28, 2003.

On March 12, 2004, Hickman sustained additional, severe, closed-head injuries in a second motor-vehicle accident in which his wife was killed. Both parties stipulated that this accident did not aggravate Hickman’s back or knee, and both parties stipulated that he was not entitled to temporary total disability benefits for his work injuries between March 12, 2004, through May 25, 2004. On May 25, 2004, Dr. Earl Peeples filed an independent medical evaluation in which he stated that Hickman had a “long history of back trouble” prior to his fall in April 2002. Prior to his compensable injury, as a result of a prior accident involving a dump truck, Hickman had numerous back surgeries, a prior knee surgery, and a preexisting degenerative disease in his back and knee. In August of 2004, Hickman was evaluated for cervical problems resulting from his March 2004 automobile accident. On September 29, 2004, Hickman underwent a right total-knee-replacement surgery that Kellogg accepted and paid as compensable. Kellogg subsequently challenged the permanent impairment rating of thirty percent to the lower extremity assigned by Dr. Bailey for the knee surgery. However, Dr. Bailey agreed that, by the time of his surgery, any evidence of Hickman’s contusion from the April 2002 injury was gone.

Hickman filed a complaint with the Commission. On December 1, 2005, a hearing was held, and the parties stipulated to the following facts: (1) that the Commission had jurisdiction of the claim; (2) that the employee/employer/carrier relationship existed at all relevant times; (3) that on April 26, 2002, Hickman sustained a compensable injury to his right knee; (4) that Kellogg accepted this knee injury as compensable and paid benefits; (5) that Hickman reached the end of his healing period for both his right knee and back injuries no later than May 4, 2005; and (6) that Hickman earned wages sufficient to entitle him to a compensation rate of $425.00 for total disability benefits. At the hearing, the parties further stipulated (1) that Hickman was paid temporary-total-disability benefits through October 28, 2003; (2) that Kellogg was entitled to a credit for any temporary-total-disability payments made after October 28, 2003; (3) that Hickman earned wages sufficient to entitle him to a compensation rate of $319 for permanent partial disability benefits; (4) that Hickman was involved in a motor-vehicle accident on March 12, 2004; and (5) that from March 12, 2004, through May 25, 2004, the motor-vehicle accident was an independent intervening cause such that Hickman would not be entitled to temporary-total-disability benefits for that two-month period of time. On January 25, 2006, the administrative law judge (ALJ) entered an order finding that Hickman had proven by a preponderance of the evidence that he sustained permanent impairment of 30% to the knee; that he proved entitlement to permanent-partial disability benefits of 30% for his knee; that his healing period for his knee began on October 28, 2003, and ended on May 4, 2005; that he failed to prove his compensable injury was the major cause of his permanent disability; and that he failed to prove he sustained a compensable back injury. Kellogg appealed the decision of the ALJ.

On October 6, 2006, the Commission ruled that Hickman failed to prove that his compensable injury was the major cause of the necessary knee-replacement surgery and subsequent 30% impairment rating assigned by Dr. Bailey. The Commission also determined that Hickman failed to prove that he was totally and permanently disabled as a result of any compensable injury. Hickman appealed the Commission’s decision to the Arkansas Court of Appeals.

In Hickman, supra, the court of appeals reversed the portion of the Commission’s order denying permanent-partial-disability, temporary-total-disability, and permanent-total-disability benefits and remanded for further proceedings in light of the parties’ stipulations. The court reasoned that because the parties had stipulated that Hickman’s knee injury was compensable, Kellogg could not avoid responsibility for the surgery and the impairment rating.

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Bluebook (online)
277 S.W.3d 591, 372 Ark. 501, 2008 Ark. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hickman-v-kellogg-brown-root-ark-2008.