Newby v. Century Industries, Inc.

2017 Ark. App. 527, 530 S.W.3d 386, 2017 Ark. App. LEXIS 610
CourtCourt of Appeals of Arkansas
DecidedOctober 18, 2017
DocketCV-17-162
StatusPublished

This text of 2017 Ark. App. 527 (Newby v. Century Industries, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Newby v. Century Industries, Inc., 2017 Ark. App. 527, 530 S.W.3d 386, 2017 Ark. App. LEXIS 610 (Ark. Ct. App. 2017).

Opinion

BRANDON J. HARRISON, Judge •

11 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 trapezi-us 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 receivéd 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 thé' shoulder pain was work related.

| sIn April 2012, Newby returned to Dr. Lewis, who diagnosed him with acromio-clavicular 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 tra-pezius 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 trig-gér-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 iumbar 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 there were no objective findings of acute injury, no disc protrusions or fractures—there were only preexisting degenerative changes.

-LNewby’s 27 November 2012 fuhctionál-capacity exam showed that his efforts were unreliable and that he had “numerous signs of inconsistent effort including participation in a series of tests to identify the presence of non-organic signs of low back pain.” In December 2012, Newby went to UAMS’s emergency department with' severe muscle spasms in his back and shoulder and reportedly'said that he was out of hydrocodone. Records from Century show that temporary total-disability benefits to Newby ended after 18 December 2012.

Dr.. Lewis assessed Newby as having lumbago (low-back pain) in January 2013, and a later May 2014 lumbar MRI showed “a mild diffuse disc bulge at L4-5 with central annual tear and minimal inferior migration of a centralized extrusion” and a “broad-based disc protrusion . at L5-S1 with central annular tear.”

A June 2014 cervical MRI showed degenerative disc disease at C5-6 and C6-7. Dr. Lewis’s examination noted that Newby complained of pain in his right shoulder, neck, and his back. Dr. Lewis stated that his neurological examination was normal and that. Newby could perform all the functions of the neck and the arms and had full range of motion in the lower back. Dr. Lewis gave Newby a 1% rating mainly due to his chronic pain.

The law judge found that Newby did not prove by a preponderance of the evidence that he suffered a compensable injury to his lower back; nor did he prove that he was entitled to reasonable and necessary treatment of his alleged lower-back injury. As to Newby’s compensable cervical-tra-pezius injury, the law judge found that he had not established that he was entitled to additional medical treatment or additional temporary total-disability benefits. Newby was not entitled to a permanent-impairment rating relating to his alleged 1 Jower-back injury or his compensable cervical-trapezius injury. The Commission adopted the law judge’s opinion (2-1) in January 2017. Newby appeals the Commission’s decision to this court.

II. Discussion

On- appeal, this court views the evidence , and all reasonable inferences in the light most favorable to the Commission’s decision and affirms that decision when it is supported by substantial evidence. Wilhelm v. Parsons, 2016 Ark. App. 56, 481 S.W.3d 767. The Commission determines where the preponderance of the evidence lies. Id. Substantial evidence is evidence that- a reasonable mind might- accept as adequate to support a conclusion. Id. There may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we had sat as the trier of fact or heard the case de novo. Id. It is exclusively within the province of the Commission to determine the credibility and the weight to be accorded to each witness’s testimony. Id. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id.

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Bluebook (online)
2017 Ark. App. 527, 530 S.W.3d 386, 2017 Ark. App. LEXIS 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newby-v-century-industries-inc-arkctapp-2017.