Mulligan, 081617 ARWC, G700118

• Case Date: August 16, 2017
• Court: Kansas

PATRICK MULLIGAN, EMPLOYEE CLAIMANT CITY OF LONOKE, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE WORKERS’ COMPENSATION TRUST, INSURANCE CARRIER/TPA RESPONDENT No. G700118 Arkansas Workers Compensation Before the Arkansas Workers’ Compensation Commission August 16, 2017          Hearing conducted before ADMINISTRATIVE LAW JUDGE MARK CHURCHWELL, in Pulaski County, Arkansas.           The claimant was represented by HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.           The respondents were represented by HONORABLE JARROD PARRISH, Attorney at Law, Little Rock, Arkansas.           MARK CHURCHWELL ADMINISTRATIVE LAW JUDGE.          STATEMENT OF THE CASE          A hearing was held in the above-styled claim on June 13, 2017, in Little Rock, Arkansas. A Prehearing Order was entered in this case on March 28, 2017. The following stipulations were submitted by the parties and are hereby accepted:

1. The employee/employer/insurance carrier relationship existed on or about December 21, 2016.

2. The claimant’s average weekly wage of $923.20 at the time of injury entitles him to indemnity rates of $615.00/$462.00 if this claim is found compensable.

3. The respondents controvert this claim in its entirety.

         By agreement of the parties, the issues to be litigated and resolved at the present time were limited to the following:

1. Compensability of alleged specific incident low back injury.

2. Temporary total disability from December 30, 2016, to a date yet to be determined, and any appropriate offset under Arkansas Code Annotated section 11-9-506 for unemployment benefits that Mr. Mulligan has received.

3. Medical.

4. Attorney’s fees.

         The record consists of the June 13, 2017, hearing transcript and the exhibits contained therein.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. The claimant has established by a preponderance of the evidence that he sustained a compensable injury to his lower back on December 21, 2016.

2. The claimant has established by a preponderance of the evidence that the medical treatment provided by Dr. Sherri Carter-Wyatt and by Dr. Richard Heck, and the lumbar MRI proposed by Dr. Heck, are all reasonably necessary to treat the claimant’s compensable injury.

3. The claimant has failed to establish by a preponderance of the evidence that he is entitled to any period of temporary disability compensation between December 30, 2016, and the date of the hearing conducted on June 13, 2017.

         DISCUSSION          The claimant, Patrick Mulligan, became the chief of police for the City of Lonoke on or about January 27, 2016. (T. 81) Mr. Mulligan remained the chief of police until the Mayor of Lonoke, Wayne McGee, advised Mr. Mulligan on December 22, 2016, that the City Counsel had decided to let Mr. Mulligan go. (T. 190)          In this claim for workers’ compensation benefits, Mr. Mulligan contends that he injured his lower back on the evening of December 21, 2016, while assisting a fellow city police officer, John Warren, move a citizen’s electric wheelchair from a Lonoke street to the citizen’s residence. (T. 83-84) Mr. Mulligan testified that he felt a pop in his back when the two officers lifted the electric wheelchair into the back of Mr. Mulligan’s truck. (T. 84) Mr. Mulligan has seen a physician on two occasions for his back since that incident. (Cl. Exh. 1 p. 1-14) In the present claim, Mr. Mulligan seeks an award of temporary disability compensation from December 30, 2016, to a date yet to be determined, an award of medical treatment, and attorney’s fees. (Comm. Exh. 1 p. 2) The respondents contend that Mr. Mulligan suffered from preexisting degenerative issues with his lower back and did not suffer a compensable work-related injury on December 21, 2016. (Comm. Exh. 1 p. 2-3)          Issue 1: Evidentiary Objections          On page 19 of the hearing transcript, Mr. Davis objected to Mr. Parrish asking a witness called by Mr. Davis - Officer Dale Peters of the Sherwood Police Department -the nature of a conversation that Officer Peters had before the hearing with Mr. Davis. Mr. Davis objected on the grounds that the conversation was “work product.”          The Arkansas Supreme Court has previously explained regarding the admissibility of evidence in Workers’ Compensation hearings in St. Paul Ins. Co. v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980):

First, the compensation law provides that the Commission is not bound by technical rules of evidence or procedure, but may "conduct the hearing in a manner as will best ascertain the rights of the parties." [Citation omitted]. Professor Larson discusses at length the cases construing such provisions in workers' compensation statutes. He concludes that the factfinders are expected to adhere to basic rules of fair play, such as recognizing the right of cross examination and the necessity of having all the evidence in the record. On the other hand, a compensation commission undoubtedly has expertise much superior to that of a jury in the weighing of testimony and should therefore be left to determine the probative value of hearsay testimony and other proof that might not be admissible in a court of law. Larson, Workmen's Compensation Law, 79.00 and 79.80-79.84 (1976)....

         In the present case, even if the Commission were bound by the technical rules of evidence, this examiner can identify no rule of evidence that would render privileged an attorney’s out of court communications with a fact witness called to testify at a hearing. See ARE 501-512. Absent any guidance to the contrary, I find that the basic rules of fair play should permit one party to inquire into the out-of-court communications between the opponent’s attorney and the...