{"id":"alj-G708180-2023-10-27","awcc_number":"G708180","decision_date":"2023-10-27","opinion_type":"alj","claimant_name":"Clint Vick","employer_name":"Mcgehee Housing Authority","title":"VICK VS. McGEHEE HOUSING AUTHORITY AWCC# G708180 OCTOBER 27, 2023","outcome":"dismissed","outcome_keywords":["dismissed:2","denied:1"],"injury_keywords":["back","shoulder","hip"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/VICK_CLINT_G708180_20231027.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"VICK_CLINT_G708180_20231027.pdf","text_length":29650,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No G708180 \n \nCLINT A. VICK, EMPLOYEE        CLAIMANT \n \nMcGEHEE HOUSING AUTHORITY, EMPLOYER             RESPONDENT No 1 \n \nAR MUNICIPAL LEAGUE-WCT, TPA                   RESPONDENT No 1 \n \nDEATH & PERMANENT TOTAL DISABILITY \nTRUST FUND                 RESPONDENT No 2  \n \n \nOPINION FILED 27 OCTOBER 2023 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative  Law \nJudge JayO. Howe on 27 April 2023 in McGehee, Desha County, Arkansas. \n \nMr. Daniel A. Webb, Attorney-at-Law, in Little Rock, Arkansas, appeared for the claimant. \n \nMs. Mary K. Edwards, Attorney-at-Law, in North Little Rock, Arkansas,  appeared for the \nrespondents #1. \n \nMs. Christy L. King, Attorney-at-Law, in Little Rock, Arkansas, appeared for respondent #2. \n \nI.  STATEMENT OF THE CASE \n \nThe  above-captioned case was  heard  on 27 April 2023 in McGehee,  Arkansas,  after \nthe  parties  participated  in  a  prehearing  telephone  conference  on 27 December 2022. A \nPrehearing Order, admitted to the record without objection as “Commission’s Exhibit No 1,” \nwas  entered  on 28 December 2022. The  Order  stated that the ISSUE  TO  BE  LITIGATED \nwas compensability. All other ISSUES were reserved. \nThe Prehearing Order set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/carrier relationship existed between the parties on 11 October \n2017, when the claimant was involved in a motor vehicle accident. \n \n\nC. VICK- G708180  \n2 \n \nThe following WITNESSES  testified at  the  hearing:  the  claimant  and  Mr.  James \nValentine, the claimant’s supervisor. \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire responses, \nwere incorporated by reference into the Prehearing Order and were as follows: \nThe  claimant  CONTENTDS that  he  suffered  compensable  injuries  on  11  October  2017 \nand that he is entitled to associated benefits.  \nRespondent No 1 CONTENDS that the claimant was not performing employment services \nat the time of the motor vehicle accident. Prior to the presentation of evidence at the hearing \non this matter, Respondent No 1 added that they contend, in the alternative, that the claimant \ncannot prove objective medical findings to support finding a compensable injury associated \nwith the October 2017 motor vehicle accident. \nRespondent No 2 CONTENDS that if the claimant is found to be permanently and totally \ndisabled, it will comply with ACA § 11-9-502. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witnesses, \nobserving their demeanor, I make the following findings of fact and conclusions of law under \nACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The  claimant failed  to  establish  by  a  preponderance  of  the  evidence  that  he was \nperforming employment services at the time of the motor vehicle accident. \n \n3.  Accordingly, his claim is dismissed. \n \nIII.  HEARING TESTIMONY and MEDICAL EVIDENCE    \nA. Claimant on Direct Examination  \nMr.  Clint  Vick  testified  that  he  was  forty-two  years  old  and  that  he  had  lived  in \nMcGehee for his entire life. He worked for the McGehee Housing Authority (Respondent No \n\nC. VICK- G708180  \n3 \n \n1)  at  the  time  relevant  to  this  matter.  [TR  at  11.] The  claimant  worked  on-and-off  for  the \nrespondents prior to this incident. [TR at 12.\n1\n] He appeared to state that his primary role was \nreplacing subflooring at properties owned by the Housing Authority [TR at 13], but went on \nto say that he did “just any and all things possible that you – you could possibly imagine... \nand I would do some plumbing work, you know.” [TR at 14.]  \nIt is not disputed that the claimant left the job site on 11 October 2017 and was in an \naccident  on the roadway  near  the  job  site on the way  back. When pressed on the “point of \nleaving” that day, the claimant offered: \nA:    Because  they  don’t  have  tools.  They  don’t  have  tools.  It’s  an \nimpoverished part  of  our  community  and  everything  is  locked  up  and \nwhat’s locked up isn’t much, so I had—I have to bring my own tools to \nwork and – \n \nQ:  So what were you going to get when you left the job site? \n \nA:    I  was  going  to  get  my  plumbing  bag,  because  they  had  so  many \nroaches that you can’t leave that like in your house or anything. I have \nto leave it outside by a shed and I won’t bring it in my home. And the \ngentleman I was working with that I was told to keep a eye on and make \nsure he had material, he had came to me and told me that he needed – \n \n. . .  \n \nWell,  we  were  going  to  pick  up  the  sheetrock  material  and  plumbing \ntools basically. \n \nQ:  Okay. What did you need the materials for? \n \nA:  A basin – a basin wrench, it’s about this big, and it’s only good for \none thing and that’s taking the bottom of a sink, the big basket. It’s a \nspecialty tool.  [TR at 17-18.] \n \n1\n Claimant’s counsel stopped the claimant early in his examination to admonish that he should, “[j]ust \nanswer my questions and then move onto the next one, okay?” He soon interjected again, stating, “I’m \nsorry, Your Honor... I don’t want to interrupt, but he—he doesn’t have a... Clint, you’ve got to stop \nafter you answer the questions [or we will] end up with a record that just goes on forever.” See TR at \n15. \n\nC. VICK- G708180  \n4 \n \n According to the claimant, who stated that his memory was refreshed by reviewing \nthe police report from the crash, he left sometime around 1:00 PM that day. [TR at 19.] When \nasked if he was directed by the foreman to leave, he answered: \n A:  That morning – and please tell me if this is hearsay – each morning that we worked \ntogether, he and I delegate what jobs, who’s going to do what, and before I leave the premises, \nI’d call him and tell him where I’m going to be, if an emplolyee a coworker is going with me \nto pick up material or tools where they’re going to be, and then we’ll confirm if he needs to \nget  the material  and  if I  need  to  go  get the  tools,  then we meet right back  up  at the  same \ntime. That way we’re not missing a beat. \nQ:  So – so you left the job site in your vehicle to get the wrench. Was \nthere anything else you were going to get? \n \nA:  Yeah. My entire tool bag that’s sitting outside because I didn’t want \nroaches. \n \nQ:    Okay.  And  do  you  remember  what  was  in  the  tool  bag  that  you \nneeded besides the wrench? \n \nA:  The terminology for it would be flux, but layman’s terms is pipe dope, \nand it seals off things like that.  [TR at 19.] \n  \nThe claimant went on to explain that his tool bag was at a shed at his mother’s house \nand that “I didn’t even get out of the vehicle. I had my coworker go grab that up and put it \nback in the truck and went back to work.” [TR at 20.] The claimant denied buying lunch or \nmaking other stops while away from the job site. \n When  asked  if  the  work  crews  took  regular  lunch  breaks,  the  claimant  began \nanswering with, “In truth, they hire people. I don’t want to hearsay, but--.” His counsel \nadmonished, “Answer the question. Had you been taking lunch breaks on a regular basis?” \nIn response, Mr. Vick explained, “I’d been paying for everybody’s lunch, and since the time \nI’ve been there, I’ve been paying for every single person’s lunch, every single lunch... No, we \n\nC. VICK- G708180  \n5 \n \nhad  not  took  lunch,  and  it  was—I  went—I  was  losing  more  money  on  this  job  than  I  was \nmaking.” [TR at 21.] \n Inconsistent with his  earlier  statement  about  a  coworker  getting  the  tool  bag  and \nputting it in the truck before returning to work, Mr. Vick then said that nobody else was in \nhis vehicle when the accident occurred: \nQ:    All  right.  So  you  go  the  materials,  the – the  pipe  dope  and  the \nwrench. Was there anybody else in your car with you? \n \n A:  No, sir. \n \n Q:  Okay. And then were you headed back to the job? \n \n A:  Yes, sir.  \n \n Q:  And did – and did you get in a car accident? \n \n A:  Yes. Would you like me to... \n \n Q:  Well, you did. You said “yes.” That’s what I asked you. \n \n A: Yes, sir. \n \nQ:  Okay. That’s all I needed—You know, just answer the question.  [TR \nat 21-22.]  \n \nThe claimant stated that his vehicle was struck from behind while waiting to make a \nturn towards the job site. [TR at 22.] \n According to the claimant, he exited the vehicle after the collision and passed out. [TR \nat 24.] He said that the wreck hurt his back and groin. [TR at 25.] Mr. Vick was transported \nto the local emergency department via ambulance. [TR at 26.] After discharge, he eventually \nfollowed up with his primary care provider and then another provider who ordered an MRI \non 2 November 2017. [TR at 28.] \n Mr. Vick went on to describe ongoing pain in his  back and shoulder and his groin and \nhip. [TR at 29-32.] He stated that he presented for physical therapy, but was advised against \ntreatment  there.  [TR  at  33.]  He  explained  that  he  saw  several  different  providers, \n\nC. VICK- G708180  \n6 \n \nexperienced ongoing hip and back, that he can “bend over and tie a shoe about once, twice a \nweek without pain,” and that he eventually had surgery with Dr. O’Malley on  his  hip  and \nlower torso. [TR at 36-37]. When asked to “keep this simple” and tell what he injured in the \n11 October 2017 accident, he responded: \n Okay. It was the lower right – It was more or less the lower right side \nof my back initially... And on over—after a wreck, you know, you expect to be \na little bit sore the following day, but it didn’t dissipate like previous. My \nshoulder,  I  felt – Well,  I  had  a  torn  rotator  cuff  in  my  shoulder  and  I  had  a \npreexisting injury in my shoulder, but it wasn’t like this. I can’t have surgery \nuntil they said I get a letter from a judge stating that I have a workman’s comp \nclaim. They won’t even touch me. So my groin still to – the rest of my life, that’s \nnot ever – If it was going to get better, it would have been better by now, and I \nknow that, and that is – and speaking in a – I don’t know how to say this in a \n– in a nice way – it affects the way I walk. I wear my shoes out a certain way \nlike the – everything. I walk differently. I can’t sleep. You can’t lay on your – \nyou’ll toss and turn, insomnia. I went from wheelchair, crutches, to urinating \non myself for – trying to get to the restroom for months and fighting with this.  \n[TR at 38-39.] \n \n The  claimant  described  other  previous  injuries  or  conditions  and  frustration  with \navailable treatment options, stating, with regard to his pain, that “a pain clinic masks what’s \ngoing on, and sometimes you need to know what’s going on.” [TR at 42.] Before  his  direct \nexamination closed, the claimant stated that the accident also caused worsening pain in his \nleft hip, which was already giving him trouble from previous, unrelated injuries. [TR at 43.]  \n B.  Claimant on Cross Examination by Ms. Edwards \n Mr.  Vick  corrected  an  earlier  misstatement  and  confirmed  that  Daniel  Garner, \nanother employee, was in his vehicle at the time of the accident. [TR at 46-47.] According to \nthe claimant, Mr. Garner needed some sheetrock and some trowels or a trowel to complete \nsomething he was working on at the job site. The claimant went on to explain that he kept a \n\nC. VICK- G708180  \n7 \n \nsecond timecard while working for the respondents “because they’d cheat us out of our hours \nevery two weeks.” [TR at 48.]\n2\n  \n The  claimant  confusingly  testified  back-and-forth again on  whether  the  employees \ntook  lunch  breaks,  seeming  to  settle  his  position  on  the  workers  not  taking  lunch  breaks \nbecause he could not personally afford to buy lunch for everyone every day. [TR at 50.] When \nasked by the respondents’ counsel about the “L” notation and time deduction on the time \ncards admitted into the record (see Resp. Ex. No 2 at 1-4), the claimant attacked the credibility \nof the evidence, saying that he and his son were not paid for working past midnight because \n“Human Resources left at 5:00.” [TR at 51.] “We never seen the time card ‘til the next—the \nfollowing morning,” he said. [TR at 52.] \n Mr. Vick confirmed that he did not return to work for the respondents and that he had \nnot undertaken any substantial work since the accident. [TR at 53.] He stated that he had \nnot looked for or applied for any work. The claimant stated that he was unable to drive and \nthat his supervisor Mr. Valentine, who had hired him to work for the respondents, had driven \nhim to a previous hearing on this matter in Little Rock. [TR at 54.] \n After  a  series  of  questions  and responses  about whether  or  how  employees  could or \nshould  go  about  getting  tools  and  materials  from the  local  lumber  store,  the  claimant  said \nthat he had Mr. Valentine’s permission to get whatever tools or materials he and/or Dan \nGarner needed. [TR at 66.] He said that he drove his vehicle because he was not allowed to \ndrive the employer’s work truck. The claimant also said that they “had already finished \npicking up the tools by the time that [they] were in the auto accident.” [TR at 66-67.] \n The claimant reviewed with counsel some of his past health complaints and medical \nrecords and discussed his past pain management treatment. [TR at 73.] He acknowledged a \n \n2\n It is difficult to ascertain from the record, but during cross examination, the claimant produced what \nhe purported to be his duplicate timecard during the questioning. It was not offered into evidence. \n\nC. VICK- G708180  \n8 \n \npositive drug test result, but disagreed that he was discharged from care. [TR at 74.] He then \nrecalled  being  released  by  the  providers  from  one  program  and  withdrawing  himself  from \nanother. Mr. Vick offered that he was not treating at the time of the hearing. [TR at 75.]  \nC.  Examination of James Valentine \nMr. Valentine stated that he had known the claimant for “twenty-some years.” [TR at \n77.] He was in his second year of employment with the Housing Authority at the time relevant \nto this claim. [TR at 78.] The witness recalled being the claimant’s supervisor on the day of \nthe accident and thought that Mr. Vick was working on some plumbing that day. He testified \nthat Mr. Vick could leave the job site and that it was common for people to use their own tools \non the job. [TR at 79.] According to Mr. Valentine, he did not know of the claimant’s plans, if \nany, for lunch on the day of the accident. [TR at 80-81.] It was not uncommon for the claimant \nto leave for materials in his vehicle. [TR at 82.]  \nThe witness recalled the scene of the accident and thought that the claimant had been \nworking for the respondent for a couple of months around that time. [TR at 84.] He also said \nthat Mr. Vick was a good worker. [TR at 85.] \nOn cross-examination, Mr. Valentine explained the organization structure at the work \nsite, with Kenny Gober being the “overseer of everything” and Melissa Gober working as the \naccountant who “also helped with some other things.” Recalling some others on the job, Mr. \nValentine had trouble remembering someone’s name. The witness and the claimant were \ninstructed  not  to  communicate  while  the  examination  was  underway.\n3\n [TR  at  86.] Mr. \n \n3\n The interaction is captured on the record, but without clear indication of to whom I was speaking. \n“Don’t look at him” was directed to the witness, while “[you] don’t look at him and don’t respond [in \nthe] affirmative” was directed to the claimant, who was attempting to communicate from counsel’s \ntable. I admonished, “he had to sit outside. You can’t let him know if he’s saying something right.” See \nTR at 86. Still, the claimant continued, “may I add, I have worked with him several times on and off, \nso.” \n\nC. VICK- G708180  \n9 \n \nValentine confirmed that the two touched base most mornings so that each knew what the \nother would be working on. [TR at 87.] \nMr. Valentine said that he asked the claimant to get whatever he needed for that day’s \nwork. When the respondents’ counsel brought up a note from 2017 that stated otherwise, he \nsaid that getting tools “was discussed.” [TR at 88.] When pressed further on whether he told \nthe claimant “I need you to do this,” he was uncertain, asking counsel, “It’s kind of understood \nif we discussed it, right?” She disagreed, and the witness responded, “I’m not sure how to \nanswer this.” He said that he believed that he told the claimant to go get the tools. \nQ:  So this happened six years ago, right? And I just noticed that you \nlooked at him. So this happened six years ago, right? \n \nJudge:  Don’t [look for an answer from the claimant]—talk to her [Ms. \nEdwards]. \n \nA:  Ma’am, this happened six years ago. \n \nQ:  Okay. That’s what I’m asking. Okay. So is it possible that you don’t \nremember the context, the entire context of the conversation that y’all \nhad? Is it possible? \n \nA:  Yes, ma’am, it could be possible. \n \nQ:  Okay. So I also have a note that back in 2017, that you stated that \nMr. Vick was on lunch at that time, and you’re saying that’s not true? \n \nA:  Yes, ma’am. I—He was not on lunch, no, ma’am. \n \nQ:  Okay. \n \nA:  May—can I – May I see this statement that I—  [TR at 89.] \n  \nThe witness went on to affirm that he and Mr. Vick had known each other for 20 years \nand that he had asked Mr. Vick to come work at the Housing Authority. [TR at 90.] \n After some questions about materials and getting tools to the job site, Ms. Edwards \nasked if in the past, Mr. Valentine recalled asking Mr. Vick to bring his tools to the job site. \nHe  said  that  he  did  not  recall.  [TR  at  94.] When  asked about  the  company  truck, Mr. \n\nC. VICK- G708180  \n10 \n \nValentine said he wasn’t sure whether Mr. Vick was allowed to drive it.\n4\n If Mr. Vick provided \ntransportation  for  other  employees  to  and  from  work,  that  would  have  been  of  his  own \nchoosing, as “it was their responsibility to get there.” [TR at 96.] \n At the conclusion of Mr. Valentine’s testimony, all  parties  indicated  the  close  of \nevidence. No  additional  witnesses  were  called.  I  reminded  Mr.  Webb  that  his  objection  to \nRespondents’ Exhibit No 2 at 16, a letter from Brooke Cingolani, was noted and that that my \nopinion would address the issue. He did not add to his earlier objection based on any other \nthe testimony or other evidence on the record. Mr. Vick attempted to go on as his attorney \nleft: \nClaimant: May I just say that y’all— \n \nJudge:  No. That’s—your’e— \n \nClaimant: — y’all—I mean, I’m just going to tell you, y’all—that was—\nI mean, that was—I’ve never been in— \n \nJudge:  All right. Well, I don’t know if your lawyer wants you to provide \nany narration. \n \nClaimant:  I’m just saying, y’all—well, I mean— \n \nJudge:  ... you’re not called as a witness at the moment, so let’s cut that \nout. I’m sure he’ll thank you for—whatever.  With  that,  the  case  is \nsubmitted, so we’re off the record.  [TR  at  98-99.]  There,  the  record \nended. \n \nIV.  ADJUDICATION \n The  stipulated facts are  outlined  above. It  is settled that  the  Commission, with the \nbenefit of being in the presence of a witness and observing his or her demeanor, determines \na witness’ credibility and the appropriate weight to accord their statements. See Wal-Mart \nStores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999). The Commission must \n \n4\n Mr. Vick was reminded again from the bench to avoid attempting to coach an answer: “Try not to be \nresponsive. You were kind of shaking your head a little bit. Don’t do that.” See TR at 94. \n\nC. VICK- G708180  \n11 \n \nsort through conflicting evidence and determine the true facts. In so doing, the Commission \nis not required to believe the testimony of the claimant or any witness, but may accept and \ntranslate into findings of fact only those portions of the testimony that it deems worthy of \nbelief. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). It is further \nsettled that a party’s testimony is never considered uncontroverted. Nix  v.  Wilson  World \nHotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). \nA.  The Claimant Failed to Prove by a Preponderance of the Evidence that he Suffered \na Compensable Injury. \n \nUnder Arkansas’s Workers’ Compensation laws, a worker has the burden of proving \nby a preponderance of the evidence that he sustained a compensable injury as the result of a \nworkplace incident. Ark. Code Ann. § 11-9-102(4)(E)(i). In order for an accidental injury to be \ncompensable, it must arise out of and in the course of employment. Ark. Code Ann. § 11-9-\n102(4)(A)(i). A  compensable  injury  does  not  include  an  injury  that  is  inflicted  upon  the \nemployee at a time when employment services are not being performed. Ark. Code Ann. § 11-\n9-102(4)(B)(iii). Neither “in the course of employment” nor “employment services” are clearly \ndefined in the Workers’ Compensation Act, so it has fallen on the courts to frame those terms \nin  a  way  that  neither  broadens  nor  narrows  the  scope  of  the  Act. Texarkana  Sch.  Dist.  V. \nConner, 373 Ark. 372, 284 S.W.3d 57 (2008). \nEmployment services are generally considered those things that an employer requires \nof its employees. Pfifer v. Single Source Transp., 3247 Ark. 851, 69 S.W.3d 1 (2002). The test \nfor  whether  an  employee  is  acting  within  the  course  and  scope  of  his  or  her  employment \nusually  involves  considering  whether  an  employee  is  directly  or  indirectly  advancing  an \nemployer’s interest at the time a thing is being done. Jivan v. Econ. Inn & Suites, 370 Ark. \n414, 260 S.W.3d 281 (2007). \n\nC. VICK- G708180  \n12 \n \nThis  case  turns  primarily  on  whether  the  claimant  was  acting  in  the  course  of \nemployment or performing employment services at the time of the car accident. I find it more \nlikely than not that he was acting outside of the course of his employment at the time of the \naccident and that he, thus, cannot prove a compensable injury related thereto. \n My  finding  is  not  tied  to  any particular previously  litigated pattern  of  behavior \nreviewed by and then found by our courts to be or not be, for the purposes of the Arkansas \nWorkers’ Compensation Act, working behavior. I am mindful, though, that many past cases \noffer guidance. See, e.g., Shelton v. Qualserv & Am. Cas. Co., 2013 Ark. App. 469, 2013 Ark. \nApp. LEXIS 492 (noting several other holdings around working behavior). Rather it rests on \nthe credibility—or  a  lack  thereof,  of  the  testimony  now  attacking  the  contemporaneously \ndocumented version of the events. \n  The  claimant  was  not  a  credible  witness.  The transcript reflects  at  times, and  the \nfootnotes above do as well (to some extent), that the claimant’s demeanor on the stand was \ndifficult towards those asking questions of him. He was evasive and often more inclined to \ntell a story around a question’s answer than simply answering a question. Mr. Vick was \ninconsistent on whether he or others took lunch breaks—an important part of the issue at \nhand.  In  one  instance  there  were  no  lunch  breaks,  while  in  another  he personally  bought \nlunch for everyone he worked with until he grew tired of paying for everyone’s lunch. He \nstated that his job duties included “picking every single employee up,” while Mr. Valentine \nsaid that it was each employee’s responsibility to get to and from work and that if or when \nsomeone rode with Mr. Vick, it was probably just because they happened to ask Mr. Vick for \na ride. \n Mr. Vick disputed the veracity of his time cards, which were marked to indicate time \noff for lunch. While he acknowledged that the cards were hand-marked with time deductions \nand an “L” for time off the clock while away on lunch, he claimed that those cards were not \n\nC. VICK- G708180  \n13 \n \naccurate because they were taken by HR when they left every day at 5:00 pm. Those cards, \nhowever, clearly indicate that his testimony was not true in that regard. See Resp. No 1 Ex. \nNo 2 at 1-4. His time card for 28 August to 1 September, for example, shows that he punched \nout at the clock at 6:08, 7:14, 6:24, 8:16, and 8:19 on each of those days. These records stand \nin plain contrast to his claims that “they clocked us out when they wanted to” so they could \n“cheat us out of our hours.” [TR at 48.] \n Mr. Vick’s claim was denied by the respondents from the outset because they asserted \nthat he was out and returning from lunch at the time of the accident. Their records reflect \nthe same. See Resp. No 1 Ex. No 2. \n The claimant objected, on the basis of hearsay and a supposed violation of the Sixth \nAmendment [TR at 8-9], to the admission of a letter from the respondents authored by Brook \nCingolani and dated 5 December 2022. See Resp. No 1 Ex. No 2 at 16. First, I do not find that \nthe Sixth Amendment\n5\n is at all implicated here. Second, the Commission “shall not bound by \ntechnical rules of evidence.” Ark. Ann. § 11-9-705(a)(1). It is not clear if Ms. Cingolani was \nthe  intended  witness  noted  in  Respondent No 1’s Prehearing Questionnaire Response as a \n“Representative  of  the  McGehee Housing  Authority.” Respondent No  1 argued,  without \nfurther explanation as to why, that Ms. Cingolani was not available to testify at the time of \nthe  hearing. Still, I  find  the  record  admissible,  but  not  of  much  value  beyond  that  it  was \nprepared by the respondents in the course of this litigation and apparently for the purpose of \nthis litigation (it is dated more than three weeks prior to the date of the prehearing telephone \n \n5\n In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, \nby an impartial jury of the State and district wherein the crime shall have been committed, \nwhich district shall have been previously ascertained by law, and to be informed of the nature \nand  cause  of  the  accusation;  to  be  confronted  with  the  witnesses  against  him;  to  have \ncompulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel \nfor his defense. U.S. Const. amend. VI. \n\nC. VICK- G708180  \n14 \n \nconference) and that it is consistent with the respondents’ position on this matter since the \ntime around the accident.  \n As to Mr. Valentine’s testimony, I find it of little evidentiary weight. He acknowledged \nthat  he  hired  the  claimant  to  work  for  the  Housing  Authority,  that  they  had  known  each \nother for two decades, and that Mr. Vick “went through a lot since the accident.” [TR at 83.] \nMr. Valentine even drove Mr. Vick to Little Rock for a previous hearing on a motion to dismiss \nthis case. [TR  at  90.] Mr.  Valentine  could  not  recall  generally  telling  the  claimant  that  he \nwas to bring any specific tools to work. [TR at 94.] When pushed, he conceded that he could \nnot recall  exactly the context of that morning’s conversations and whether  he  directed  the \nclaimant  to  leave  the  site  to  retrieve  some  tools  or  whether  he  was  only  aware  that  the \nclaimant would leave at some point during the day (which his time cards reflect he regularly \ndid). When he stated that Mr. Vick was not on lunch at the time of the accident, he did not \nrecall an earlier statement, in a note from 2017, to the contrary. Despite Mr. Vick’s urging \nfrom across the room, as he was admonished against more than once, Mr. Valentine did not \nprovide sufficient credible testimony to refute the respondents’ position that Mr. Vick was \nnot performing work services at the time of the accident. At best, I believe that Mr. Valentine \nwrestled with his responsibility to tell the truth, his faded actual memory of that day’s events, \nand the “version” that he knew Mr. Vick was urging he remember on the stand. \n I would be remiss to not make note of what was not mentioned in Mr. Vick’s testimony \nin-line with his purported version of that day’s events. He said that Mr. Garner left with him \nso  that  they could  get sheetrock supplies  and trowels  that Mr.  Garner  needed for what  he \nwas working on that day. There is, however, no mention of those materials in relaying their \ntrip to Mr. Vick’s mother’s shed for Mr. Vick’s plumbing bag and their returning to the job \nsite. If, call it, “half” of the reason for the trip was getting tools and supplies for Mr. Garner, \nwhy not include the what’s and where’s of accomplishing that in the story about leaving and \n\nC. VICK- G708180  \n15 \n \nheading back to work? That gap in Mr. Vick’s story is certainly not dispositive, but it is \nanother  reason  I  call  into  question  his  version  of  the  events  and  his  stated  purposes  for \nleaving the job site that day. \n As  I  do  not  find it  more  likely  than  not that  the  accident  occurred  during  the \nperformance or work duties or within the course of Mr. Vick’s employment, I decline to reach \nthe  merits  of  the  defense  that  he  cannot  prove  a  compensable  injury  for  lack  of  objective \nmedical findings associated with the accident. That issue is moot.  \nB.  Attorney’s Fee \nConsistent  with  the  above,  the  claimant  fails  to  establish  that  he  is  entitled  to  an \nattorney’s fee. \nV.  ORDER \n Consistent with the Findings of Fact and Conclusions of Law set forth above, this \nclaim is DENIED AND DISMISSED. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No G708180 CLINT A. VICK, EMPLOYEE CLAIMANT McGEHEE HOUSING AUTHORITY, EMPLOYER RESPONDENT No 1 AR MUNICIPAL LEAGUE-WCT, TPA RESPONDENT No 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT No 2 OPINION FILED 27 OCTOBER 2023 Heard before Arkansas Wo...","fetched_at":"2026-05-19T23:02:20.868Z","links":{"html":"/opinions/alj-G708180-2023-10-27","pdf":"https://labor.arkansas.gov/wp-content/uploads/VICK_CLINT_G708180_20231027.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}