STONE v. WOOD MANUFACTURING CO., 2001 AWCC 219

CLAIM NO. E909574 E905768

DANIEL D. STONE, EMPLOYEE, CLAIMANT v. WOOD MANUFACTURING CO., EMPLOYER, RESPONDENT, MANAGEMENT CLAIMS SOLUTION, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
ORDER FILED OCTOBER 17, 2001

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by HONORABLE FREDERICK SPENCER, Attorney at Law, Mountain Home, Arkansas.

Respondent represented by HONORABLE JOSEPH H. PURVIS, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Vacated and remanded.

ORDER
The claimant appeals from an Opinion and Order filed by the Administrative Law Judge on January 30, 2001. In that Opinion and Order, the Administrative Law Judge found that the claimant has failed to prove by a preponderance of the credible evidence that he is entitled to any temporary total disability benefits for the period from June 1, 1999 to August 10, 1999.

As a threshold issue on appeal, the claimant’s attorney asserts that the Administrative Law Judge abused his discretion in allowing the deposition of Dr. Burnett into evidence over the objection of the claimant’s attorney. For the reasons discussed below, we agree. We find that the Administrative Law Judge’s decision should be vacated, and this case remanded for the respondents to make Dr. Burnett available to the claimant’s attorney for cross-examination at the respondents’ expense.

The relevant facts in this case regarding the procedural grounds for remand are not in dispute. The claimant sustained injuries at work on February 19, 1999, and again on May 11, 1999. Thereafter, the respondents had the claimant placed under surveillance on May 22 and 23, 1999. The claimant later filed a claim for temporary total disability benefits for the period from June 1, 1999 to August 10, 1999.

With respect to this litigation, the claimant’s attorney filed discovery requests, including request for production number 3, which asked the respondents to “produce a copy of each statement or recording mentioned above in answer to interrogatory number 10 in its original form, whether written or recorded. . . .” This request was filed with the Commission on August 25, 1999 and answered by the respondents on September 21, 1999.

In a prehearing order filed on April 11, 2000, it was found and determined by an Administrative Law Judge that:

4. The respondents agreed to provide claimant’s counsel with a copy of a video tape of the claimant’s activities. The parties further agreed that the deposition of Dr. Burnett was scheduled for May 10, 2000 and that a hearing was not required at this time.

Dr. Burnett’s deposition was in fact taken on May 10, 2000. During that deposition, Dr. Burnett was shown the video tape surveillance of the claimant’s activities taken on May 22 and 23, 1999. However, for reasons known only to the respondents, the video tape was not provided to the claimant’s attorney prior to the respondents showing the video tape to Dr. Burnett in his deposition on May 10, 2000.

On those grounds, the claimant’s attorney filed a motion to strike Dr. Burnett’s deposition on June 8, 2000. The respondents filed a reply to the claimant’s motion to strike on June 12, 2000. In that reply, the respondents asserted that the claimant was not prejudiced by the respondents not turning over a copy of the video tape prior to Dr. Burnett’s deposition because the claimant had previously seen a transcript of the surveillance of his activities represented on the video tape.

In an interlocutory order, the Administrative Law Judge denied the claimant’s motion to strike Dr. Burnett’s deposition on the grounds that the claimant was not prejudiced by the respondents’ activity in failing to provide the claimant’s attorney a copy of the actual video tape. The Administrative Law Judge instead found that the claimant had the right to depose Dr. Burnett at the claimant’s own expense prior to the hearing set for January 3, 2001 or to subpoena Dr. Burnett at the claimant’s own expense to appear as a live witness before the Commission at the hearing.

For our part, we cannot agree with the Administrative Law Judge that the claimant and the claimant’s attorney were not prejudiced by the respondents not having provided the claimant’s attorney in advance of Dr. Burnett’s deposition a copy of the video tape which the respondents intended to show Dr. Burnett. Although the Administrative Law Judge seems to suggest that no prejudice occurred because the claimant had previously seen and reviewed a transcript prepared by the investigator, we point out that the respondents did not show Dr. Burnett a copy of a transcript of the activities of the private investigator. Instead, the respondents showed Dr. Burnett the actual video tape which had previously been requested by the claimant’s attorney, but which had not been furnished by the respondents. Obviously, a transcript of the activities and observations of a private investigator are not equivalent to actual video tape of the claimant’s body movements discussed during deposition. If the transcript had been enough, as the respondents suggest, then the respondents should have shown the doctor the transcript, rather than the actual video which was withheld from the claimant’s attorney prior to the deposition.

Furthermore, we fail to agree with the Administrative Law Judge’s suggestion that the appropriate remedy is for the claimant to schedule another deposition at the claimant’s own expense now that the claimant’s attorney has had an opportunity to review the video tape. We point out that if the respondents had timely turned over the video tape as requested by the claimant’s attorney prior to Dr. Burnett’s first deposition, there would be no need for a second deposition and there would therefore certainly be no need for a second deposition at the claimant’s own expense. Under the circumstances of this case, the respondents are directed to make Dr. Burnett available for cross-examination by the claimant’s attorney now that the respondents have provided the claimant’s attorney a copy of the video tape in question. Thereafter, the Administrative Law Judge shall make findings of fact and conclusions of law based on the entire record.

For prevailing on this appeal before the Full Commission, the claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715
(Repl. 1996).

IT IS SO ORDERED.

_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ SHELBY W. TURNER, Commissioner

Commissioner Wilson dissents.