{"id":"alj-G003461-2024-01-12","awcc_number":"G003461","decision_date":"2024-01-12","opinion_type":"alj","claimant_name":"Spencer Tapp","employer_name":"William Harris, Inc","title":"TAPP VS. WILLIAM HARRIS, INC. AWCC# G003461 JANUARY 12, 2024","outcome":"dismissed","outcome_keywords":["dismissed:5","granted:1"],"injury_keywords":["shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Tapp_Spencer_G003461_20240112.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Tapp_Spencer_G003461_20240112.pdf","text_length":11420,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. G003461 \n \n \nSPENCER J. TAPP, EMPLOYEE CLAIMANT \n \nWILLIAM HARRIS, INC., \n EMPLOYER RESPONDENT \n \nACADIA INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 12, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on January 11, 2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Ms.  Melissa  Wood,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.    Claimant  gave  testimony  at  the  hearing.    The  evidentiary  record \nconsists  not  only  of  that  testimony,  but  also  of  Commission’s  Exhibit  1,  forms, \npleadings,  and  correspondence  related  to  this  claim,  consisting  of  13  numbered \npages; and Respondents’ Exhibit 1, forms, pleadings, and correspondence related \nto  this  claim,  consisting  of  one  index page    and  11  numbered  pages  thereafter.    \nAlso,  in  order  to  address  adequately  this  matter  under  Ark.  Code  Ann.  § 11-9-\n705(a)(1)  (Repl.  2012)(Commission  must “conduct  the  hearing    .  .  .  in  a  manner \nwhich best ascertains the rights of the parties”), I have blue-backed to the record \ncertain documents  from  the  Commission’s  file  on  the  claim,  consisting  of  21 \n\nTAPP – HG003461 \n \n2 \npages.   In accordance  with Sapp  v.  Tyson  Foods,  Inc.,  2010  Ark. App.  517, ___ \nS.W.3d   ___,   this   blue-backed   exhibit   has   been   served   on   the   parties   in \nconjunction with this opinion. \n The  record  reflects  the  following  procedural  history:   On  September  13, \n2011, Claimant filed his first Form AR-C in connection with this matter.  Therein, \nhe alleged  that  he  injured  his  shoulder  at  work  on  April  22,  2010.    All  he  sought \nwas  additional  treatment  in  the  form  of  a  CT  scan,  along  with  reimbursement  of \nmedical expenses.  This was also the case in the second Form AR-C that he filed \non  March  5,  2012.    However,  in  the  third  Form  AR-C,  which  Claimant  filed  on \nAugust 17, 2012, he requested the full range of initial and additional benefits. \n On October 3, 2012, a hearing on the claim was held before Administrative \nLaw Judge Andrew Blood.  In an opinion issued on October 4, 2012, Judge Blood \nmade the following findings of fact and conclusions of law: \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nof this claim. \n2. On April 22, 2010, the employment relationship existed during which \ntime  the  claimant  earned  wages  sufficient  to  entitle  him  to  weekly \ncompensation     benefits     of     $562.00/$422.00,     for     temporary \ntotal/permanent partial disability. \n3. On  April  22,  2010,  the  claimant  sustained  an  injury  to  his  left \nshoulder arising out of and in the course of his employment. \n\nTAPP – HG003461 \n \n3 \n4. The bilateral CT scan of the glenohumeral joint with 3-D and surface \nreconstruction, recommended by Dr. David N. Collins, the claimant’s \ntreating  physician,  is  reasonably  necessary  medical  treatment  in \nconnection  with  the  treatment  of  the  claimant’s  April  22,  2010, \ncompensable injury, pursuant to Ark. Code Ann. § 11-9-508(a). \n5. The  respondents  shall  pay  all  reasonabl[e]  hospital  and  medical \nexpenses arising out of the claimant’s April 22, 2010, compensable \nleft shoulder injury. \n6. The  respondents  have  controverted  the  claimant’s  entitlement  to \nmedical  treatment  as  recommended  by  his  treating  physician,  Dr. \nDavid   N.   Collins,   to   include   the   bilateral   CT   [s]can   of   the \nglenohumeral joint with 3-D and surface reconstruction. \nThis decision was not appealed. \n Mark  Martin,  Claimant’s  counsel  in  that  2012  hearing,  moved  to  withdraw \non  August  21,  2015.    Claimant  notified  the  Commission  by  letter  on  August  31, \n2015, that he did not object to the withdrawal.  In an Order entered on September \n9,  2015,  the  Full  Commission  granted  the  motion  pursuant  to  AWCC  Advisory \n2003-2.  In the ensuing years thereafter,  as documented by  records in evidence, \nRespondents continued to furnish medical and indemnity benefits to Claimant. \n Respondents on September  22,  2023,  moved  for  a  dismissal  of  the  claim \nwithout  prejudice  under  AWCC  R. 099.13  and  Ark.  Code  Ann.  § 11-9-702  (Repl. \n2012)  because  of,  inter  alia,  Claimant’s  alleged  failure  to  make  a  bona  fide \n\nTAPP – HG003461 \n \n4 \nhearing  request  within  the  previous  six  months.    My  office  wrote  Claimant on \nSeptember  25,  2023,  asking  for  a  response  to  the  motion  within 20  days.    The \nletter was sent via first-class and certified mail to the address for Claimant listed in \nthe file.  He responded on September 29, 2023, writing: \nI  am  responding  to  a  Motion  to  Dismiss  dated  9-25-2023,  sent  to \nme via certified mail. \n \nI disagree with this motion to dismiss due to the nature of my injury.  \nMy  surgeons  have  stated  the  need  for  follow-up  care  and  the \npotential  for  additional  medical  interventions  in  the  future.    I  am \ncurrently  scheduled  for  a  follow-up  visit  with  my  surgeon  on  10-5-\n2023 due to increasing pain.  This appointment has been approved \nby  the  insurance  company  that  has  filed  the  Motion  to  Dismiss.    I \nfind it interesting that the Motion to Dismiss was requested on 9-22-\n2023,  the  day  that  my  wife  communicated  with  the  insurance \nadjuster requesting the appointment.  I request a hearing if that is \nnecessary to proceed with my opposition to this motion. \n \n(Emphasis added)  Based on this, I informed the parties on October 9, 2023, that I \nam  taking  the  Motion  to  Dismiss  under  advisement  and  would  be  issuing \nprehearing  questionnaires.    However,  Claimant  notified  me  by  email  on  October \n20, 2023, that he was “not requesting benefits to be paid, but will have the need \nfor additional medical care in the future . . . .”  I interpreted this as a withdrawal of \nthe hearing request, and informed the parties of this that same day. \n On  October  24,  2023,  I  scheduled  a  hearing  on  the  Motion  to Dismiss  for \nDecember  7,  2023,  at  9:30  a.m.  at  the  Commission  in  Little  Rock.    Later,  on \nNovember  13,  2023,  this  was  re-set  for  January  11,  2024,  at  9:30  a.m.    The \nNotice  of Hearing was sent to the parties by first-class and certified mail; and as \nalluded to above, both appeared before me at the appointed time.  As the certified \n\nTAPP – HG003461 \n \n5 \nmail  receipt  reflects, and Claimant  confirmed  in  his  testimony,  he  received  the \nnotice.  Respondents asked for dismissal of the claim without prejudice under Ark. \nCode Ann. § 11-9-702(d) (Repl. 2012) and AWCC R. 099.13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following Findings \nof  Fact  and  Conclusions  of  Law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this claim. \n2. The parties  were  provided  reasonable  notice  of  the   Motion  to \nDismiss and of the hearing thereon under AWCC R. 099.13. \n3. The Commission is authorized to dismiss claims lacking a justiciable \nissue pursuant to AWCC R. 099.13. \n4. This  claim  should  be,  and  hereby  is,  dismissed without  prejudice \npursuant  to  AWCC  R.  099.13  because  of  the  lack  of  a  justiciable \nissue. \n5. Because  of  the above  finding,  Ark.  Code  Ann. § 11-9-702(d)  (Repl. \n2012) will not be addressed. \nIII.  DISCUSSION \n AWCC R. 099.13 provides in relevant part: \n \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \n\nTAPP – HG003461 \n \n6 \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n The  Arkansas  Court  of  Appeals  in Johnson  held  that  a  claim  could  be \ndismissed  for  lack  of  prosecution  based  on  the  fact  that  there is  no  justiciable \nissue.    The  authority  for  doing  so  comes  under  Rule  13,  which  the  Commission \npromulgated  under  Ark.  Code  Ann.  §  11-9-205(a)(1)(A)  (Repl.  2012).    This \nprovision  authorizes it  “[t]o  make  such  rules  and  regulations  as  may  be  found \nnecessary[.]”  See Dura Craft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d \n562  (1969); Johnson, supra.   Contra  Dillard v.  Benton  Cty.  Sheriff’s  Off.,  87 Ark. \nApp. 379, 192 S.W.3d 287 (2004)(“Rule 13 . . . allows a dismissal . . . pursuant to \nArk.  Code  Ann.  §  11-9-702(b)(4),  the  portion  of  the  statute  relating  to  additional \nbenefits”).    Certainly,  such  a  claim  could  be  re-filed  if  a  justiciable  issue  arises, \nprovided that all other prerequisites for a cognizable claim are met. \n At  the  hearing,  Claimant  during  his  testimony  conceded that  there  are  no \njusticiable issues at present regarding this claim.  Any treatment that he has been \nseeking has been  covered by Respondents.   Their counsel assured Claimant on \nthe  record  that  this  would  continue  to  be  the  case.    Claimant  also  testified  that \nbased on the foregoing, he does not object to the dismissal of the claim. \n\nTAPP – HG003461 \n \n7 \n I credit Claimant’s testimony.  Under Johnson, supra, this claim should thus \nbe dismissed under Rule 13 due to the lack of ripeness.  Because of this finding, it \nis unnecessary to address the application of § 11-9-702. \n That, however, leaves the question of whether the dismissal should be with \nor without prejudice.  The Commission possesses the authority to dismiss claims \nwith  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co.,  23  Ark. App.  137,  744 \nS.W.2d  402  (1988).    This  includes  claims  dismissed  under  Rule  13.   Johnson, \nsupra.  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS 5 10, the Commission \nwrote:    “In  numerous  past  decisions,  this  Commission  and  the  Appellate  Courts \nhave   expressed   a   preference   for   dismissals   without   prejudice.”      (citing \nProfessional  Adjustment  Bureau  v.  Strong,  75  Ark. 249, 629  S.W.2d  284  (1982); \nHutchinson  v.  North  Arkansas  Foundry,  Claim  No.  D902143  (Full  Commission \nOpinion  filed  October  23,  1991)).    In  light  of  this  preference,  along  with  facts  of \nthis case and Respondents’ agreement that dismissal should be without prejudice, \nthe dismissal of this claim is hereby entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove,  the  Motion  to  Dismiss  is  hereby  granted,  and  this  claim  is  hereby \ndismissed without prejudice. \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n \n\nTAPP – HG003461 \n \n8 \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. G003461 SPENCER J. TAPP, EMPLOYEE CLAIMANT WILLIAM HARRIS, INC., EMPLOYER RESPONDENT ACADIA INS. CO., CARRIER RESPONDENT OPINION FILED JANUARY 12, 2024 Hearing before Administrative Law Judge O. Milton Fine II on January 11, 2024, in Little Rock, Pulaski Coun...","fetched_at":"2026-05-19T22:58:27.798Z","links":{"html":"/opinions/alj-G003461-2024-01-12","pdf":"https://labor.arkansas.gov/wp-content/uploads/Tapp_Spencer_G003461_20240112.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}