{"id":"alj-G201609-2026-02-03","awcc_number":"G201609","decision_date":"2026-02-03","opinion_type":"alj","claimant_name":"Terri Lockard","employer_name":"Saint Jean Industries, Inc","title":"LOCKARD VS. SAINT JEAN INDUSTRIES, INC. AWCC# G201609 February 03, 2026","outcome":"granted","outcome_keywords":["granted:2"],"injury_keywords":["back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/LOCKARD_TERRI_G201609_20260203.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LOCKARD_TERRI_G201609_20260203.pdf","text_length":36624,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G201609 \n \nTERRI LOCKARD, EMPLOYEE      CLAIMANT \n \nSAINT JEAN INDUSTRIES, INC., \nEMPLOYER         RESPONDENT #1 \n \nTRAVELERS PROPERTY AND CASUALTY, \nOF AMERICA  \nINSURANCE CARRIER/TPA      RESPONDENT #1 \n \nDEATH AND PERMANENT TOTAL \nDISABILITY TRUST FUND      RESPONDENT #2 \n \nOPINION FILED FEBRUARY 3, 2026 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 9th day of \nDecember, 2025, in Little Rock, Arkansas. \nClaimant is represented by Gary Davis, Attorney at Law, Little Rock, Arkansas. \nRespondents #1 are represented by Amy C. Markham, Attorney at Law, Little Rock, \nArkansas. \nRespondent #2 is represented by Christy L. King, Attorney at Law, Little Rock, \nArkansas.  \nSTATEMENT OF THE CASE \n A hearing was conducted on the 9\nth\n day of December, 2025. The parties stipulated \nthat the Arkansas Workers Compensation Commission has jurisdiction of the claim, there \nwas an employer/employee/carrier or TPA relationship existing at all pertinent times, and \nspecifically on October 18, 2010, and that the Claimant’s average weekly wage was such \nthat  she  is  entitled  to  a  compensation rate  of  $303.00  temporary  total  disability  and \n$227.00 permanent partial disability. The   Claimant   reached   maximum   medical \nimprovement  on  January  31,  2012,  and  the  Claimant  has  been  determined  to  be \npermanently and totally disabled.  Further, the Six Prior Opinions are Res Judicata and \nthe Law of the Case.  Additionally, it was stipulated that the regular indemnity payments \n\nTerri Lockard – G201609 \n2 \n \nto  the  Claimant  stopped  in  February  of  2021,  but  a  later  payment  was  made  to  the \nClaimant. The Trust Fund issued a Certificate of Acceptance on January 16, 2016, which \nset the Trust Fund’s takeover date as August 21, 2023.   \nThe primary issues as spelled out in the Prehearing Order and after statements by \nthe party’s representatives at the close of the hearing are the issues of a 20% penalty \ndue the claimant for late payments by Respondents #1 plus the issue of any applicable \nattorney fees due the Claimant.  The second matter before the Commission is the Trust \nFund’s contentions under what was previously known as Commission Rule 99.28 and \nnow  known  as 11  C.A.R.  25-123 that Respondents #1 failed  to  comply  with the  notice \nrequirements  as  required  by  the  Certificate  of  Acceptance  signed  by Respondents #1, \nwhere the agreed to contact the Trust Fund in the event they stopped making payments \nin any way.  Payments to the Claimant were stopped on or about February 28, 2021, and \nRespondents #1 did not notify the Trust Fund of this event and did not restart payments \nuntil September 12, 2025, and whether Respondents #1 should be penalized $10,000.   \nIt is noted that after the filing of the Responses to the Pre-hearing Questionnaires \nby all the parties, but prior to the actual hearing regarding this matter, that Respondents \n#1 issued checks totaling $38,805.50, with a check made out to the Claimant’s attorney \ndated  July  19,  2024,  for  the  sum  of  $4,850.69  which  consisted  of  the  withheld  portion \nfrom the Claimant’s portion for her part of her attorney fees.  A second check was issued \nto the Claimant dated July 22, 2024, for the sum of $33,954.69 for the unpaid disability \npayments.  \n As far as the actual contentions of the parties, the Claimant’s and Respondents’ \ncontentions are set  out  in their respective  responses  to  the  Pre-hearing  questionnaire, \n\nTerri Lockard – G201609 \n3 \n \nmade part of  the  record  without objection,  and  clarified  at  the  time of  the  hearing. The \nClaimant contends that she was being paid permanent total disability benefits which were \ndiscontinued  due  to  Respondents #1, apparently  having  difficulty  locating her.  The \nClaimant also contends that she has in fact been located and living at the same address \nwhere she resided when benefits were being paid. Claimant contends in her Pre-Hearing \nQuestionnaire her entitlement to renew  her  permanent  disability  benefits and her \nentitlement to  a  20  percent  penalty  in  the  sum  of $7761.11 along  with attorney  fees.  \nRespondents  #1 contend  that  the  permanent  total  disability  payments stopped  in \nFebruary  of  2021  because  all  indemnity  payments had  been  paid to  the  Claimant.  \nRespondent   #2   contend that   Respondents   #1   failed   to   comply   with   the   notice \nrequirements  of  Arkansas  Workers'  Compensation  Rule  099.28, now  codified and \nreferred  to  as 11  C.A.R.  25-123  and referred  to  in the Form  SF-7 (Certificate  of \nAcceptance) and that the Rule allows for a $15.00 per day penalty up to $10,000.00 for \na lack of notice and that a fine of $10,000 is called for due to lack of notice due to when \nRespondents #1  stopped  paying disability  payments  to the Claimant.    The  Trust  Fund \nstands ready to commence weekly benefits in compliance with A.C.A. 11-9-502 and has \nnot controverted the Claimant’s entitlement to benefits. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n2. That an employer/employee/carrier or TPA relationship existed at all pertinent \ntimes and specifically October 18, 2010.  \n\nTerri Lockard – G201609 \n4 \n \n3. That  the  Claimant’s average weekly wage was sufficient for a  TTD  rate  of \n$303.00 and a PTD rate of $207.00. \n4. That Claimant reached MMI on January 31, 2012, and was determined to be \nPermanently and Totally Disabled. \n5. That  the  Six  Prior  Opinions  that  have  been  issued  in  this  matter  are  Res \nJudicata and the Law of the Case. \n6. That the regular indemnity payments stopped in February of 2021, but years \nlater in July of 2024, a total of $38,805.50 was paid to the Claimant, with the \nsum of $4805.59 withheld from the total amount of payment and this sum was \npaid to the claimant’s attorney as the Claimant’s portion of her attorney fees. \n7. That Claimant has satisfied the required burden of proof by a preponderance \nof the credible evidence that she is entitled to the sum of $7761.11, a twenty \n(20%) penalty pursuant to A.C.A. 11-9-802, for installment payments not made \nwithin 15 days after the payments became due. \n8. The Claimant is also entitled to attorney fees pursuant to A.C.A. 11-9-715 on \nthe  amount  of  $7,761.11, which  was  in  fact controverted.   Additionally,  if not \nalready  paid, Claimant’s representative is also entitled  to  Respondents  #1 \nportion  of  the attorney  fees  for  the  collection  of  the $38,805.50  paid  to  the \nClaimant on or about July of 2024.  This payment is entitled to interest pursuant \nto A.C.A.11-9-809.   \n9. Additionally it is found that the evidence preponderates that Respondents #1 \nfailed  to  file  the  required  Amended  AR-D notice with  the  Trust  Fund  within \nfifteen  (15)  days  of  the  change  of  status  when  Respondent  #1  stopped \n\nTerri Lockard – G201609 \n5 \n \npayments to the Claimant back in February of 2021, that payments were not \npaid over a period of three years, and that over two years had passed when \nRespondent #2, the Trust Fund requested information.  Additionally, it is found \nthat there  is  no  good cause for  the  stoppage  of  the  payments, and that \nRespondent #2 is entitled to a ten-thousand-dollar ($10,000.00) penalty to be \npaid by Respondents #1, forthwith, pursuant to 1 C.A.R.25-123.   \n10. If not already paid, the Respondents #1 are ordered to pay for the cost of the \ntranscript forthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The   Pre-hearing   Order   along   with   the Responses to   the Pre-hearing \nQuestionnaires of the parties were made part of the record without objection. All proposed \nexhibits were admitted into the record without objection. Claimant’s Exhibit One, which \nconsisted  of documentary  evidence, was admitted  into  the  record  without  objection.  \nRespondents #1 Exhibit One, which also consisted of documentary evidence, was also \nadmitted into the record without objection.  Respondent #2 Exhibit One, which consisted \nof a Certification of Acceptance /Payment Detail, was also admitted into the record without \nobjection.    Additionally, the parties  submitted  briefs  at  the  request  of  the Commission, \nand the briefs are “Blue-Backed” and made part of this opinion. \nThe sole witness was the Claimant, Ms. Terri Lockard, who testified that she lives \nat 80 Powell Road, Edgemont Arkansas, zip code 72044, and has lived there since 2009.  \nThe Claimant testified that in 2013, she was involved in a Workers’ Compensation hearing \nwhere it  was determined that she  was  totally  disabled  and that she received workers’ \ncompensation benefits, along with medical benefits. The records indicated she was last \n\nTerri Lockard – G201609 \n6 \n \npaid in February of 2021, but she recently received a check in the amount of $33,954.84. \nThe Claimant further testified that she failed to receive payments between 2021 up until \nthe recent payment of $33,954.84. There had been an ongoing discussion within the last \nseveral  months  about  the  possibility  of  settling  the  case,  with  the  exchange  of  some \nauthorizations  that had  been  requested  by  the insurance  company  and  Medicare.  She \nreceived the sum of $33,954.84 in September of 2025, but denied receiving any additional \nmoney from a workers’ compensation standpoint. (Tr. 5 – 8) \nUnder  cross  examination,  the  Claimant  denied  being  contacted  by  anyone from \nRespondents  #1.  When  asked about Respondents  #1 taking the  position  that  they \nattempted  to  contact  her  several  times  in 2021  and were unable  to make  contact,  she \nresponded that she was unaware of them attempting to contact her.  She denied being \ntold by her neighbors about any contact attempt and named four of her neighbors.  When \nasked if there was an agreement between herself and Respondents #1 in regard to the \nsettlement  of  her  case, she responded “I thought we were going to.”  She admitted \nreceiving a copy in 2024 of the Medicare set-aside report.  She admitted not being aware \nthe Medicare set-aside had to be submitted to Medicare for them to review and approve.  \nShe was aware that she had to sign certain authorizations.  The Claimant responded “I \nthink so” to the question of whether a long period of time went by when she had agreed \nto settle her case for all medical and indemnity and was waiting for the approval of the \nMedicare  set  aside.    She  was  not  aware  the  settlement  could  not  be  finished  until \nauthorizations  were  returned.   She  was also asked about  receiving  an authorization to \nsign back in October of 2024, and she responded “If it was ’24 - - I’m sorry, I’m - - Time \nhas kind of run together for me. I don’t - - Whatever I received, I - - I signed and returned.” \n\nTerri Lockard – G201609 \n7 \n \nShe was asked again about the authorizations sent to her attorney in October of 2024, \nand she responded that “Whenever I got anything from Mr. Davis, I returned it” and stated \nthat she did it promptly.  The following questioning then occurred: \nQ: Okay. So, if - - Then if you don’t remember returning any back in 2024, you’re \nsaying you don’t remember getting them, is that right. \nA: Yes, that’s right. \nQ: Okay.  So, we weren’t able to settle your claim as we had agreed because those \ndocuments were never returned to us.  Were you aware of that? \nA: No. \nQ:  Okay.  You  have  received  a  large  check  for  the  outstanding  amount that \nTravelers owed to you, is that right? \nA: Yes. \nQ: Okay. But your claim remains open at this point, is that right? \nA: Yes. (Tr. 8 – 12) \nOn  redirect,  the  Claimant  agreed  she  was  aware  of  the  fact  that  the  amount  of \nmoney owed to her by the insurance company from 2021 through 2024 had all accrued \nbefore there was a discussion about possibly trying to settle her case. She also testified \nthat she returned the authorizations sent to her and believed she had returned everything. \n(Tr. 13) \nOn  recross  examination,  the  Claimant  admitted  that  Craig  and  Tammy  Carlton \nwere her neighbors and that although she could not see their home, she thought that they \nlived  about  a  half  mile  from  her.  She  admitted  talking  to  them  and  having  their  phone \n\nTerri Lockard – G201609 \n8 \n \nnumber.  She  denied that they  ever  mentioned Respondents  #1 sent  someone  to  their \nhouse to determine if she lived in the area. (Tr. 14) \nUnder  questioning  by  the  Commission,  the  Claimant  admitted  that  she  had \ndifficulty receiving her mail at times and at times received mail addressed to others.  This \nled to further direct examination of the Claimant where she testified that she was receiving \nher checks in the mail back in 2021, at the same address.  Under further questioning by \nthe Commission, the Claimant admitted she had lived at her current location since 2009 \nand had three or four different mail carriers during that time. (Tr. 15 – 17) \nClosing statements were then allowed.  Respondent #2 argued that the Trust Fund \nwas  contending  under  old  Rule  99.28  of  the  Commission, now 11  C.A.R.  25-123,  that \nRespondents #1 failed  to  comply  with  the  notice  requirements  in  what  is  called  the \nCertificate  of  Acceptance which was  sent  and  signed  by  Respondents #1(Travelers \nInsurance), which provided it agreed to contact the Trust Fund in the event they stopped \npaying or changed their payments in any way.  There was no contact and payments were \nstopped February 28, 2021, and payments did not restart until September 12, 2025.  The \nRule allows for a $15.00-a-day penalty up to $10,000.00, and the Fund is requesting a \n$10,000.00 penalty for lack of notice due to when they stopped payment to the Claimant. \n(Tr. 18, 19) \nThe Claimant argued she was owed $38,805.55 prior to the Trust Fund taking over \nand admitted Respondents  #1  ultimately  paid  that  sum  after  removing  the  amount  for \nattorney fees.  They “flat didn’t pay the benefits” from February 24, 2021, till July 19, 2024, \nand  each  check  is  subject  to  a  20  percent  penalty which would  result  in  a  penalty  of \n\nTerri Lockard – G201609 \n9 \n \n$7761.11. Discussions about potentially trying to settle the claim would not have taken \nplace until after the accrual had already happened. (Tr. 19, 20)  \nRespondents #1 argued that Respondent Travelers  made  multiple  attempts  to \ncontact the Claimant with no success and even hired an investigator to perform an “Alive-\nand-Well” inquiry at the Claimant’s residence.  “They didn’t know if she was still around, \nif she was still alive and well, if she was hospitalized. They didn’t know. They just couldn’t \nget in contact her.” They sent an investigator to her home who spoke  to  a  couple  of \nneighbors.  Since  they  were  unable  to  get  in  contact  with  her,  payments  stopped. \nCommunications resumed in 2024 and an MSA was prepared, which had to be submitted \nto the  Centers  for  Medicare  and  Medicaid  Services to  effectuate  settlement.  These \nauthorizations were sent to the attorney for the Claimant and were not returned for over \na year. The Centers for Medicare and Medicaid Services have a six-month time span and \nif it’s more than six months old, they won’t review the same MSA.  Respondent  #1 \n(Travelers) contended that they were prepared to proceed with the settlement but couldn’t \nget an MSA reviewed by Medicare. The Claimant had received no medical treatment for \na long time and Respondents #1 did not hear from Claimant’s attorney until later in 2025, \nbased upon everything that had happened. That was when a hearing was requested. (Tr. \n20 – 22) \nAt this point the Claimant’s representative was allowed to respond and stated that \nhe contended that the Claimant still had an “open, active, available medical claim, that \nDoctor  Silas, the Claimant’s doctor had  retired, so consequently the  Claimant  needed \nRespondents #1 to make arrangement for an authorized treating physician.  Additionally, \nClaimant again contended that Respondents #1 stopped making payments in 2021 and \n\nTerri Lockard – G201609 \n10 \n \nthat they did not know why. The private investigator provided information to Respondents \n#1 that Claimant was still around. (Tr. 23)  \n The Claimant submitted 53 pages of documentary evidence without objection.  An \nALJ  Opinion  dated  September  21,  2013, found  that  an  employee-employer-insurance \ncarrier relationship existed on or about October 18, 2010, that the Claimant had reached \nthe end of her healing period on January 31, 2012, and that the Claimant had proven by \na  preponderance  of  the  evidence  that  she  had  been  rendered  permanently  and  totally \ndisabled by her compensable head injury of October 18, 2010, beginning on January 31, \n2012.  (Cl. Ex. 1, P. 1 – 30) \n An email from the Trust Fund dated May 2, 2024, to the attorney for Respondents \n#1, provided that the email was a follow up to the last year emails regarding the Claimant \nwhen Respondent #1 advised that they had not made any payments regarding medical \nor indemnity since 2020, and that an Agreed Decree of Divorce provided that the Claimant \nhad been awarded sole possession of the residence in Edgemont, AR.  The email also \nrequested  a  complete  indemnity  payment  history  for  an  audit  prior  to  the  Trust  Fund \nassuming payment of indemnity benefits. A second email from the Trust Fund dated May \n16, 2023, provided that it appeared that Respondents #1 had not paid any benefits in over \ntwo years and had closed their file. The email further provided that “Unless Travelers \nbegins  payments  at  some  point  in  the  future  satisfying  their  maximum  obligation  on \nindemnity  benefits,  the  Trust  Fund  will  not  have liability in this claim.” An email from \nRespondent  #1 (Travelers) dated  May  16,  2023,  from  an  individual  located  in  Texas, \nprovided  they  had  closed  their workers’  compensation  file after multiple  attempts  to \nconnect with the Claimant. Another email from the Trust Fund also dated May 16, 2023, \n\nTerri Lockard – G201609 \n11 \n \nprovided that the Trust Fund had still not received a payment history as of the date of the \nemail. A  Divorce  Decree  dated  November  6\nth\n,  2023,  provided  that  the  Claimant  would \nhave possession of the property in Cleburne County, Arkansas, which appears to be the \nresidence in Edgemont. (Cl. Ex. 1, P. 31 – 39) \n On or  about May  14,  2024,  an  email to  the  Commission from  the office  of  the \nattorney for  the  Claimant, provided  that  the  Claimant had  received  a  call  from  the \ninsurance adjuster advising her that the insurance carrier’s responsibility to pay her was \nover.  The  email  further  provided he  had  not been  informed  that her  benefits  had been \ndiscontinued. The Claimant is permanently totally disabled. (Cl. Ex. 1, P. 40)  A later email \nfrom the office of the Claimant’s attorney dated July 8\nth\n, 2024,  requested  the  payment \nrecord involving the Claimant. (Cl. Ex. 1, P. 41) \n A  follow  up  email  from  the attorney  for Respondents  #1  dated  July  14,  2024, \nprovided that after a thorough audit of the file payments, Respondents #1 acknowledged \nstill owing the Claimant the sum of $38,805.55 before the Fund takeover. (Cl. Ex. 1, P. \n42)  A Medicare Set-Aside Allocation along with three authorizations were mailed to the \nClaimant’s attorney on October 8, 2024, requesting that the authorizations be returned to \nthe attorney for Respondents #1 (Cl. Ex. 1, P. 43 – 49)  An email dated June 23, 2025, \nfrom counsel provided  that Respondents  #1 still  needed Claimant’s personal medical \nwhile  her  claim  was  closed, and  also  her  personal  health  notes  from  “All” of her \nphysicians.  An  email  on  the  same  date  from  Claimant’s  attorney provided  signed \nauthorizations that were “finally received” back from the Claimant. (Cl. Ex. 1, P. 50) An \nemail  dated  June  26,  2025, from the office of Claimant’s attorney, provided  that  the \nClaimant had stopped receiving medical treatment due to her doctor retiring and that she \n\nTerri Lockard – G201609 \n12 \n \nhad not had any medication in over a year. (Cl. Ex. 1, P. 51) Nearly a month later, on July \n23, 2025, an email from the Respondents #1 attorney provided that the Respondents no \nlonger wished to settle the claim. (Cl. Ex. 1, P. 51) An email from the Claimant’s attorney \ndated August 7, 2025, mentioned that his client being owed a couple of years of benefits \nand a twenty percent (20%) penalty on each installment. (Cl. Ex. 1, P. 53) \n Respondents #1 submitted 22 pages of non-medical evidence without objection. \nA document from Respondent Saint Jean Industries titled Investigation and dated April \n14,  2021,  provided that  three  attempts  to  contact  the  attorney for  the Claimant and \nschedule  a “virtual  alive  and  well  check” had been made and they  had not  received  a \nreturn  call at  that time. The  document went on  to provide  that they would schedule  an \ninvestigator to complete a neighborhood canvass. (Resp. #1, P. 1) \n An  “Alive  and  Well  Check  Report”  dated  March  23,  2021,  provided  that  a \nneighborhood canvass in the area of Claimant’s home had been made and it provided \nthat Claimant still resided at the address and appeared to be in good health. The report \nwent on to provide that the investigator placed a call to the office of the Claimant’s attorney \nthe following day, leaving a detailed voice message requesting a return call.  The report \nfurther provided that a call to the office of Claimant’s attorney was again made on March \n30,  2021,  March  31,  2021,  and  April  1,  2021, leaving  a  message  and  requesting  a \nreturned call. On April 6, 2021, the investigator received a return call from Linda at the \noffice of the Claimant’s attorney, and the investigator then made another call and again \nleft a voice message requesting a returned call. On April 9, 2021, the report provided that \nthe investigator spoke with Linda at the office of the Claimant’s attorney and explained \nthe nature of the call. He stated that he thought Linda felt skeptical of the investigator and \n\nTerri Lockard – G201609 \n13 \n \nthe call, but stated she would talk to Claimant’s attorney. The investigator then provided \nin his report that he received a return call and voicemail where she declined a virtual Alive \nand Well Check for the Claimant and stated that they could set up a three-way phone call. \nThe  investigator  then  placed  a  return  call  to  Linda  and  again,  left  a  voice  mail,  and \nrequested a return call. The final date in the report is April 21, 2021, when the investigator \ndrove to Edgemont, the provided address of the Claimant, where he talked to neighbors, \nMr. Craig and Ms. Tammy Carlton. Both reported that Claimant was still alive and well \nand both did not have any information about the Claimant’s marital status. (Resp. #1, P. \n2-5) \n Respondents #1 also included a copy of a check made out to Claimant’s attorney \nin the amount of $4,850.69, dated July 19, 2024, and a second check made out to the \nClaimant  in  the  amount  of  $33,954.86,  dated  July  22,  2024,  for  the  stated  period  of \nFebruary 24, 2021, through July 19, 2024. (Resp. #1, P. 6,7) \n On October 8, 2024, an email from the office of the attorney for Respondents #1 \nincluded a Medicare Set-Aside Allocation along with three authorizations to be returned. \n(Resp.  #1,  P.  8-14)  Finally, payment  details were  provided  for  indemnity, medical,  and \nexpenses. (Resp. #1, P. 15 – 22) \n Respondent  #2  also  submitted  two  pages  of  non-medical  documents  that  were \nadmitted without objection.  A Certification of Acceptance, Form SF-7 from Special Funds \nwhich referred to the Trust Fund and listed Claimant and Respondents #1, provided that \non  August  21,  2023,  the  Trust  Fund  would  assume  liability  provided  there  were  no \nchanges  in  the  status  of  the  beneficiary.    The  Certification  of  Acceptance  which  was \nsigned  by  a  representative  of Respondents  #1 provided that  the  Trust  Fund  would \n\nTerri Lockard – G201609 \n14 \n \nassume liability of benefits, provided the employer/carrier provided proof of compliance \npursuant  to  A.C.A.  11-9-502(b)(1), and that  in  the  event  of  a  change  of  status,  an \namended AR-D must be filed with the Trust Fund within 15 Calendar days of any such \nchange. (Resp. #2, P. 1) A list of payments was also provided. (Resp. #2, P. 2)  \nDISCUSSION AND ADJUDICATION OF ISSUES \nThe issues before the Commission at the time of the hearing involve attorney fees \nand penalties, both a 20% penalty claimed by the Claimant against Respondents #1 for \nlate indemnity payments  pursuant  to  A.C.A.  11-9-802 and additionally, a claim  by \nRespondent  #2,  the  Trust  Fund, for  a Ten-Thousand-dollar  ($10,000.00)  penalty  from \nRespondents  #1  for  failing  to  file  an  Amended  AR-D  within  fifteen  (15)  days  of the \nClaimant’s change of payment status  and for not  timely  notifying  the  Trust  Fund that \npayments to the Claimant had stopped back on February 18, 2021, and that these actions \nor  failures to  act  constitute  a violation  of  11  C.A.R.  25-123(c)(1).  It is noted  that \nRespondents #1 made a payment to the Claimant and her representative prior to the date \nof the hearing in this matter in the sum total of $38,805.50 which would have been the \nremainder owed to the Claimant by Respondents #1 prior to the Respondent #2, the Trust \nFund, properly taking over, and consequently the issue where Claimant contends in her \nPre-Hearing Questionnaire of a need for her to renew her Permanent and Total Disability \nbenefits has in fact been resolved. \nWhen  deciding  any  issue,  the  Commission  shall  determine  on  the  basis  of the \nrecord  as  a  whole,  whether  the  party  having  the  burden of  proof  on  the  issue has \nestablished it by a preponderance of the evidence. A.C.A. 11-9-704(c)(2).  The claimant \nhas  the  burden  of  proving  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \n\nTerri Lockard – G201609 \n15 \n \nbenefits. Stone  v.  Patel,  28  Ark.  App.  54,  759  S.W.2d  579  (Ark.  App.  1998). The \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce. Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W. 2d 442 (1947)   In determining whether claimant has met \nher burden of proof, the Commission is required to weigh the evidence impartially without \ngiving  the  benefit  to  either  party.  A.C.A.  11-9-704(c)(4). Gencorp  Polymer  Products  v. \nLanders, 36 Ark. App. 190, 820 S.W2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987). All claims for workers’ compensation benefits \nmust be based on proof. Speculation and conjecture, even if plausible, cannot take the \nplace of proof.  Dena Constr. Co. v. Herdon, 264 Ark. 791, 595 S.W.2d 155(1979); Ark. \nDepartment of Corrections v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); \nIt is the Commission’s exclusive responsibility to determine the credibility of the witnesses \nand the weight to give their testimony. Whaley v. Hardee’s, 51 Ark. App. 116, 912 S.W.2d \n14  (Ark.  App.  1995). The Commission is not required to believe either a claimant’s or \nanother witness’s testimony but may accept and  translate  into  findings  of  fact  those \nportions of the testimony it deems believable. McClain v. Texaco, Inc. 29 Ark. App. 218, \n780 S.W.2d 34 (Ark. App. 1989); Farmers Coop v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark. App. 2002). \nIn regard to the Claimant’s contention that she is entitled to a twenty percent (20%) \npenalty from Respondents #1, A.C.A. 11-9-802 (c) provides in relevant part: \n(c) If any installment payable under the terms of an award is not paid within \nfifteen  (15)  days  after  it  becomes  due,  there  shall  be  added  such  unpaid \ninstallment an amount equal to twenty percent (20%) thereof, which shall \nbe paid at the same time as, but in addition to the installment unless review \nof the compensation order making the award is provided in §§ 11-9-711 and \n§§11-9-712. \n\nTerri Lockard – G201609 \n16 \n \n \nIn the present matter before the Commission, it is clear and the parties agree, that \nthe  Claimant  was  found  to be permanently  and  totally  disabled due  to  a  compensable \nhead  injury  occurring on  October  18,  2010,  with  the  permanent  and  total  disability \nbeginning on January 31, 2012, per an opinion issued by an Administrative Law Judge \nand filed on September 24, 2023. It was stipulated at that time that the Claimant’s wages \nare sufficient  for  a  TTD  rate  of $303.00  and  a  PTD  rate of  $227.00. At  the time of  the \ncurrent  hearing  before  the  Commission,  it  was agreed that the Claimant had  in  fact \nreceived  the  appropriate  indemnity  payments up  until the  last  payment  being  made  in \nFebruary  of  2021.  The record  provides  that  Respondents #1  attempted  to  contact  the \nClaimant and for some reason was unable to do so. It is also clear from the evidence that \nthere  are  issues  with the mail  in the rural Cleburne  County area  north  of Greers  Ferry \nLake.  In  any case,  Respondents #1 further  investigated  the  situation by obtaining the \nservices of a private investigator, who after making numerous phone calls in an attempt \nto  contact the Claimant’s representative or the Claimant herself, physically  went  to  the \nproperty where Claimant was known to have resided, where she had previously received \nindemnity payments, and where the investigator performed an “Alive and Well Check \nReport.” Although the  investigator did  not  see  the  Claimant,  he  did  talk  to  the  nearest \nneighbors, who stated that the Claimant was in fact alive and well. The Claimant testified \nat  the  current  hearing that  she was  still  living  in  the  same  location  as  when she  was \nreceiving regular checks, and her testimony is found to be believable. It also appears that \nthere  have  been  some  communication  issues  involving  the  Claimant, such  as  not \nreturning her own representative’s correspondence, and that a question was raised about \nClaimant’s divorce proceedings. The Divorce Decree from Cleburne County awarded the \n\nTerri Lockard – G201609 \n17 \n \nresidence in question to the Claimant. An argument made by Respondents #1 was that \nat one point, the parties were in a discussion to settle this matter and had even progressed \nto the point that a Medicare Set Aside approval was sought from the Claimant, but this \ndiscussion appeared to cease when the Claimant mentioned the possibility of a need for \nadditional  medical. With all  of that  said,  it  is determined  that  it is clear that there is no \nlegitimate basis to terminate the  Claimant’s indemnity  payments for a  period from \nFebruary 18, 2021, until July of 2024, a period over three years, based upon the above \nfacts, and based primarily upon the Respondents #1 “Alive and Well Check Report” that \nthey in  fact had authorized.  Additionally, the  money  from  the  stopped  payments  had \naccrued  prior  to  any  discussion  about  the  settlement  of  the  claim. The  Claimant  has \nsatisfied the required burden of proof by a preponderance of evidence for the 20% penalty \nof $7,761.11 in regard to the late indemnity payments of $38, 805.50, pursuant to A.C.A. \n11-9-802.   \nIf not already paid, and this cannot be determined by the record, the Claimant’s \nrepresentative is entitled to the appropriate portion of attorney fees from Respondents #1 \nfor the $38,805.50 late indemnity payments recovered, plus additional attorney fees for \nthe controverted recovery of the $7761.11 penalty pursuant to pursuant to A.C.A. 11-9-\n715. This award shall bear interest at the legal rate pursuant to A.C.A. 11-9-809. \nAs  for  the  second penalty at  issue in  the current proceedings as requested  by \nRespondent #2, under current rule 11 C.A.R. 25–123, and previously named Arkansas \nWorkers’ Compensation Commission Rule 099.28, it is clear that Respondents #1 failed \nto comply with the notice requirements spelled out in the document called a Certificate of \nAcceptance that was sent to and accepted by a representative of Respondents #1 and \n\nTerri Lockard – G201609 \n18 \n \nwhich contained a signature  of  approval.  This  acceptance  provided Respondents #1 \nwould in  fact contact  the  Trust  Fund  in  the  event it stopped payment  or  changed the \npayments in any way. The proof was clear and unambiguous that Respondents #1 failed \nto notify the Trust Fund that it stopped payment to the Claimant on February 28, 2021, \nthat payment did  not  restart  until  September  12,  2025, and  by  this  action or  lack  of  it, \nRespondents #1 clearly  did  not  comply  with  the  Certificate  of  Acceptance which they \nsigned  and  approved. 11  C.A.R.  25–123  provides employers  or  their  designees  shall \nprovide notice to the Death and Permanent Total Disability Trust Fund within 15 days of \ncontroverting  a  claim  for  dependent  benefits and  that  failure  to  comply  with  the  notice \nrequirements  shall  result  in  a  penalty  of  $15  per  day  for  each  day  an  employer or  its \ndesignee fails to comply, up to a maximum of $10,000.00, unless, after a showing of good \ncause, failure to provide notice is excused by the Commission.    \nHere, an email from the Trust Fund dated May 16, 2023, provided that it appeared \nRespondents  #1  had  not  paid  any  benefits  in  years  to  the  Claimant. Respondents  #1 \nclearly failed to comply with the notice requirements as spelled out in the Certificate of \nAcceptance that was signed and approved by Respondents #1 representative and failed \nto notify Respondent #2, the Trust Fund, of this change of status. In regard to this issue, \nmany of the same facts applicable in regard to the issue of the first penalty above, are \nalso applicable here. Respondents #1 hired a firm to investigate the residency and where \nabouts of the Claimant and the report that they commissioned provided that the Claimant \nwas alive and well and residing at the very same residency that was awarded to her in a \ndivorce  decree. Additionally, the Claimant’s own testimony is found to be believable \nwhere  she  testified  that she  resided  in  the  same  location  when  she  was  receiving \n\nTerri Lockard – G201609 \n19 \n \npayments up and until they were stopped by Respondents #1. Here the proof has satisfied \nthe required burden  of  proof by  a  preponderance  of  the  evidence  that the indemnity \npayments to the Claimant were not stopped for good cause, and that Respondents #1 \nfailed to provide notice to the Trust Fund as required by statute and by the signed and \napproved Certificate of Acceptance.  Due to the fact that the period of time the Claimant \nfailed to receive any disability payments was for a period of over three years, it is found \nby the preponderance of the evidence that the full ten-thousand-dollar ($10,00.00) penalty \nis due and applicable and to be paid by Respondents #1 to Respondent #2.    \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, there is no alternative but to find that the Claimant has satisfied the required \nburden of proof by a preponderance of the evidence for an award of the 20% penalty of \n$7761.11 for the full amount of late indemnity payment of $38, 805.50, pursuant to A.C.A. \n11-9-802, plus attorney fees pursuant to A.C.A. 11-9-715 for the award of the $77611.11 \npenalty, plus the Respondents #1 portion of the attorney fees for the indemnity payment \nif not already paid, and this award shall bear interest at the legal rate pursuant to A.C.A. \n11-9-809. \nAdditionally, there is no alternative but to find that Respondent #2 (The Trust Fund) \nhas satisfied the burden of proof by a preponderance of the credible evidence that they \nare entitled to a $10,000 penalty applicable and due from Respondent #1 and payable to \nRespondent #2 pursuant to 11 C.A.R. 25–123. If not already paid, Respondents #1 are \nordered to pay the cost of the transcript forthwith. \nIT IS SO ORDERED.  \n      ___________________________ \n      JAMES D. KENNEDY \n         Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G201609 TERRI LOCKARD, EMPLOYEE CLAIMANT SAINT JEAN INDUSTRIES, INC., EMPLOYER RESPONDENT #1 TRAVELERS PROPERTY AND CASUALTY, OF AMERICA INSURANCE CARRIER/TPA RESPONDENT #1 DEATH AND PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2 OPINION FILED FEBRUARY...","fetched_at":"2026-05-19T22:31:39.467Z","links":{"html":"/opinions/alj-G201609-2026-02-03","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/LOCKARD_TERRI_G201609_20260203.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}