{"id":"alj-G307750-2023-10-26","awcc_number":"G307750","decision_date":"2023-10-26","opinion_type":"alj","claimant_name":"Julie Dunevant","employer_name":"St. Bernard Med. Ctr","title":"DUNEVANT VS. ST. BERNARD MED. CTR. AWCC# G307750 OCTOBER 26, 2023","outcome":"dismissed","outcome_keywords":["dismissed:6"],"injury_keywords":["back","lumbar"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Dunevant_Julie_G307750_20231026.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Dunevant_Julie_G307750_20231026.pdf","text_length":11053,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. G307750 \n \n \nJULIE DUNEVANT, EMPLOYEE CLAIMANT \n \nST. BERNARD MED. CTR., \n SELF-INSURED EMPLOYER RESPONDENT NO. 1 \n \nRISK MGMT. RESOURCES, \n THIRD-PARTY ADM’R RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL \n DISABILITY TRUST FUND RESPONDENT NO. 2 \n \n \nOPINION FILED OCTOBER 26, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on  October 20, \n2023, in Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  No.  1  represented  by  Mr.  S.  Shane  Baker,  Attorney  at  Law, \nJonesboro, Arkansas. \n \nRespondent  No.  2,  represented  by  Ms.  Christy  L.  King,  Attorney  at  Law,  Little \nRock, Arkansas, excused from participation. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on  the Motion to Dismiss filed \nby Respondents No. 1.  A hearing on the motion was conducted on  October 20, \n2023,  in  Jonesboro,  Arkansas.    Claimant,  who  is pro  se,  failed  to  appear.  \nRespondents  No.  1  were  represented  at  the  hearing  by  Mr.  S.  Shane  Baker, \nAttorney  at  Law,  of  Jonesboro,  Arkansas.    Respondent  No.  2,  represented  by \nMs.  Christy  L.  King,  Attorney-at-Law,  Little  Rock,  Arkansas,  was  excused  from \n\nDUNEVANT – G307750 \n \n2 \nparticipation.    The  record  consists  of  the  Commission’s  file,  which  without \nobjection has been incorporated herein in its entirety by reference. \n The evidence reflects that  per the First Report of Injury or Illness filed on \nSeptember 30, 2013, Claimant purportedly suffered an injury to her back at work \non September 22, 2013, when she was helping a patient out of bed.  According \nto  the  Form AR-2 that  was  filed  on  October  4,  2013,  Respondents  No.  1 \naccepted the claim and paid medical and indemnity benefits pursuant thereto. \n On  January  16,  2014,  through  then-counsel  M.  Scott  Willhite,  Claimant \nfiled  a  Form  AR-C,  requesting  initial  benefits.  He  followed  this  up  on  February \n20,  2014,  with  a  hearing  request.    The  file  was  assigned  to  then-Administrative \nLaw Judge Andrew L. Blood.  The parties stipulated that Claimant’s lumbar injury \nwas  compensable,  that  she  was  assigned  an  impairment  rating  of  ten  percent \n(10%)  to  the  body  as  a  whole,  and  that  she  reached  maximum  medical \nimprovement on February 14, 2014.  In a prehearing order entered on March 31, \n2014,  Judge  Blood  scheduled  a  hearing  for  June  6,  2014,  on  the issues  of \nClaimant’s   entitlement   to   wage   loss   disability   benefits  and  a   controverted \nattorney’s  fee.    In  the  meantime,  Claimant  requested  a  change  of  physician.  \nJudge Blood had the file temporarily reassigned to the Medical Cost Containment \nDivision to process the request, but kept the hearing on his docket.  However, he \nlater  granted  Claimant’s  continuance motion on  May  29, 2014,  returning  the  file \nto  the  Commission’s  general  files.    Thereafter,  on  June  19,  2014,  a  change-of-\n\nDUNEVANT – G307750 \n \n3 \nphysician  order  was  entered,  changing  Claimant’s  authorized  treating  physician \nto Dr. William Ackerman. \n Through  her  then-attorney,  Claimant  made  a  new  hearing  request  on \nDecember  2,  2014.    Following  another  prehearing  telephone  conference,  Judge \nBlood on December 15, 2014, reset the hearing for March 6, 2015, and added an \nissue  concerning  whether  Claimant was  entitled  to  additional  temporary  total \ndisability  benefits.    But  on  February  25,  2015,  Claimant  again  requested  a \ncontinuance from Judge Blood, representing that a tentative settlement had been \nreached.  Based on this, the judge canceled the hearing. \n The  file,  however,  reflects  that  the  settlement  did  not  proceed  to  a  joint \npetition.    On  June  19,  2015,  her  then-attorney  made  a  third  hearing  request  to \nthe  Commission.    Judge  Blood  conducted  a  prehearing  telephone  conference \nwith the parties on July 6, 2015; and thereafter,  he reset the hearing for August \n21,  2015.    But  on  August  12,  2015,  based  on  a  change  in  Claimant’s  physical \ncondition that necessitated a surgical consult, she again sought a continuance of \nher   hearing.      This  was   granted,  and  the   file   was   again   returned   to   the \nCommission’s general files. \n On  February  28,  2017,  Claimant  through  her  counsel  made  another \nhearing   request.      Judge   Blood,   following   another   prehearing   telephone \nconference  on  March  13,  2017,  issued  a  prehearing  order  that  scheduled  a \nhearing (on the same issues as raised previously) for June 2, 2017.  The copy of \nthe  order  that  was  sent  to  Claimant  by  certified  mail  was  returned,  unclaimed.  \n\nDUNEVANT – G307750 \n \n4 \nShortly thereafter, on March 20, 2017, Respondent No. 2 accepted joinder to the \nclaim.    But  the  Fund  informed  Judge  Blood  on  May  19,  2017,  that  they  were \ndeferring  to  the  outcome  of  litigation  and  were  waiving  their  appearance  at  the \nhearing.  On May 26, 2017, Respondents No. 1 requested a continuance, based \non  new  medical  evidence  and  the  probability  that  the  matter  could  be  settled.  \nJudge  Blood,  however,  denied  the  continuance  request.    Despite  this,  he \nreversed  course  on  May  30,  2017,  and  continued  the  hearing  for  two weeks  so \nthat  the  parties  could  pursue  an  amicable  resolution.    After  being  informed on \nJune  15,  2017,  that  the  parties  had  reached  a  compromise  on  Claimant’s \nentitlement  to  additional  indemnity  benefits  and  would  be  preparing  an  agreed \norder  for  his  approval,  Judge  Blood  again  canceled  the  hearing.  On  June  30, \n2017,  he  entered  an  agreed  order  that  provided  for  the  payment  to  Claimant  of \n$70,000.00 in wage loss disability benefits and a controverted fee to her counsel. \n No further action on the claim took place until July 21, 2023.  On that date, \ncurrent  counsel  for  Respondents  No.  1  entered  his  appearance  and  filed  the \ninstant  Motion  to  Dismiss.    Therein,  it  was  argued  that  dismissal  was  warranted \nunder  AWCC  R.  099.13 and  Ark.  Code  Ann.  § 11-9-702  (Repl.  2012)  because \nthere has been no activity on the file “in quite some time.”  On July 31, 2023, my \noffice wrote  Claimant, asking for a response to the motion  within 20 days.  This \ncorrespondence was sent to her by first-class and certified mail to the address for \nher listed in the file and on her Form AR-C.  However, both of these items were \nreturned to the Commission, unclaimed/undelivered. \n\nDUNEVANT – G307750 \n \n5 \n A  hearing  on  the  Motion  to  Dismiss  was  scheduled on  August  24,  2023, \nfor  October  20,  2023,  at  1:00  p.m.  at  the  Craighead  County  Courthouse  in \nJonesboro.    The  Notice  of  Hearing  was  sent  to  Claimant  (using  the  same \naddress  as  before)  by  certified  and  first-class  mail.    As  before,  both  items  were \nreturned, unclaimed/undelivered. \n The hearing on the Motion to Dismiss proceeded as scheduled on October \n20,  2023.    Again,  Claimant  failed  to  appear.    Respondents  No.  1  appeared \nthrough counsel and argued for dismissal of the action under the aforementioned \nauthorities. \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. All parties received notice of the Motion to Dismiss and the hearing \nthereon pursuant to AWCC R. 099.13. \n3. Respondents   No.  1  have  proven  by  a  preponderance  of  the \nevidence  that  Claimant  has  failed  to  prosecute  her  claim  under \nAWCC R. 099.13. \n4. Respondents’ Motion to Dismiss should be, and hereby is, granted. \n5. This claim is hereby dismissed without prejudice. \n\nDUNEVANT – G307750 \n \n6 \nIII.  DISCUSSION \n AWCC 099.13 provides: \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 \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).  (Emphasis added) \n As  the  moving  party,  Respondents  No.  1  under  Ark.  Code  Ann.  §  11-9-\n705(a)(3)  (Repl.  2012)  must  prove  their  entitlement  to  the  relief  requested–\ndismissal  of  this  claim–by  a  preponderance  of  the  evidence.    This  standard \nmeans  the  evidence  having  greater  weight  or  convincing  force.   Barre  v. \nHoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., \n212 Ark. 491, 206 S.W.2d 442 (1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because she has taken no further action \nin  pursuit  of it—including appearing  at  the  October 20,  2023,  hearing  to  argue \nagainst  its  dismissal—since  the  July  3,  2017,  entry  of  the  agreed  order.    Thus, \nthe evidence preponderates that dismissal is warranted under Rule 13.  Because \nof this finding, it is unnecessary to address the applicability of  Ark. Code Ann. § \n11-9-702 (Repl. 2012). \n\nDUNEVANT – G307750 \n \n7 \n That  leaves  the  question  of  whether  the  dismissal  of the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    In Abo  v.  Kawneer  Co.,  2005  AR Wrk.  Comp. \nLEXIS  510,  Claim  No.  F404774  (Full  Commission  Opinion  filed  November  15, \n2005),  the  Commission  wrote:    “In  numerous  past  decisions,  this  Commission \nand  the  Appellate  Courts  have  expressed  a  preference  for  dismissals without \nprejudice.”    (Emphasis  added)(citing Professional  Adjustment  Bureau  v.  Strong, \n75 Ark. 249, 629 S.W.2d 284 (1982)).  Respondents No. 1 at the hearing asked \nfor a dismissal with prejudice.  But based on the above authorities, I find that the \ndismissal of the claim should be and hereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \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).","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. G307750 JULIE DUNEVANT, EMPLOYEE CLAIMANT ST. BERNARD MED. CTR., SELF-INSURED EMPLOYER RESPONDENT NO. 1 RISK MGMT. RESOURCES, THIRD-PARTY ADM’R RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED OCTOBER 26, 2023 Hear...","fetched_at":"2026-05-19T23:02:10.412Z","links":{"html":"/opinions/alj-G307750-2023-10-26","pdf":"https://labor.arkansas.gov/wp-content/uploads/Dunevant_Julie_G307750_20231026.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}