{"id":"alj-G508595-2023-02-08","awcc_number":"G508595","decision_date":"2023-02-08","opinion_type":"alj","claimant_name":"Tina Webb","employer_name":"Wal-Mart, Inc","title":"WEBB VS. WAL-MART, INC. AWCC# G508595 FEBRUARY 8, 2023","outcome":"dismissed","outcome_keywords":["dismissed:7"],"injury_keywords":["back","lumbar"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Webb_Tina_G508595_20230208.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Webb_Tina_G508595_20230208.pdf","text_length":13183,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. G508595 \n \n \nTINA WEBB, EMPLOYEE CLAIMANT \n \nWAL-MART, INC., \n SELF-INSURED EMPLOYER RESPONDENT NO. 1 \n \nWAL-MART CLAIMS SVCS., INC., \n THIRD-PARTY ADMINISTRATOR RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL \n DISABILITY TRUST FUND RESPONDENT NO. 2 \n \n \nOPINION FILED FEBRUARY 8, 2023 \n \nHearing before Administrative Law Judge O. Milton Fine II on January 20, 2023, in \nJonesboro, Craighead County, Arkansas \n \nClaimant  represented  by  Mr.  Phillip  J.  Wells,  Attorney  at  Law,  Jonesboro, \nArkansas. \n \nRespondents  No.  1  represented  by  Mr.  R.  Scott  Zuerker,  Attorney  at  Law,  Fort \nSmith, 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  a  Motion  to  Dismiss  by \nRespondents.    No  testimony  was  taken.    The  evidentiary  record  consists  of \nClaimant’s Exhibit 1, a compilation of her medical records, consisting of one index \npage  and 36  numbered  pages  thereafter;  Claimant’s  Exhibit  2,  her  response  to \nthe Motion to Dismiss, consisting of two pages; and Respondents No. 1 Exhibit 1, \ntheir  Motion  to  Dismiss  and  exhibits  thereto,  consisting  of  four pages.  Without \n\nWEBB – G508595 \n \n2 \nobjection,  the  Commission’s  file  on  this  claim  has  been  incorporated  herein  by \nreference in its entirety. \n The  record  reflects  the  following  procedural  history:    On  March  16,  2017, \nClaimant (through counsel) filed a Form AR-C with the Commission.  Therein, she \ncontended  that  she  injured  her  head,  lower  back,  and  left  leg  at  work  on \nNovember  9,  2015.    Respondents  accepted  the  leg  injury  as  compensable.  \nHowever, they controverted the back injury in its entirety.  Following a hearing on \nAugust  4,  2017,  in  Jonesboro,  Judge  Blood  issued  an  opinion  on  October  10, \n2017, that contained the following findings of fact and conclusions of law: \n1. The   Arkansas   Workers’   Compensation   Commission   has \njurisdiction of this claim. \n2. The employment relationship existed at all times pertinent, to \ninclude  November  9,  2015,  during  which  time  the  claimant \nearned  an  average  weekly  wage  of  $458.92,  generating \nweekly  compensation  benefit  rates  of  $306.00/$230.00,  for \ntemporary total/permanent partial disability. \n3. On  November  9,  2015,  the  claimant  sustained  an  injury  to \nher  lumbar  spine  arising  out  of  and  in  the  course  of  her \nemployment with respondent, which caused internal harm to \nthe   body   requiring   medical   services   and   resulting   in \ndisability,   with   medical   evidence   supported   by   objective \nfindings establishing the injury, and the injury was caused by \n\nWEBB – G508595 \n \n3 \na  specific  incident  and  identifiable  by  time  and  place  of \noccurrence. \n4. The  November  9,  2015,  compensable  lumbar  injury  of  the \nclaimant  rendered  her  temporarily  totally  disabled  for  the \nperiod  commencing  October  18,  2016,  and  continuing  to  a \ndate to be determined. \n5. Respondent\n1\n  shall  pay  all  reasonable  hospital  and  medical \nexpenses  arising  out  of  the  claimant’s  November  9,  2015, \ncompensable  lumbar  injury,  to  include  that  provided  by  and \nat the directions of Dr. Robert E. Abraham. \n6. Respondent   has   controverted   the   compensability   of   the \nclaimant’s November 9, 2015, compensable lumbar injury in \nits entirety. \n Respondents  No.  1  appealed  this  decision.    On  April  24,  2018,  the  Full \nCommission reversed the above decision, finding that Claimant did not prove by a \npreponderance  of  the evidence that  she  sustained  a  compensable lumbar  injury.  \nWebb  v.  Wal-Mart  Assocs.,  Inc.,  2018  AR  Wrk.  Comp.  LEXIS  216.    Claimant,  in \nturn,  appealed  this  decision.    The  Arkansas  Court  of  Appeals  affirmed  the  Full \nCommission on December 12, 2018.  Webb v. Wal-Mart Assocs., 2018 Ark. App. \n627, 567 S.W.3d 86. \n \n \n1\nUnless  otherwise  indicated,  the  use  of “Respondent” herein  refers  to \nRespondents No. 1. \n\nWEBB – G508595 \n \n4 \n On April 2, 2019, Claimant (again through counsel) filed another Form AR-\nC.  In this instance, she  requested the full range of initial and additional benefits.  \nHowever, in a letter accompanying this filing, her counsel wrote in pertinent part: \nMs. Webb sustained an injury to her lower extremity when she fell \nduring   the   course   of   her   employment.    The   claim   has   been \naccepted  as  compensable  and  benefits  are  currently  being  paid.  \nAn  issue  has  arisen  as  to  the  Claimant’s  entitlement  to  temporary \npartial disability benefits. \n \nNo hearing request was made. \n The  record  reflects  that  no  further  action  took  place  on  the  claim  until \nAugust 31, 2022, when Respondents No. 1 filed the instant Motion to Dismiss with \nthe Commission.  Therein, they contended that it should be dismissed pursuant to \nArk. Code Ann. § 11-9-702(a)(4) (Repl. 2012)\n2\n because more than six months had \ntranspired since the filing of the claim without Claimant making a hearing request, \nand  AWCC  R.  099.13  because  of  a  lack  of  prosecution.    My  office  wrote \nClaimant’s  counsel  on September  8,  2022,  asking  for  a  response  to  the  motion \nwithin 20 days.  Counsel did so that same day.  The responsive pleading reads: \n1. The  Claimant  sustained  a  compensable  injury  to  her  leg.  \nThe   Claimant   has   received   the   payment   of   indemnity \nbenefits and medical payments for continued treatment. \n \n2. The   Claimant   has   not   requested   a   hearing   since   the \nRespondent has accepted the claim as compensable and is \ncurrently paying for authorized medical treatment. \n \n3. The  Claimant  will  continue  into  the  future  receiving  medical \ntreatment that should be paid for by the Respondent. \n \n \n2\nBecause this was an accepted claim, the applicable provision is Ark. Code \nAnn. § 11-9-702(d) (Repl. 2012). \n\nWEBB – G508595 \n \n5 \n \n4. The Claimant requests that the matter be kept open and that \nthere has not been a controverted issue requiring a hearing \nrequest. \n \n5. The Claimant requests that the Motion to Dismiss be denied \nand that the matter continue in an active status. \n \n I  interpreted  the  above  communication  as  a  request  for  a  hearing  on the \nClaimant’s    entitlement    to    additional    benefits,    and    issued    prehearing \nquestionnaires  to  the  parties  on  September  15,  2022.    I  notified  them  that \nbecause  of  this  action,  I  was  holding  the  Motion  to  Dismiss  in  abeyance.  The \nparties filed timely questionnaire responses.  In Claimant’s response, her counsel \nlisted the issues for determination as follows: \nWhether  the  claim  should  be  dismissed  without  prejudice.    The \nClaimant   contends   that   since   the   Respondent   has   paid   all \nreasonable  and  necessary  medical  expenses  there  has  not  been \nthe  need  for  a  hearing.    This  is  the  reason  the  Claimant  has  not \nrequested a hearing within the past six months. \n \nWhile  a  prehearing  telephone  conference  was  set  for  November  7,  2022,  this \nwas postponed on November 4, 2022, due to a scheduling conflict.  In light of the \nabove response, which makes it clear that no issues were ripe for a full hearing, \na  hearing  was  instead  scheduled  on  the  Motion  to  Dismiss.  The  hearing  was \nscheduled   for   January   20,   2023,   at   2:00   p.m.   at   the   Craighead   County \nCourthouse  in  Jonesboro.    The  parties  were  notified  of  this  by  letter  sent  via \ncertified mail on November 22, 2022.  On January 12, 2023, I notified the parties \nthat, by agreement, the hearing was rescheduled for 12:00 p.m. that day.  At the \nhearing, Claimant appeared in person, as did the respective counsels.  Again, no \n\nWEBB – G508595 \n \n6 \ntestimony   was   taken,   but   the   parties   argued   their   respective   positions.  \nRespondents asked for dismissal of the claim without prejudice under Ark. Code \nAnn. § 11-9-702 (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 following stipulations are reasonable and are hereby accepted: \na. The  previous  decisions  in  this  matter  by  Administrative  Law \nJudge Andrew Blood, the Full Commission, and the Arkansas \nCourt  of  Appeals  are  binding  on  this  proceeding  under  the \nLaw of the Case Doctrine. \nb. Claimant   sustained   a   compensable   injury   to   her   lower \nextremity  on  November  9,  2015;  and  Respondents  No.  1 \ncontinue to provide authorized medical care for that injury. \n3. 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. \n\nWEBB – G508595 \n \n7 \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 Arkansas Code Annotated § 11-9-702(d) (Repl. 2012) provides as follows: \n \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation,  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim  may,  upon  motion  and  after \nhearing,  if  necessary,  be  dismissed  without  prejudice  to  the  refiling \nof the claim within the limitation period specified in subsection (b) of \nthis section. \n \nIn addition, 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 \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 \n\nWEBB – G508595 \n \n8 \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 conceded through counsel there are no justiciable \nissues  at  present  regarding  this  claim.    Under Johnson,  supra,  this  claim  should \nthus  be  dismissed  under  Rule  13.    Because  of  this  finding,  it  is  unnecessary  to \naddress the application of § 11-9-702(d). \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 without prejudice. \n\nWEBB – G508595 \n \n9 \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","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. G508595 TINA WEBB, EMPLOYEE CLAIMANT WAL-MART, INC., SELF-INSURED EMPLOYER RESPONDENT NO. 1 WAL-MART CLAIMS SVCS., INC., THIRD-PARTY ADMINISTRATOR RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED FEBRUARY 8, 2023 H...","fetched_at":"2026-05-19T23:10:10.002Z","links":{"html":"/opinions/alj-G508595-2023-02-08","pdf":"https://labor.arkansas.gov/wp-content/uploads/Webb_Tina_G508595_20230208.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}