{"id":"alj-G805579-2023-06-01","awcc_number":"G805579","decision_date":"2023-06-01","opinion_type":"alj","claimant_name":"Keny Sosa","employer_name":"Kawneer Company Inc","title":"SOSA VS. KAWNEER COMPANY INC. AWCC# G805579 JUNE 1, 2023","outcome":"dismissed","outcome_keywords":["dismissed:5","granted:1"],"injury_keywords":["knee","back","shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/SOSA_KENY_G805579_20230601.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SOSA_KENY_G805579_20230601.pdf","text_length":9997,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. G805579 \n \nKENY SOSA, EMPLOYEE   CLAIMANT \n \nKAWNEER COMPANY INC., EMPLOYER RESPONDENT#1 \n \nHELMSMAN MANAGEMENT SERVICES LLC, INSURANCE CARRIER RESPONDENT#1 \n \nDEATH & PERMANENT TOTAL DISABILITY TRUST FUND                                 RESPONDENT#2 \n \nOPINION/ORDER FILED JUNE 1, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant appearing pro se. \n \nRespondents #1 are represented by RICK BEHRING, JR., Attorney, Little Rock, Arkansas. \n \nRespondent #2 is represented by CHRISY L. KING, Attorney, Little Rock, Arkansas; although not \nappearing. \n \nOPINION/ORDER \n \n On August 21, 2018, claimant filed a Form AR-C, alleging that on July 23, 2018, he had injured \nhis left knee and his back.  He was subsequently represented by Ms. Evelyn Brooks. The parties agreed \nthat  claimant suffered  compensable  injuries.    A  full  hearing  before Administrative  Law  Judge  Amy \nGrimes  was  conducted  on  October  1,  2020,  on  the  issues  of  whether  claimant  was  entitled  to \nadditional  medical  treatment  for  his  back  injury  by  Dr.  James  Blankenship,  including  surgery,  and \nwhether Claimant was entitled to temporary total disability benefits from April 1, 2019, to a date yet \nto be determined.  All other issues were reserved.  \nAn opinion was issued by Administrative Law Judge Katie Anderson on January 28, 2021, as \nJudge Grimes was no longer serving as an ALJ as of December 31, 2020.   Judge Anderson denied \n\nSosa-G805579 \n \n2 \n \nclaimant’s request for additional medical treatment by Dr. Blankenship, and further denied his request \nfor temporary total disability benefits.   \nClaimant  appealed  this  decision  to  the  Full  Commission,  which  affirmed  and  adopted  the \ndecision of the ALJ on July 13, 2021 (Commissioner Willhite dissenting).   That decision was appealed \nto the Arkansas Court of Appeals, and affirmed on May 4, 2022, Sosa v. Kawneer Co., 2022 Ark. App. \n195, 645 S.W.3d 26, 2022 Ark. App. LEXIS 198.  \nOn June 20, 2022, claimant filed a second Form AR-C, again alleging a compensable injury on \nJuly 23, 2018.  This AR-C form specified that this claim was for the left shoulder and left knee, omitting \nany reference to the back injury that had previously been litigated.  Claimant was still represented by \nMs. Brooks at that time.  However, Ms. Brooks subsequently filed a Motion to Withdraw, which was \ngranted on July 15, 2022; no other attorney entered an appearance on claimant’s behalf.  \nOn January 18, 2023, respondent #1 filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed his Form AR-C with the Commission, but he had not made a \nrequest for a hearing in that time.    A hearing on respondent’s Motion to Dismiss was scheduled for \nMarch  16,  2023.   Notice of  the  scheduled  hearing was  sent  to  claimant  by certified  mail at  the  last \nknown address in the Commission’s file.  The notice was  received  by  claimant;  in  a  letter  dated \nFebruary 1, 2023, claimant objected to this matter being dismissed.   Claimant was instructed to file a \nprehearing  questionnaire, and  he  did  so  on  March 7,  2023.     A  prehearing  conference  was  held  on \nApril 13, 2023, after which respondent #1 filed an Amended Motion to Dismiss, requesting that this \nmatter be dismissed with prejudice.  The Amended Motion to Dismiss was rescheduled for a hearing \non May 18, 2023. \nAt the hearing, the following exchange took place between the Court, claimant, and counsel \nfor respondent #1:  \n\nSosa-G805579 \n \n3 \n \n The Court:   I'm looking at the transcript of the hearing that \ntook place on October 1, 2020, and the issues that were litigated at that \nhearing. I'll just read them into the record:  \n“The issues to be litigated here today or whether the claimant \nis entitled to medical treatment by Dr Blankenship including a surgery \nwhether claimant is entitled to temporary total disability benefits from \nApril 1, 2019 to a date to be determined and an attorney's fee.” \nAre  you  asking  today  to  be  reimbursed  for  time  you \nmissed   from   work   because   of   the   back   surgery   and   Dr \nBlankenship's  bills  for  the  back  injury?  Is  that  what  you're \nasking?  \n \nClaimant: I'm  asking  for  reimbursement  of  the  back \nsurgery and the time that I have been off since the last time they \npaid me. \n \nThe  Court:  Your AR-C  form  says  you  injured  your  left \nshoulder  and  left  knee  while  working.  It  doesn't  mention  the  back \ninjury. \n \nClaimant: Who wrote this though? \n \nThe Court: Your attorney at the time \n \nClaimant: She probably did but, on the paper, there was - when \nthey took me to the medical thing, I have it on file right here where it \nsays my back was mentioned the first time. \n \nThe Court: But I just read to you that in October 2020 it was \nannounced, probably in this room, that you were litigating your back \ncase in 2020. You heard me read that. That was all that was litigated \nwas the back injury. You're telling me today you want to relitigate \nthe back injury. Right? \n \nClaimant: Correct. Well, right here at first of the C form on \npage one Evelyn Brooks made a mistake and she didn't write my \nback on it but – \n \nThe Court: I can't speak for Ms. Brooks, but I can tell you she \nknew in June of 2022 you cannot relitigate your back injury because it's \nalready  been  litigated  and  decided  by  the  Full  Commission  and  the \nCourt of Appeals.  Even though you don't agree with their decision, a \ndecision on that has been made.  Mr. Behring,  what is your position \non relitigating the back injury? \n \n\nSosa-G805579 \n \n4 \n \nMr. Behring: That it is barred by res judicata and is- \n \nThe Court:  Let's not use a Latin term. I know what the phrase \nmeans.  \n \nMr.  Behring:    I'm  sorry,  Your  Honor.  it  has  already  been \nlitigated. It has already been decided and under the law, once you do \nthat once, you don't get to do it again.  \n \nThe Court:  I have in front of me the decision from the Court \nof Appeals that says, “Mr. Sosa first contends that substantial evidence \ndoes not support the Commission's finding that the back surgery is not \nreasonably  necessary  in  connection  with  his  admittedly compensable \ninjury by the Court.”...  \nLet me quote again from the Court of Appeals. This is page 5 \nof  the  Court  of  Appeals  decision.  \"The  commission  determined \nthat  Sosa  failed  to  prove  that  back  surgery  by  Dr  Blankenship \nwas  reasonably  necessary  in  connection  with  his  compensable \nback injury or that he was entitled to additional temporary total \ndisability  benefits  for  his  back  injury.  That's  what  Judge  Grimes \nfound,  that's  what  the  Full  Commission  found,  and  that's  what  the \nCourt of Appeals found, that you had failed to prove your back injury \nwas connected with your work.  (Emphasis added) \n \nAlthough the AR-C form filed on June 20, 2022, requested benefits for an injury only to his \nleft shoulder and left knee, claimant clearly stated that he sought reimbursement for the cost of a back \nsurgery he had in November 2021, and for compensation from time off work due to that surgery.  His \nstatements at the hearing on the motion to dismiss did not mention his shoulder nor his knee injury.  \nIn  his  prehearing  questionnaire,  he  listed  only Dr. Blankenship’s notes  regarding  the  November  1, \n2021 back  surgery  as  those  he  would  bring  to  the  hearing.    As  set  forth  above,  claimant  answered \naffirmatively when asked if he was trying to relitigate his back injury claim.  As I explained to him at \nthe hearing, relitigating this matter is not allowed under Arkansas law.  For that reason, and without \n\nSosa-G805579 \n \n5 \n \naddressing respondent’s  argument  pursuant  to  §11-9-702  (a)(4)  and  (d),\n1\n  I  find  that  the  Motion  to \nDismiss  with  prejudice  on  the  grounds  that  this  particular  injury  has  been  previously  litigated  and \ndecided in respondent #1’s favor should be granted.  \nIn  its  Amended  Motion  to  Dismiss, Respondent  #1  sought sanctions  under  §11-9-717 and \nRule  11  of  the  Arkansas Rules  of  Civil  Procedure  for  bringing  this  action.  I  understand  why  such \nsanctions were sought, but I am going to decline to impose sanctions at this time. Claimant is not an \nattorney, and I do not expect him to fully understand the application of res judicata. I find it hard to \nbelieve that his attorney did not explain to him why the back injury was not included in the second \nAR-C form filed on his behalf on June 20, 2022; Ms. Brooks undoubtedly knew the back injury claim \ncould not be relitigated, because of its omission from the AR-C filed after the decision by the Arkansas \nCourt of Appeals.  However, there is no evidence presented that claimant had been made aware of \nthe bar to additional litigation.  At the hearing, claimant said “the surgery now serves as new evidence \nsupporting my case...”  Indeed, the surgery took place five months after the decision by the Court of \nAppeals, and I do not find he acted in bad faith in believing the subsequent surgery was relevant to \nhis  claim.    However,  there  is  now  no  doubt  claimant  has  been  made  aware  of  the  finality  of  the \nprevious litigation and can expect sanctions if any further action is taken regarding this claim.  \nThis matter is hereby dismissed with prejudice.  \nIT IS SO ORDERED. \n  \n                 _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE \n \n \n1\n While it was unnecessary for me to decide if a dismissal pursuant to these statutes was  appropriate, I  note that it had \nbeen over six months since the AR-C of June 20, 2022, was  submitted and when respondent’s Motion to Dismiss was \nfiled.","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G805579 KENY SOSA, EMPLOYEE CLAIMANT KAWNEER COMPANY INC., EMPLOYER RESPONDENT#1 HELMSMAN MANAGEMENT SERVICES LLC, INSURANCE CARRIER RESPONDENT#1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT#2 OPINION/ORDER FILED JUNE 1, 2023 Hearing before ADMI...","fetched_at":"2026-05-19T23:05:54.279Z","links":{"html":"/opinions/alj-G805579-2023-06-01","pdf":"https://labor.arkansas.gov/wp-content/uploads/SOSA_KENY_G805579_20230601.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}