{"id":"alj-G807164-2024-02-29","awcc_number":"G807164","decision_date":"2024-02-29","opinion_type":"alj","claimant_name":"Kimberly Clardy","employer_name":"University Of Arkansas Fayetteville","title":"CLARDY VS. UNIVERSITY OF ARKANSAS FAYETTEVILLE AWCC# G807164 FEBRUARY 29, 2024","outcome":"dismissed","outcome_keywords":["dismissed:9","granted:1"],"injury_keywords":["shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/CLARDY_KIMBERLY_G807164_20240229.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CLARDY_KIMBERLY_G807164_20240229.pdf","text_length":9465,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. G807164 \nKIMBERLY CLARDY, EMPLOYEE CLAIMANT \n \nUNIVERSITY OF ARKANSAS FAYETTEVILLE, EMPLOYER RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER RESPONDENT \n \n OPINION FILED FEBRUARY 29, 2024 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington  \nCounty, Arkansas. \n \nClaimant represented by Aaron L. Martin, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by Robert H. Montgomery, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On January 18, 2024, a prehearing conference was conducted with the attorneys for the parties. \nA prehearing Order was entered that same day. Rather than schedule this matter for a hearing, the \nparties advised that a stipulated record would be submitted on the two issues set forth below, along \nwith a brief from each party setting forth its position on how the law applies to the stipulated facts. \nThe stipulated facts and the briefs of the parties along with portions of the Commission’s file are blue \nbacked and made a part of the record.  \n At the prehearing conference, the parties stipulated as follows:  \n 1.       The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2.       The employee/employer/carrier relationship existed October 3, 2018.  \nThereafter, the parties submitted these Stipulated Facts as follows: \n 1.     That the claimant was working as a temporary employee for the University of Arkansas       \non October 3, 2018; \n\nClardy-G807164 \n2 \n \n 2.      That the claimant alleges an accidental injury to her right shoulder on October 3, 2018; \n 3.        That  the  claimant  called  Company  Nurse  on October  8,  2018  to  report  an  on-the-job \ninjury; \n 4.     That the claimant received medical treatment at Pat Walker Health Center on October 9, \n2018 and the bill related to that treatment was paid by respondents on November 4, 2018; \n 5.        That  no  additional medical  or  indemnity  benefits  were  paid  relative  to  this  claim  after \nNovember 4, 2018; \n 6.    That the claimant filed an AR-C with the Commission for initial and additional benefits \non April 5, 2019; \n 7.      That the respondent filed a Motion to Dismiss (MTD) for failure to prosecute on October \n30, 2023; \n 8.     That the claimant filed her Response in Opposition to the MTD on November 27, 2023, \nand expressed her wish to move forward with a hearing on her claim. \n The issues presented to me on this stipulated record were: \n            1.       Whether respondents’ Motion to Dismiss should be granted. \n2.       Whether this claim is barred by the statute of limitations. \n All other issues are reserved by the parties. \n From  a  review  of  the entire record, including  the  stipulations  of  the  parties, the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1. The stipulations agreed to by the parties at a pre-hearing conference conducted on January \n18, 2024 and contained in a pre-hearing order filed that same date are hereby accepted as fact, as are \nthe stipulated facts submitted on January 23, 2024. \n\nClardy-G807164 \n3 \n \n \n 2.  The claim should be and is hereby dismissed without prejudice pursuant to Ark. Code Ann. \n§11-9-702(a)(4), §11-9-702(d) and AWCC R. 099.13 for want of prosecution. \n 3.   The issue regarding the statute of limitations is moot in light of this dismissal.  \n FACTUAL BACKGROUND \n Prior to the prehearing conference, respondent filed a Motion to Dismiss, alleging there had \nbeen no activity in this matter for over six months. In its prehearing questionnaire, respondents raised \na statute of limitations defense. During the discussion with the parties at the prehearing conference, \nthe parties advised that in lieu of a hearing, they could submit a set of stipulated facts regarding the \ntwo procedural motions, as a ruling for respondent on either would dispose of this matter.     \n After submitting the joint stipulations set forth below, the parties submitted briefs in support \nof their positions. The Employer’s First Report of Injury form, the Intent to Controvert Claim form, \nthe Report  of  Compensation  Paid, the claimant’s AR-C form, respondents’ Motion  to Dismiss, \nclaimant’s response to  that motion, the  prehearing  questionnaires  submitted  by  the  parties, the \nprehearing order, the Joint Stipulations, and the briefs of the parties are blue backed and made a part \nof the record.  \nADJUDICATION \n \n In its Motion to Dismiss, respondents argued that pursuant to both Ark. Code Ann. §11-9-\n702(a)(4) and Ark. Code Ann. §11-9- 702(d), this claim should be dismissed. In its responses to the \nprehearing questionnaire, respondents raised the defense that the statute of limitations had expired, \nand this matter could no longer be pursued. Finding for the respondents on the Motion to Dismiss, I \ndo not need to determine if the statute of limitations has run.   \n In her brief  opposing  the Motion  to Dismiss,  claimant  cited  four  decisions  made  by other \nadministrative law judges to demonstrate that it is discretionary for me to dismiss this case or decline \n\nClardy-G807164 \n4 \n \n \nto do so. I read not only those cases but many other decisions, both at the trial level and on appeal to \nthe Full Commission\n1\n. I agree that the word “may” in Ark. Code Ann. §11-9-702 and Commission \nRule 099.13 gives  me latitude  to deny  the  motion even  though  it  is  stipulated  that more  than  six \nmonths  have  passed  without claimant  making a  request  for a  hearing.    In  this  matter,  however,  I \nbelieve it would be an abuse of discretion to deny the Motion to Dismiss.  \n In  her contentions  set  forth  in her  prehearing  questionnaire,  claimant stated that  “she \nsustained a compensable injury to her right shoulder on October 3, 2018.”  Respondents agreed that \nclaimant reported an injury on that date and paid for her treatment for that injury, which amounted \nto a visit to a physician. (Stipulations 1-5 above.)  Respondents notified the Commission of its intent \nto controvert the claim.  Claimant then filed an AR-C, seeking initial benefits for temporary partial \ndisability,  medical expenses, and  attorney  fees; on  the  same  form,  claimant requested  additional \ntemporary  total  disability  benefits,  additional  medical expenses, and an attorney’s  fees for a right \nshoulder  injury.   The  boxes  that  were perhaps  incorrectly checked are of  no consequence to  my \ndecision as per Dillard v.  Benton County Sheriff's Office, 87 Ark. App. 379, 192  S.W.3d 287 (2004); the \nclaim was submitted six months after the alleged injury.    \n What is of consequence, though, is that nothing happened in this case for four and a half years \nafter  the  AR-C  was  filed.   No additional medical  records  were referenced  in claimant’s prehearing \nquestionnaire except those from Pat Walker Health Center, which the parties stipulated were paid by \nrespondents.    That indicates there  had  been  no  additional  treatment after  the  initial physical \nexamination.  The Intent to Controvert this claim was filed on October 23, 2018, over five years before \nthe Motion to Dismiss was filed.    \n \n1\n In  January  2024,  the  Full  Commission  directed  that  administrative  law  judges should  not  cite  their  opinions  as \nprecedent.   However, that did not prohibit me from reading those opinions for guidance.  \n\nClardy-G807164 \n5 \n \n \n Ark. Code. Ann §11-9-702 provides for initial claims:  \n(a)(4) If within six (6) months after the filing of a claim for compensation no \nbona fide request for a hearing has been made with respect to the claim, the \nclaim may, upon motion and after hearing, be dismissed without prejudice to \nthe  refiling  of  the  claim  within  limitation  periods  specified  in  subdivisions \n(a)(1)-(3) of this section.  \n \n For claims for additional benefits: \n \n(d)  If  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation no bona fide request for a hearing has been made with respect \nto the claim, the claim may, upon motion and after hearing, if necessary, be \ndismissed without prejudice to the refiling of the claim within the limitation \nperiod specified in subsection (b) of this section.  \n \n Thus,  regardless  of  how  this  matter  is  viewed—as  a  claim for  initial  benefits,  additional \nbenefits, or both--I believe it would be an abuse of discretion to deny a motion to dismiss a claim that \nhas sat dormant for so long. As such, I am granting respondents’ motion.  There does not appear to \nbe any circumstances to mandate that this matter be dismissed with prejudice (see Johnson v. Triple T \nFoods, 55 Ark. App. 83, 929 S.W.2d 730 (1996) and Loosey v. Osmose Wood Preserving Co., 23 Ark. App. \n137, 744 S.W.2d 402 (1988) for cases dismissed with prejudice). Therefore, this matter is dismissed \nwithout prejudice.   \nORDER \n \n Because  of  the  dismissal  of  this claim  pursuant  to  Rule  13,  the  other  issue submitted  on \nStipulated Facts for determination will not be addressed.  Respondent's Motion to Dismiss is granted. \nThe instant claim is dismissed without prejudice. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G807164 KIMBERLY CLARDY, EMPLOYEE CLAIMANT UNIVERSITY OF ARKANSAS FAYETTEVILLE, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER RESPONDENT OPINION FILED FEBRUARY 29, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Was...","fetched_at":"2026-05-19T22:57:54.210Z","links":{"html":"/opinions/alj-G807164-2024-02-29","pdf":"https://labor.arkansas.gov/wp-content/uploads/CLARDY_KIMBERLY_G807164_20240229.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}