{"id":"alj-G903144-2023-03-28","awcc_number":"G903144","decision_date":"2023-03-28","opinion_type":"alj","claimant_name":"Preston Allen","employer_name":"Staffmark Investments, LLC","title":"ALLEN VS. STAFFMARK INVESTMENTS, LLC AWCC# G903144MARCH 28, 2023","outcome":"dismissed","outcome_keywords":["dismissed:1","denied:1"],"injury_keywords":["back","cervical","shoulder","neck"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//ALLEN_PRESTON_G903144_20230328.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ALLEN_PRESTON_G903144_20230328.pdf","text_length":17832,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nWCC NO. G903144 \n \nPRESTON ALLEN, EMPLOYEE CLAIMANT \n \nSTAFFMARK INVESTMENTS, LLC, \n EMPLOYER RESPONDENT NO. 1 \n \nACE AMERICAN INS. CO., \n CARRIER RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND, \n CARRIER RESPONDENT NO. 2 \n \n \n \nOPINION FILED MARCH 28, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch on March 10,  2023,  in  Little \nRock, Pulaski County, Arkansas. \n \nClaimant Preston Allen is representing himself, pro se. \n \nRespondent No. 1 was represented by Ms. Melissa Wood, Attorney at Law, Little Rock, \nArkansas. \n \nRespondent No.  2 is  represented  by  Ms.  Christy  L.  King,  Attorney at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n A  prehearing  telephone  conference  was  conducted  on  January  17,  2023,  in  the \nabove-styled  case.  Claimant  was pro  se.    Respondent  No.  1  was  represented  by  Ms. \nMelissa  Wood,  Attorney at  Law, of  Little  Rock,  Arkansas.   Respondent  No.  2  was \nrepresented  by  Ms.  Christy  L.  King,  Attorney at  Law, of  Little  Rock,  Arkansas.  \nPrehearing information filings have previously been submitted by the parties. \n Claimant was advised that he has the right to an attorney, that the law limits what \nfee  an  attorney  may  charge  for  representing  a  claimant,  and  that  he  had  the  right  to \n\nALLEN – G903144 \n \n2 \npostpone the conference to obtain representation. Being fully advised of his rights and \nresponsibilities, Claimant nonetheless elected to represent himself.  \nThe parties have agreed to the following stipulation: \n1. The previous decisions in this matter are binding on this proceeding under \nthe Law of the Case Doctrine. \n By  agreement  of  the  parties,  the  issues  to  be  presented  for  determination  are \nlimited to the following: \n1. Whether   Claimant   is   entitled   to   additional   medical   treatment   of   his \nstipulated compensable right arm, right leg, and lower back injuries. \n2. Whether Claimant sustained a compensable injury to his cervical spine by \nspecific incident. \n3. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment of his alleged cervical spine injury. \n4. Whether  Claimant  is  entitled  to  an  impairment  rating  and  permanent \npartial  disability  benefits  in  connection  with  his  alleged  cervical  spine \ninjury. \n5. Whether  Claimant  is  entitled  to  benefits  under  Ark.  Code  Ann.  § 11-9-\n505(a) (Repl. 2012). \n6. Whether Claimant is permanently and totally disabled or, in the alternative, \nentitled to wage loss disability benefits. \nAll  other  issues  have  been  reserved.  Two  dispositive  issues  were  raised  during \nthe  hearing.  The  first was  whether  the  issues  raised  in  this  hearing  were  precluded by \n\nALLEN – G903144 \n \n3 \nthe Doctrine of Res Judicata and the Law of the Case Doctrine. The second dispositive \nissue is whether the issues are precluded by the statute of limitations. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the record,  including  medical  reports,  documents,  and  other \nmatters  properly  before  the  Commission,  and  having  had  an  opportunity to  hear  the \ntestimony of the witnesses and to observe their demeanor, I hereby make the following \nfindings  of  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  over \nthis claim. \n2. Claimant’s   first   issue,   whether   he   is   entitled   to   additional   medical \ntreatment  of  his  stipulated  compensable  right  arm,  right  leg,  and  lower \nback  injuries,  have  been  fully,  fairly,  and  completely  litigated  under  a \nprevious claim filed by Claimant. Therefore, I find that Res Judicata/Law of \nthe Case Doctrine, applies to this issue and it will not be further addressed \nin this opinion since those issues were previously resolved.  \n3.  The Commission further finds that issues 2-6 are barred by the statute of \nlimitations.  As  a  result,  all  reserved  issues  are  likewise  barred  by  the \nstatute of limitations and will not be addressed in this opinion. This case is \nhereby dismissed. \n \n \n\nALLEN – G903144 \n \n4 \nRES JUDICATA/LAW OF THE CASE DOCTRINE \nFacts of Case. \n The  date  of  injury  for  this  claim  is  May  8,  2019.  An  AR-2  form  was  filed \nwith the Commission on May 16, 2019, accepting strains/contusion  to lower back, right \nshoulder, right arm, and the right leg by Respondent No. 1. An AR-C was filed  for this \nclaim  on  May  28, 2019,  by  the  claimant’s  previous attorney,  stating  that  “claimant  was \nmoving a sheet of metal when he slipped on fluids on the floor causing him to fall and \nthe metal hit his back.  Claimant sustained injuries to his back, right shoulder, right leg, \nand  other  whole  body.”  All  boxes  except  for  the  Other  box were  marked  in  both  initial \nand additional benefits. The Claimant’s attorney was granted an order to withdraw from \nthe claim on December 6, 2019. \nA previous hearing was held in this claim on August 19, 2020. The claimant was \nnot  represented  by  an  attorney  and was  therefore  Pro  se.  In  Perry  v.  State,  287  Ark. \n384,  699  S.W.2d  739  (1985),  the court  noted  that  “[W]e  hold pro  se  litigants  to  the \nsame  requirement  to  which  we  hold  attorneys.  Weston  v.  State,  265  Ark.  58,  576 \nS.W.2d  705  (1979).”   According  to  the  Administrative  Law  Judge  Opinion  filed  on \nNovember 10, 2020, the issues were: \n1.  Whether the Claimant is entitled to additional medical treatment and payment for \nunpaid medical bills. \n2.  Whether the Claimant has reached maximum medical improvement. \n3.  Whether the Claimant is entitled to temporary total disability benefits. \n4.  Whether the Claimant is entitled to permanent partial disability benefits. \n\nALLEN – G903144 \n \n5 \n \n5. All other issues, including Claimant’s right to permanent and total disability \nbenefits are reserved. \nThe Administrative Law Judge made the following Findings of Fact and Conclusions of \nLaw: \n1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n2. The   employer/employee/carrier   relationship   existed   on   May   8,   2019,   when \nClaimant sustained compensable injuries to his lower back, right arm, and right leg. \n3. The  Claimant  earned  an  average  weekly  wage  of  $645.35,  which  entitles  him  to \nweekly  compensation  benefits  of  $430.00,  for  temporary  total  and  $323.00  for \npermanent partial disability. \n4. The  claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence that  he  is \nentitled  to  additional  medical  treatment  and  payment  for  unpaid  medical bills \nincurred by the Claimant at Great River Medical Center in October of 2019. \n5. The   preponderance  of   the  evidence   establishes   that   the   claimant   reached \nmaximum medical improvement on August 19, 2019. \n6. The  claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he  is \nentitled to additional temporary total disability benefits after August 19, 2019. \n7. The  claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence that  he  is \nentitled to permanent partial disability benefits. \n8. All other issues are reserved. \n \n\nALLEN – G903144 \n \n6 \nClaimant  appealed  this  decision  to  the  Full  Commission  that  affirmed the \nAdministrative  Law  Judges’  decision. Claimant  next  appealed  his  decision  to  the \nArkansas Court of Appeals. The Arkansas Court of Appeals affirmed the Commission’s \ndecision  for  claims  relating to  Claimants  injuries  to  his  lower  back,  right  arm,  and  right \nleg. Allen v. Staffmark Invs., 2022 Ark. App. 252, 646 S.W.3d 646 (2022).  It should be \nnoted  that  Claimant’s  cervical  spine  injury  occurred on  the  same  date  as  his  other \ninjuries,  May  8,  2020.  The  Claimant  has  stated,  in  his  March  10,  2023,  full-hearing \ntestimony, that his cervical spine injury occurred on the same date as his other injuries \nin  his  previous  case  but  was  not  specifically  litigated.  However,  Claimant’s  AR-C,  filed \non May 28,  2019,  does  not  specifically  mention  a  neck  or  cervical  spine  injury.  The \nclaimant’s  first  specific  request  for  benefits  for  his  cervical  spine  were  made  at  a \nprehearing telephone conference held on December 19, 2022. \nThis Court has requested briefs from both sides on March 10, 2023, on the issue \nof when was the last payment of benefits made by the Respondent regarding the May 8, \n2019,  injury.  Those  briefs  have  been  received,  blue-backed  and  made  a  part  of  the \nofficial record for this case. \nDiscussion. \nClaimant  and  Respondents  have  both  stipulated that  previous  decisions  in  this \nmatter are binding on this proceeding under the Law of the Case Doctrine/Res Judicata.  \nThis is a threshold issue. \n The  doctrine  of res  judicata  applies  to  decisions  of  the  Commission.   Harvest \nFoods  v.  Washam,  52  Ark.  App.  72,  914  S.W.2d  776  (1996).    In Gibbs  v.  Moffatt \n\nALLEN – G903144 \n \n7 \nLogging,   2007   AWCC   109,   Claim   No.   F403435   (Full   Commission   Opinion   filed \nSeptember 12, 2007), the Commission set forth the applicable law concerning this: \nThe  purpose  of  the res  judicata  doctrine  is  to  put  an  end  to  litigation  by \npreventing  a  party  who  had  one  fair  trial  on  a  matter  from  relitigating the \nmatter a second time.  Cox v. Keahey, 84 Ark. App. 121, 133 S.W.3d 430 \n(2003),  citing Brandon  v.  Arkansas  W.  Gas  Co.,  76  Ark.  App.  201,  61 \nS.W.3d  193  (2001).   Res  judicata  applies  where  there  has  been  a  final \nadjudication on the merits of the issue by a court of competent jurisdiction \non  all  matters  litigated  and  those  matters  necessarily  within  the  issue \nwhich might have been litigated.  Beliew v. Stuttgart Rice Mill, 64 Ark. App. \n334, 987 S.W.2d 281 (1998).  The key question regarding the application \nof  res  judicata  is  whether  the  party  against  whom  the  earlier  decision  is \nbeing  asserted  had  a  full  and  fair  opportunity  to  litigate  the  issue  in \nquestion.  Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993). \n \nIn turn, the Arkansas Court of Appeals in Thurman v. Clarke Industries, Inc., 45 \nArk.  App.  87,  872  S.W.2d  418  (1994)  explained  the  Law  of  the  Case  Doctrine  as \nfollows: \nMoreover,  matters  decided  on  a  prior  appeal  to  this  court  are  the  law  of \nthe case and govern our actions on a subsequent appeal to the extent that \nwe  are  bound  by  them  even  if  we  were  inclined  at  the  latter  time  to  say \nthat we had been wrong initially. \n \nConsidering   these   standards,   Claimant’s   entitlement   to   additional   medical \ntreatment  for  his  stipulated  compensable  right  arm,  right  leg,  right  shoulder,  and  lower \nback injuries that occurred on May 8, 2019, were litigated before Judge Barbara Webb, \nwho  found  on  November  20,  2020,  that  Claimant  failed  to  prove  entitlement  to  such \nbenefits.  This  finding  was  affirmed  and  adopted  by  the  Full  Commission,  and  then \nappealed  to  the  Arkansas  Court  of  Appeals.  The  Arkansas  Court  of  Appeals  affirmed \nthe Commission’s decision. Allen v Staffmark Invs, 2022 Ark. App. 252, 2022 Ark. App. \nLEXIS 226 (2022). The Doctrine of Law of the Case prohibits a court from reconsidering \n\nALLEN – G903144 \n \n8 \nissues of law and fact that have already been decided on appeal. Cadillac Cowboy, Inc. \nv.  Jackson,  347  Ark.  963,  69  S.W.3d  383  (2002).  The  key  question  regarding  the \napplication  of Res  Judicata  is  whether  the  party  against  whom  the  earlier  decision  is \nbeing asserted had a full and fair opportunity to litigate the issues in question. Cater v. \nCater,  311  Ark.  627,  846  S.W.2d  173  (1993);  Pine  Bluff  Warehouse  v.  Berry,  51  Ark. \nApp. 139, 912 S.W.2d 11 (1995). Thus, I find that  Claimant did have an opportunity to \nlitigate  Issue  1  fully  and  fairly before  the  Administrative  Law  Judge  and  the  Full \nCommission during his previous claim. The Claimant has not presented any evidence to \nthe  contrary.  The  Arkansas  Court  of  Appeals  reviewed  the  decision  of  the  Full \nCommission and did not note any irregularities with Claimant’s opportunity to litigate his \ncase fully and fairly. I further find that Issue 1 has been resolved by previous final court \nruling on the merits and will not be addressed in this opinion. \nSTATUTE OF LIMITATIONS  \n Standards.  Considering the facts previously stated in this opinion, the evidence \nbefore me is clear, and I find the cervical spine injury and the issues with it were not a \npart of Claimant’s original claim.  Under Ark. Code Ann. §11-9-702(b)(1) (Repl. 2012): \nIn  cases  in  which  any  compensation,  including  disability  or  medical,  has \nbeen  paid  on  account  of  injury,  a  claim  for  additional  compensation  shall \nbe  barred  unless  filed  with  the  commission  within  one  (1)  year  from  the \ndate of the last payment of compensation or two (2) years from the date of \nthe injury, whichever is greater. \n \n The burden rests on Claimant to prove that his claim was timely filed.  Stewart v. \nArk.  Glass  Container, 2010  Ark.  198, 366  S.W.3d  358; Kent  v.  Single  Source  Transp., \n103  Ark.  App.  151,  287  S.W.3d  619  (2008).    Under  Ark.  Code  Ann.  § 11-9-705(a)(3) \n\nALLEN – G903144 \n \n9 \n(Repl.  2012),  he  must  prove  this  by  a  preponderance  of  the  evidence. The  standard \n“preponderance   of   the   evidence”   means   the   evidence   having   greater   weight   or \nconvincing force.  Barre v. Hoffman, 2009 Ark.  373, 326 S.W.3d 415; Smith v. Magnet \nCove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n Discussion.  As previously stated, regarding the original claim, the Respondents \ninitially accepted  Claimant’s  injury  as  compensable  and  paid  benefits  to  the  Claimant. \nThe  last  payment  of  benefits  was  on  August  19,  2019.  The  statute  of  limitations  for \nadditional  compensation  began to  run  one  year  from  the  date  of  the  last  benefit \npayment or two years from the date of injury, whichever is greater. Ark. Code Ann. §11-\n9-702(b)(1) (Repl. 2012); See also, Wynne v. Liberty Trailer and Death and Permanent \nTotal Disability Trust Fund, 2022 Ark. 65, 641 S.W.3d 621 (2022)(holding the statute of \nlimitations  on  a  request  for  additional  benefits  commences  when  the  last  payment, \nwhether for disability or medical benefits, was made). This means the final day to bring \nforth Claimant’s cervical spine claim would be May 8, 2021.  \nThe  Court  finds,  based  on  the  evidence,  the  last benefit  payment  for  Claimant \nwas  made  on  August  19,  2019.  Since  Claimant  has  one  year  from  the  last  medical \nbenefit  payment  or  two  years  from  the  date  of  injury,  whichever  is  greater,  to  file  for \nadditional medical benefits, the Court finds the Claimant had until May 8, 2021, the later \ndate, to file his claim for additional benefits with the Commission. The Court further finds \nthe  Claimant  did  not  specifically  request  benefits  for  his  alleged  cervical  spine  injury \nuntil December 19, 2022, well after the statute of limitations have run.  \n\nALLEN – G903144 \n \n10 \nThough it should be noted, the Claimant feels the statement contained in his AR-\nC,  filed  with  the  Commission  on  May  28,  2019,  tolls  the  statute  of  limitations  for  his \ncervical spine injury. The Claimant believes that his cervical spine injury falls under the \nstatement  in  his AR-C that  reads, “and other  whole  body.”  I  find  this  phrase  in \nClaimant’s  AR-C to  be  generic  and  insufficient  to  toll  the  statute  of  limitations  and \npreserve  the  cervical  spine  issue. See  Walmart  Assocs  v.  Armstrong,  2017  Ark.  App. \n175,  516  S.W.3d  310  (2017)(finding  Claimant’s  generic  form AR-C,  that  contained  no \nspecific  injury  and  had  all  benefit  boxes  checked,  was  the  same  as  no  filing  and  was \ninsufficient to toll the statute of limitations).  \n Only  one  Form  AR-C  has  been  filed  in  connection  with  this  matter.    That  is  the \nmeans for filing a “formal claim.”  See Yearwood v. Wal-Mart Stores, Inc., 2003 AR Wrk. \nComp. LEXIS 739, Claim No. F201311 (Full Commission Opinion filed June 17, 2003).  \nSee  also Sinclair  v.  Magnolia  Hospital,  1998  AR Wrk.  Comp.  LEXIS  786,  Claim  No. \nE703502 (Full Commission Opinion filed December 22, 1998)(a claim is “typically” filed \nvia  a  Form  AR-C). I  find the  formal  claim  for  this  matter  was  not  filed  with  the \nCommission  by  May  8,  2021,  rather  Claimant  brought  it  to  the  attention  of  both  the \nCommission  and  Respondents  December  19,  2022,  during  the  prehearing  telephone \nconference, more than a year and a half after the statute of limitations deadline. I further \nfind  that  Claimant  failed  to  bring  forth  his  cervical  spine  claim  by  the  May  8,  2021,  the \nstatute  of  limitations  deadline,  thus  forming my  basis  for finding the  remainder  of \nClaimant’s  claim,  Issues  2  through  6,  and  all  other  reserved  issues,  are barred  by  the \nstatute of limitations. \n\nALLEN – G903144 \n \n11 \n \nCONCLUSION \n \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth  above, \nthis claim is hereby denied and dismissed. \nIT IS SO ORDERED. \n \n \n \n \n       ________________________________ \n       Honorable Steven Porch \n       Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. G903144 PRESTON ALLEN, EMPLOYEE CLAIMANT STAFFMARK INVESTMENTS, LLC, EMPLOYER RESPONDENT NO. 1 ACE AMERICAN INS. CO., CARRIER RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND, CARRIER RESPONDENT NO. 2 OPINION FILED MARCH 28, 2023 Hearing before ...","fetched_at":"2026-05-19T23:09:53.189Z","links":{"html":"/opinions/alj-G903144-2023-03-28","pdf":"https://labor.arkansas.gov/wp-content/uploads//ALLEN_PRESTON_G903144_20230328.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}