{"id":"alj-G907965-2024-11-12","awcc_number":"G907965","decision_date":"2024-11-12","opinion_type":"alj","claimant_name":"John Munn","employer_name":"Ark. Dept. Of Corr","title":"MUNN VS. ARK. DEPT. OF CORR. AWCC# G907965 November 12, 2024","outcome":"dismissed","outcome_keywords":["dismissed:5","granted:1"],"injury_keywords":["lumbar","shoulder","back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Munn_John_G907965_20241112.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Munn_John_G907965_20241112.pdf","text_length":9193,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. G907965 \n \n \nJOHN MUNN, EMPLOYEE CLAIMANT \n \nARK. DEPT. OF CORR., \n EMPLOYER  RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIV., \n CARRIER/TPA RESPONDENT \n \n \nOPINION FILED NOVEMBER 12, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on  November  8, \n2024, in Forrest City, St. Francis County, Arkansas. \n \nClaimant (not appearing) represented by Mr. Kenneth A. Olsen, Attorney at Law, \nBryant, Arkansas (excused from participation). \n \nRespondents  represented  by Mr. Charles  H.  McLemore,  Attorney  at  Law,  Little \nRock, Arkansas. \n \n On November  8,  2024,  the  above-captioned  claim  was  heard  in Forrest \nCity,  Arkansas.    A  prehearing  conference  took  place  on September  16,  2024.  \nThe Prehearing Order   entered on   September   17,   2024, pursuant   to   the \nconference was admitted without objection as Commission Exhibit 1. \nStipulations \n The stipulations set forth in Commission Exhibit 1 are the following, which \nI accept: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n\nMUNN – G907965 \n2 \n \n2. The   employee/employer/carrier   relationship   existed   among   the \nparties on July 30, 2019, when Claimant sustained a compensable \ninjury to his eyes by specific incident. \n3. Respondents  accepted  the  above  injury  as  a  medical-only  one; \nhowever, they have denied that he suffered any other compensable \ninjuries as a result of the above-described incident. \n4. Claimant’s  average  weekly  wage  of  $1,015.58  entitles  him  to \ncompensation rates of $677.00/$508.00. \nIssues \n The following issues were to have been litigated: \n1. Whether  this  claim  should  be  dismissed  for  want  of  prosecution \nunder AWCC R. 099.13. \n2. Whether  Claimant  sustained  compensable  injuries  to his  lumbar \nspine and left shoulder by specific incident. \n3. Whether Claimant is entitled to reasonable and necessary medical \ntreatment of his alleged compensable injuries. \n4. Whether Claimant is entitled to temporary total disability benefits. \n5. Whether Claimant is entitled to a controverted attorney’s fee. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n\nMUNN – G907965 \n3 \n \n Claimant: \n1. Claimant contends  that  he sustained  a  shoulder  and  lumbar  spine \ninjury arising from and in the course of his employment on or about \nJuly 30, 2019, and is entitled to medical and indemnity benefits and \nattorney’s fees. \nRespondents: \n1. Respondents   contend   that   Claimant   has   a   history   of   back \nproblems.  He reported an injury on July 30, 2019, involving pepper \nspray  in  his  eye  after  an  incident  with  an  inmate.    Respondents \naccepted  this  as  a  medical-only  claim.    However,  Claimant  sought \nno  treatment,  returned  to  work,  and  made  no  further  complaint \nabout his shoulder or back until November 13, 2019. \n2. A hearing was scheduled to take place on August 12, 2020.  After \nthat  hearing  was  cancelled  at  Claimant’s  request,  the  file  was \nreturned to the Commission’s general files on September 9, 2020, \nand  there  was  no  activity  on  the  claim  until  Respondent  filed  a \nMotion to Dismiss for Want of Prosecution on December 14, 2021.  \nIn  response  to  this  motion,  Claimant  objected  and  demanded  a \nhearing.  This hearing, set for June 10, 2022, was cancelled at his \nrequest; and the file was once again returned to the Commission’s \ngeneral files.  Respondents filed another dismissal motion on June \n3, 2024, to which Claimant has also objected. \n\nMUNN – G907965 \n4 \n \n3. Respondents  contend  that  Claimant  cannot  sustain  his  burden  of \nproving  his  entitlement  to  medical  treatment  that  is  reasonably \nnecessary  for  or  causally  related  to  a  compensable  injury  to  his \nback  or  shoulder  and  arising  out  of  and  in  the  course  of  his \nemployment on July 30, 2019. \n4. In  the  event  that  Claimant  is  awarded  temporary  total  disability \nbenefits, he cannot be entitled to them in excess of unemployment \nbenefits that he received for that same week, per Ark. Code Ann. § \n11-9-506 (Repl. 2012). \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  I  hereby  make  the  following \nFindings  of Fact  and Conclusions  of Law  in  accordance  with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  stipulations  set  forth  above  are  reasonable  and  are  hereby \naccepted. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim under AWCC R. 099.13. \n4. This claim is hereby dismissed without prejudice. \n5. Because of the above findings/conclusions, the remaining issues—\nwhether Claimant   sustained   compensable   injuries   to   his   left \n\nMUNN – G907965 \n5 \n \nshoulder  and  lumbar  spine, whether he is  entitled  to  reasonable \nand  necessary  treatment  of these alleged  injuries,  whether  he  is \nentitled  to  temporary  total  disability  benefits,  and  whether  he  is \nentitled to a controverted attorney’s fee—are  moot  and  will  not  be \naddressed. \nCASE IN CHIEF \nSummary of Evidence \n In  addition  to  the  Prehearing  Order  discussed  above,  admitted  into \nevidence  in  this  case  were  the  following:    Commission Exhibit 2, email  and \nregular  correspondence  dated  November  6,  2024,  consisting  of  two  pages;  and \nRespondents’ Exhibit 2, pleadings and correspondence, consisting  of one  index \npage and 17 numbered pages thereafter. \nAdjudication \nA. Motion to Dismiss \n On  November  6,  2024,  Claimant’s  counsel  sent  me  and  Respondents’ \ncounsel a letter that reads in pertinent part: \nAs  discussed  earlier  today,  I  received a  phone  call  from  Mr.  Munn \nduring  which  he  advised  that  he  did  not  intend  to  appear  at  the \nhearing scheduled in this claim for 12:30 p.m. on Friday, November \n8,  2024,  and  expressed  that  I  should  go  ahead  with  the  dismissal \n[motion]  as  filed  by  [Respondents’  counsel].    As  such,  I  do  not \nexpect  him  to  be  present  on  Friday,  and  seek  to  be  excused  as \nwell. \n\nMUNN – G907965 \n6 \n \n As  expected,  Claimant  failed  to  appear  at  the  hearing  at  the  appointed \ntime.   Based  on  this,  Respondents  renewed  their  request  that  the  claim  be \ndismissed under AWCC R. 099.13, which reads: \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 As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaims—by a preponderance of the evidence.  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As demonstrated by the foregoing, Claimant without good cause failed to \nappear  at the  hearing.   The  evidence  thus establishes  that he has  failed  to \nprosecute his claim, and that reasonable notice of the proceeding was provided \nto  him.    Hence,  dismissal  of  the  instant  claim  is readily justified  under  Rule  13.  \nRespondents have met their burden of proof on this matter. \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. \n\nMUNN – G907965 \n7 \n \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  Appellate  Courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal with prejudice.  Based on the \nforegoing, I concur and find that the dismissal of this claim should be and hereby \nis entered without prejudice. \nB. Remaining Issues \n Because of the above foregoing, the remaining issues—whether Claimant \nsustained compensable injuries to his left shoulder and lumbar spine, whether he \nis  entitled  to  reasonable  and  necessary  treatment  of  these  alleged  injuries, \nwhether  he  is  entitled  to  temporary  total  disability  benefits,  and  whether  he  is \nentitled to a controverted attorney’s fee—are moot and will not be addressed. \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      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. G907965 JOHN MUNN, EMPLOYEE CLAIMANT ARK. DEPT. OF CORR., EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIV., CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 12, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on November 8, 2024, in Forrest C...","fetched_at":"2026-05-19T22:46:17.459Z","links":{"html":"/opinions/alj-G907965-2024-11-12","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Munn_John_G907965_20241112.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}