{"id":"alj-H000250-2025-09-17","awcc_number":"H000250","decision_date":"2025-09-17","opinion_type":"alj","claimant_name":"Darryl Payne","employer_name":"Phillips Community College","title":"PAYNE VS. PHILLIPS COMMUNITY COLLEGE AWCC# H000250 September 17, 2025","outcome":"granted","outcome_keywords":["dismissed:1","granted:4","denied:1"],"injury_keywords":["back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/PAYNE_DARRYL_H000250_20250917.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PAYNE_DARRYL_H000250_20250917.pdf","text_length":19374,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H000250 \n \nDARRYL G. PAYNE, EMPLOYEE       CLAIMANT \n \nPHILLIPS COMMUNITY COLLEGE,  \nSELF-INSURED EMPLOYER                   RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nTHIRD PARTY ADMINISTRATOR                      RESPONDENT \n \n \nOPINION FILED 17 SEPTEMBER 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 19 June 2025 in Helena/West Helena, Arkansas. \n \nThe claimant appeared pro se. \n \nMr. Robert Montgomery appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThis case is related to a stipulated compensable left leg injury that the claimant \nsustained by specific incident on 7 January 2020. Hearings were previously held on 30 \nMarch 2022 and 17 August 2023. Corresponding Opinions were issued on 22 June 2022 and \n14 November 2023. The claimant appealed the 14 November 2024 Opinion. On 28 May \n2024, the Full Commission filed its Opinion on the appeal, affirming in part and reversing \nin part the ALJ’s Opinion. In that Opinion, and relevant to the immediate matter before the \nCommission, the Full Commission found that the claimant was entitled to additional \nreasonable and necessary medical treatment for his compensable left leg injury. \nThe present matter was heard on 19 June 2025 in Helena/West Helena, Arkansas. \nThe parties participated in a prehearing telephone conference on 12 November 2024. A \nsubsequent Prehearing Order was admitted to the record without objection as \nCommission’s Exhibit No 1. Consistent with that Order, the parties agreed to the following: \n\nD. Payne- H000250 \n2 \n \nSTIPULATIONS \n1. The Arkansas Workers’ Compensation Commission (the Commission) has  \n  jurisdiction over this claim. \n \n2. The employer/employee/carrier relationship existed on 7 January 2020. \n \n3. This claim was previously litigated, with the relevant findings of the 14  \n  November 2024 ALJ Opinion and 28 May 2024 Full Commission Opinion  \n  controlling. \n \n4. The claimant previously sought additional treatment from Dr. [Stacy] Busby,  \n  which the Full Commission awarded. Dr. Busby has since, however, declined  \n  to continue a physician-patient relationship with the claimant. \n \n5. After providing the claimant with an MRI scan, the respondents arranged for \n  the claimant to be seen by Dr. [Jason] Stewart, an orthopedic surgeon. The  \n  claimant has refused to participate in care with Dr. Stewart. \n \nISSUES \n 1. Whether the claimant is entitled to additional medical benefits.  \n \n 2. Whether the claim should be dismissed for the claimant’s failure to prosecute  \n  his claim under AWCC Rule 13 (now codified at 11 C.A.R. § 25-110(d)). \n \nCONTENTIONS \n The parties’ contentions, as listed in their prehearing information filings, were \nincorporated by reference into the Prehearing Order. \n The claimant contends that his “need for surgery [has] already been litigated” and \n“Because after falling down a flight of stairs carrying computers, my leg is still not right. I \nfeel I was not compensated after those surgery and other ailments developed.” (sic) \n The respondents contend: \nClaimant has requested a hearing in his claim to address additional medical \ntreatment. On May 28, 2024, the Full Commission issued an Opinion which \ncontained, among other findings, a finding that the claimant proved his \nentitlement “to additional medical treatment to be provided by Dr. Busby”. \n(Full Comm. Opinion dated May 28, 2024, p.22). The respondents did not \nappeal the Full Commission decision and set about arranging an \nappointment for the claimant to be seen by Dr. Busby for “additional medical \ntreatment.” \n \n\nD. Payne- H000250 \n3 \n \nThe Respondents were advised by Dr. Busby’s office that due to prior \ninteractions with the claimant Dr. Busby would not see the Claimant again \nas a patient. The respondents were also informed by Dr. Busby’s office that \nthey would not schedule an appointment for the claimant to be seen there. \n(See attached letter dated June 27, 2024). Upon learning of Dr. Busby’s \nrefusal to see the claimant as a patient the Respondents arranged for \nclaimant undergo an MRI which was done on July 23, 2024. \n \nAfter the MRI was completed, the respondents then set about arranging an \nappointment with an orthopedic surgeon for evaluation of the MRI results, \netc. An IME appointment was arranged for the Claimant to be seen by Dr. \nStewart on August 26, 2024. The claimant was advised of the IME \nappointment, but he refused to attend the appointment with Dr. Stewart. The \nclaimant refused to attend the IME appointment and \nindicated he wanted a “regular doctor appointment.” The Respondents paid \nfor the IME appointment and were not given a full refund by Dr. Stewart’s \noffice. The Claimant then requested a hearing in this claim. \n \nThe Respondents contend that they have and are trying to provide the \nreasonably necessary medical treatment authorized by the Full Commission \nin their May 28, 2024 Opinion. The Claimant has been less than cooperative \nand has thwarted attempts to arrange medical appointments. The \nRespondents reserve the right to amend these contentions pending the \ncompletion of discovery. \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witness, \nobserving his demeanor, I make the following findings of fact and conclusions of law under \nACA § 11-9-704: \n1. The Commission has jurisdiction over this claim. \n \n2. The Law of the Case Doctrine applies to earlier Opinions issued on this claim. \n \n3. 11 C.A.R. § 25-110(d), formerly Commission Rule 099.13, provides for a dismissal of \n a claim for want of prosecution upon meritorious application to the Commission from \n either party and reasonable notice. \n \n4.  Reasonable notice of the hearing was provided to both parties. \n \n5. The respondents have not proven by a preponderance of the evidence that the \nclaimant has failed to prosecute this claim. \n \n6. Consistent with the Full Commission’s 28 May 2024 Opinion, the claimant remains \nentitled to additional treatment for his stipulated compensable left leg injury. \n \n\nD. Payne- H000250 \n4 \n \nIII.  ADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). A \nclaimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nSUMMARY OF THE EVIDENCE \nThe claimant testified on his own behalf and was the only witness. The record \nconsists of the hearing transcript and the following exhibits: Commission’s Exhibit No 1 (the \n19 November 2024 Prehearing Order); Claimant’s Exhibit No 1 (15 pages of miscellaneous \nscreenshots and pictures of documents); and Respondent’s Exhibit No 1 (one index page and \ntwelve pages of records). \nClaimant’s Testimony \nThe claimant’s testimony began with the following exchange: \nJudge:  ... the gist of things is that the respondents have tried to send you to \na doctor, an orthopedic surgeon, Dr. Stewart, for an IME [Independent \nMedical Evaluation], and you’ve said that you don’t want to be seen by Dr. \nStewart and you want to go to another doctor. Is that fair? \n \nClaimant:  Fair. \n \n\nD. Payne- H000250 \n5 \n \n[TR at 11-12.] The claimant’s refusal to participate in the IME was based on his belief that \nany medical opinions provided as a result of that examination would be unfair to him. \nJudge:  ... you were not going to go see Dr. Stewart for the IME and you \nvoiced the concerns you mentioned a moment ago, saying that if they—if they \norganized and that they were paying for it, that you didn’t think you would \nget fair review by the physician or fair results, and that, well, basically the \nodds were going to be against you to be able to get more help from them, and \nso that was kind of the basis for your not wanting to go... \n \nClaimant:  Yes, sir, absolutely. \n \n[TR at 15-16.] \n In its 28 May 2024 Opinion, the Full Commission found that the claimant was \nentitled to additional reasonable and necessary medical treatment from orthopedic surgeon \nDr. Stacy Busby for his stipulated compensable left leg injury. In the litigation preceding \nthat Opinion, there were competing medical opinions as to whether the claimant would \nbenefit from additional diagnostic or treatment options. Dr. Busby’s evaluation suggested \nthat the claimant could or would benefit from additional treatment. The respondents \nexplained that after the Full Commission’s Opinion granted additional medical treatment \nfrom Dr. Busby, Respondent Public Employee Claims Division (PECD) authorized an MRI \nfor the claimant’s left leg and attempted to coordinate further treatment with Dr. Busby. A \ncopy of a letter from PECD authorizing that treatment was provided by the respondents. \n[Resp. Ex. No 1 at 2.] But, “Dr. Busby said under no circumstances would she see him again, \nso that eliminated Dr. Busby as a possibility....” [TR at 18.] Dr. Busby’s refusal to see the \nclaimant and PECD’s subsequent attempts to coordinate treatment for the claimant were \nnoted in the respondents’ internal claims management system. PECD notified the claimant \nof the same via a letter dated 27 June 2024. [Resp. Ex. No 1 at 11-12.] \n After Dr. Busby terminated her provider-patient relationship with the claimant, \nPECD coordinated an IME with Dr. Jason Stewart, another orthopedic surgeon. They \n\nD. Payne- H000250 \n6 \n \nprovided payment for Dr. Stewart’s evaluation in advance of the claimant’s 26 August 2024 \nappointment. The claimant, though, refused to attend the appointment with Dr. Stewart. \n The bulk of the testimony was around the respondents’ attempt to provide what they \nconsidered to be reasonable and necessary treatment (by way of the IME with Dr. Stweart), \nin conformance with the Full Commission’s Opinion, and the claimant’s refusal to attend \nthe IME that had been scheduled for him with Dr. Stewart.  \nJudge:  ... the Commission said you were entitled to an appointment with Dr. \nBusby. They tried to arrange that, and Dr. Busby refused to see you anymore. \nWhatever reason she stopped, I don’t know. But they went ahead, sent you to \nan MRI, you showed up for that and got your results. They arranged for Dr. \nStewart to try to see you. They paid for that, and then you refused to \ncooperate with that. Is that accurate? \n \nClaimant:  Yeah. \n \n[TR at 29.] \n The claimant argues that he would be willing to see any doctor to continue obtaining \ntreatment for his compensable left leg injury. At the hearing he read a message he had \nwritten regarding his claim, stating, “I’ve been fighting for my disability since the first of \nthe year. I lost my brother three years back, and then I lost my uncle. I’m willing to go to \nanywhere workman’s comp wants me to go at this point where this chronic pain has took \nover my body.” [TR at 13.] \n The respondents’ position, on the other hand, was also made clear at the hearing: \nThe fact of the matter is Dr. Stewart was agreeable to seeing him. He elected \nnot to go and told everybody he wasn’t going to go. It didn’t matter what \ndoctor they picked. He wasn’t going. They paid $3,000 for him not to go to an \nappointment, and he basically for 13 months now has just attempted to direct \nhis own medical care in his workers’ comp claim. I would submit that’s \ncontrary to what the law states, and to allow a Claimant to just pick and \nchoose where he wants to go or he or she might want to go, partially based on \nwhat I believe is faulty reasoning about the whole process, to me makes no \nsense and shouldn’t be upheld. That shouldn’t be honored in my opinion. \n \n[TR at 27-28.] \n\nD. Payne- H000250 \n7 \n \nTHE RESPONDENTS HAVE NOT PROVEN BY A PREPONDERANCE OF THE \nEVIDENCE THAT THIS CLAIM SHOULD BE DISMISSED FOR A FAILURE TO \nPROSECUTE. \n \n The respondents have the burden to prove by a preponderance of the evidence that \nthe claimant has failed to prosecute his claim. Ark. Code Ann. § 11-9-705(a)(3). Under 11 \nC.A.R. § 25-110(d) (formerly cited as Rule 13),  \nUpon meritorious application to the commission from either party in an \naction pending before the commission requesting that the claim be dismissed \nfor want of prosecution, the commission may, upon reasonable notice to all \nparties, enter an order dismissing the claim for want of prosecution. \n \n In Johnson v. Triple T Foods, 55 Ark. App. 83, 929 S.W.2d 730, 1996 Ark. App. \nLEXIS 628, our Court of Appeals stated, \nThe Commission has the authority, under ACA § 11-9-205(a)(1)(A) (Repl. \n1996), to make such rules and regulations as may be found necessary. Under \nthis authority, the Commission has promulgated its Rule 13, which provides \nthat if a party requests that a claim be dismissed for want of prosecution, the \nCommission may dismiss the claim. \n \n The claimant acknowledged that he refused to submit to the IME arranged for him \nwith Dr. Stewart by the respondents. He explained that his refusal was, at least in part, \nbased on a belief that Dr. Stewart would not be fair to him. He claims willingness, however, \nto attend any “regular” doctor appointment they will arrange for him. The respondents \nargue that the claimant’s refusal to attend the pre-paid IME amounts to his failing to \nprosecute his claim. I disagree. \n The Full Commission previously found that the claimant was entitled to additional \ntreatment with Dr. Busby for his compensable left leg injury. Consistent with that finding, \nthe respondents authorized an MRI scan of the claimant’s left leg. The respondents then \nattempted to provide access to treatment with Dr. Busby. She, however, refused to continue \nseeing the claimant as a patient. This created some difficulty for the respondents. \n\nD. Payne- H000250 \n8 \n \nIn keeping with their understanding of their obligations to provide reasonable and \nnecessary treatment to the claimant, the respondents went about finding a substitute \nprovider for the claimant. But their efforts went beyond simply coordinating continuity of \ncare. Instead, the respondents scheduled an IME for the claimant. Workers’ Compensation \nlaws provide for such evaluations, and a claimant’s cooperation with an IME may be \ncompelled by the Commission under the controlling statute, Ark. Code Ann. § 11-9-511: \n(a)  An injured employee claiming to be entitled to compensation shall submit \nto such physical examination and treatment by another qualified physician, \ndesignated or approved by the Workers’ Compensation Commission, as the \nCommission may require from time to time if reasonable and necessary. \n \n(b)  The places of examination and treatment shall be reasonably convenient \nfor the employee. \n  \n(c)  Such physician as the employee, employer, or insurance carrier may \nselect and pay for may participate in the examination if the employee, \nemployer, or insurance carrier so requests. \n  \n(d)  In cases where the commission directs examination and treatment, \nproceedings shall be suspended, and no compensation shall be payable for \nany period during which the employee refuses to submit to examination and \ntreatment or otherwise obstructs the examination or treatment. \n  \n(e)  Failure of the employee to obey the order of the commission in respect to \nexamination or treatment for a period of one (1) year from the date of \nsuspension of compensation shall bar the right of the claimant to further \ncompensation in respect to the injury. \n  \nSee generally Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 \n(1997)(Arey, J., concurring). But missing from the facts before me, as contemplated in the \noperant statutory language on IMEs, is the Commission’s direction or order for the \nclaimant to submit to an IME. Penalties for noncompliance by a claimant with a \nCommission-directed evaluation are available under the statute. \n There is no evidence in the record, however, that the Commission ordered the \nclaimant’s participation in an IME. In attempting to act in conformance with their \nobligation to provide for the claimant’s treatment, the respondents instead went beyond the \n\nD. Payne- H000250 \n9 \n \nscope of that obligation, implicating other statutory criteria not related to the Full \nCommission’s Opinion and direction. And the claimant was not agreeable to submitting to \nany care at the direction of the respondents besides what he considered to be a “regular” \ndoctor’s appointment.  \n The respondents now seek a dismissal for the claimant’s refusal to submit to an IME \nthat was organized in the absence of an order by the Commission compelling his \nparticipation in the same. On the one hand, the claimant has plainly refused to voluntarily \nsubmit to an IME. On the other hand, he has plainly expressed his willingness to \nparticipate in any other treatment that the respondents might arrange for him. On the \nevidence before me, I cannot find that the respondents have proven by a preponderance of \nthe evidence that the claimant has failed to prosecute his case. He has, indeed, not \ncooperated with their arrangements for an evaluation. But his refusal to do so in the \nabsence of a specific order or directive from the Commission does not constitute a failure to \nprosecute his claim. \n THE CLAIMANT IS ENTITLED TO ADDITIONAL MEDICAL TREATMENT \n The parties agree that the Full Commission found in its 28 May 2024 Opinion that \nthe claimant was entitled to additional medical treatment for his compensable left leg \ninjury. That finding was specific to a particular course of treatment being considered by Dr. \nBusby. While I recognize the difficulty created for the respondents with Dr. Busby \nterminating the physician-patient relationship, they did not present evidence that they \nhave, by virtue of that difficulty, been relieved of their obligation to provide for additional \ntreatment. Nor did they present medical evidence in furtherance of an argument that his \nclinical presentation has changed since the Full Commission’s Opinion found his \nentitlement to additional treatment. The claimant therefore remains entitled to additional \ntreatment as considered in the Full Commission’s Opinion. \n\nD. Payne- H000250 \n10 \n \nIV.  CONCLUSION \n For the reasons explained above, the respondents have failed to prove by a \npreponderance of the evidence that this claim should be dismissed for a failure by the \nclaimant to prosecute his claim. Additionally, the claimant remains entitled to additional \ntreatment for his compensable left leg injury.  \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H000250 DARRYL G. PAYNE, EMPLOYEE CLAIMANT PHILLIPS COMMUNITY COLLEGE, SELF-INSURED EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED 17 SEPTEMBER 2025 Heard before Arkansas Workers’ Compensation Comm...","fetched_at":"2026-05-19T22:36:26.531Z","links":{"html":"/opinions/alj-H000250-2025-09-17","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/PAYNE_DARRYL_H000250_20250917.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}