{"id":"alj-H004886-2024-01-04","awcc_number":"H004886","decision_date":"2024-01-04","opinion_type":"alj","claimant_name":"Lana Rogers","employer_name":"United Parcel Svc","title":"ROGERS VS. UNITED PARCEL SVC. AWCC# H004886 & H202191 JANUARY 4, 2024","outcome":"dismissed","outcome_keywords":["dismissed:5","denied:3"],"injury_keywords":["neck","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Rogers_Lana_H004886_20240104.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Rogers_Lana_H004886_20240104.pdf","text_length":12631,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NOS. H004886 & H202191 \n \n \nLANA ROGERS, EMPLOYEE CLAIMANT \n \nUNITED PARCEL SVC., \n EMPLOYER RESPONDENT \n \nLM INS. CORP., \n CARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 4, 2024 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  December \n13, 2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant\n1\n, pro se. \n \nRespondents  represented  by  Mr.  David  C.  Jones,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  Respondents’ Motion  to \nDismiss.    A  hearing  on  the  motion  was  conducted  on  December  13,  2023,  in \nLittle Rock, Arkansas.  Claimant, who is pro se, appeared in person and testified.  \nRespondents were represented at the hearing by Mr. David C. Jones, Attorney at \nLaw,  of  Little  Rock,  Arkansas.    In  addition  to  Claimant’s  testimony,  the  record \nconsists   of   the   following   exhibits,   which   were   admitted   without   objection:  \nCommission’s Exhibit 1—correspondence and notice to this claim—consisting of \nthree  numbered  pages;  and  Respondents’  Exhibit  1—forms,  pleadings,  and \ncorrespondence related to this claim—consisting of 83 numbered pages. \n \n \n1\nClaimant   is   a   hearing-impaired   individual.      The   proceedings   were \ninterpreted to her by Mr. John West, who is a certified sign language interpreter. \n\nROGERS – H004886 & H202191 \n \n2 \n The evidence reflects that  per the First Report of Injury or  Illness filed on \nJuly 21,  2020,  Claimant purportedly  injured her head at work on June 12, 2020, \nwhen a  package  fell  and  struck  her.    This  matter  was  assigned  the  number \nH004886  by  the  Operations  and  Compliance   Division  of  the  Commission.  \nAccording  to  the  Form  AR-2  that  was  filed on August  13,  2020,  Respondents \naccepted  the  claim  as  a  medical-only  one.    However,  in  an  amended  form  filed \non  September  17,  2020,  they  informed  they  Commission  that  they  were  now \npaying  indemnity  benefits  as  well.    On  December 28,  2020,  Claimant  through \nthen-counsel  Laura  Beth  York  filed a  Form AR-C,  alleging  that  she  was  entitled \nto  the  full  range  of  initial  and  additional  benefits  for  her  alleged “injuries  to  her \nhead, neck, back, left arm, left hand and other whole body.”  Thereafter, on April \n17,  2021,  York  moved  to  withdraw  from  her  representation  of  Claimant.    In  an \norder  entered  on  April  30,  2021,  the  Full  Commission  granted  the  motion \npursuant to AWCC Advisory 2003-2. \n Respondents  on  May  16,  2022,  filed  a  Motion  to  Dismiss  and  brief  in \nsupport  thereof  regarding  AWCC  No.  H004886.    In  response  to  the  motion, \nClaimant wrote the Commission, requesting a change of physician.  Because of \nthis,  Administrative  Law  Judge  Chandra  Black,  to  whom  the  file  had  been \nassigned, notified the parties by letter on June 10, 2022, that she was holding the \nmatter “in abeyance until such time a hearing is requested.” \n On  March  16,  2022,  Respondents  filed  a  First  Report  of  Injury  or  Illness \nthat reflected that Claimant purportedly hurt her head at work on March 8, 2022, \n\nROGERS – H004886 & H202191 \n \n3 \nwhen  a  falling  package  struck  her.    The  Operations  and  Compliance  Division \nassigned  this  matter  the  number  H202191.    In  a  Form  AR-2  filed  by  them  on \nMarch 22, 2022, Respondents represented that they were accepting the claim as \na medical-only one. \n Discovery  proceeded  on  both  matters.    Claimant  was  sent  a  records \nrelease  pursuant  to  the  Health  Insurance  Portability  and  Accountability  Act \n(“HIPAA”);  but  instead  of  merely  signing  it,  Claimant  added  language  indicating \nthat she was reserving certain rights under the Uniform Commercial Code.  She \ndid this repeatedly.  Because of this, Respondents were unable to use it.   In the \nmeantime,  Claimant  was  granted  her  one-time  change  of  physician  on  both \nAWCC Nos. H004886 and H202191 to Dr. David Sokolow on February 28, 2023.  \nAn  amended  order  was  issued  on  March  7,  2023;  and  a  third  was  issued  on \nMarch  17,  2023.    A  review  of  the  correspondence  in  evidence  shows  that  the \nparties  were  involved  in  an  ongoing  dispute  not  only  over  Claimant’s  need  to \nprovide an unrestricted  HIPAA  release, but her  insistence that  she  be  furnished \nan in-person sign language interpreter for her medical appointments. \n On October 17, 2023, Respondents filed the instant Motion to Dismiss and \na  Brief  in  Support  thereof.    Therein,  they  argued  that  dismissal  of  both  AWCC \nNos. H004886 and H202191  was warranted under both Ark. Code Ann. § 11-9-\n702  (Repl.  2012)  as  well  as  AWCC  R.  099.13  because “[n]o  hearing  has  been \nrequested in regard to either claim, and no further action has been taken by the \nClaimant in over six (6) months with respect to these claims.”  Judge Black wrote \n\nROGERS – H004886 & H202191 \n \n4 \nClaimant  on  October  20,  2023,  requesting  a  response  to  the  motion  within  20 \ndays.    Claimant  did  so  in  a  letter  received  by  the  Commission  on  November  2, \n2023, that reads: \nTo Whom It May Be [sic] Concern: \n \nThis  is  Lana  Rogers,  AWCC  File  No.  H004886  and  H202191,  I \nwould like to send you a letter as you requested, \n \nI  do  Object  to  the  Motion  for  dismissal,  I  do  have  an  issue  that  I \nwould like to Pursue.  I did not request a Motion to Dismiss.  That’s \n[Respondents’  counsel’s]  decision  after  several  times  requesting \nme to sign a Hippa [sic] for and I’ve signed it and submitted it to him \nas he requested, but my signature wasn’t good enough for him. \n \n On  November  14, 2023,  Judge  Black  scheduled  a  hearing  on  the motion \nfor December 13, 2023.  At the hearing, Claimant testified  that she received the \nNotice of Hearing and that that was why she appeared at the hearing. \n During the hearing, Respondents argued for dismissal under both § 11-9-\n704(d) (Repl. 2012) and Rule 13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After   reviewing   the   record   as   a   whole,   including   medical   reports, \ndocuments,  and other matters  properly before  the  Commission,  and  having  had \nan  opportunity  to  hear  the  testimony  of  Claimant,  I  hereby  make  the following \nfindings of fact and conclusions of law in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover AWCC Nos. H004886 and H202191. \n\nROGERS – H004886 & H202191 \n \n5 \n2. All parties received notice of the Motion to Dismiss and the hearing \nthereon pursuant to AWCC R. 099.13. \n3. Respondents have not proven by a preponderance of the evidence \nthat  Claimant  has  failed  to  prosecute  AWCC  No.  H004886  under \nAWCC R. 099.13. \n4. Respondents have not proven by a preponderance of the evidence \nthat  AWCC  No.  H004886  should  be  dismissed  under  Ark.  Code \nAnn. § 11-9-702(d) (Repl. 2012). \n5. Respondents’ Motion  to  Dismiss  should  be,  and  hereby  is,  denied \nregarding AWCC No. H004886. \n6.  No  Form  AR-C  has  ever  been  filed  in  connection  with  AWCC  No. \nH202191. \n7. No other document before the Commission in AWCC No. H202191 \nconstitutes a claim for additional benefits. \n8. Respondents’ Motion  to  Dismiss  is  denied  regarding  AWCC  No. \nH202191 because no claim exists to be subject to dismissal. \n9. Claimant  has  requested  a  hearing  on  AWCC  Nos.  H004886  and \nH202191. \n10. AWCC Nos. H004886 and H202191will proceed to a hearing on the \nmerits. \n\nROGERS – H004886 & H202191 \n \n6 \nIII.  DISCUSSION \n AWCC 099.13 provides: \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).  In turn, Ark. Code Ann. § 11-9-702(d) (Repl. 2012) reads: \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim may,  upon  motion  and  after \nhearing, if necessary, be dismissed without prejudice to the refiling \nof  the  claim  within  limitation  periods  specified  in  subsection  (b)  of \nthis section. \n \n(Emphasis  added)    Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012), \nRespondents  must  prove  by  a  preponderance  of  the  evidence  that  dismissal \nshould  be  granted.    The  standard  “preponderance  of  the  evidence”  means  the \nevidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. \n373,  326  S.W.3d  415;  Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson \nWorld Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination of a \nwitness’ credibility and how much weight to accord to that person’s testimony are \nsolely up to the Commission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, \n37 S.W.3d 649 (2001).  The Commission must sort through conflicting evidence \n\nROGERS – H004886 & H202191 \n \n7 \nand determine the true facts.  Id.  In so doing, the Commission is not required to \nbelieve  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept and \ntranslate  into  findings  of  fact  only  those  portions  of  the  testimony  that  it  deems \nworthy of belief.  Id. \n At  the  hearing,  Claimant  agreed  to  sign  the  HIPAA  authorization  form \nwithout any reservation language—and she did so.  She testified that she objects \nto the dismissal of AWCC Nos. H004886 and H202191 and wants a hearing on \nher entitlement to additional benefits under both matters. \n Concerning  AWCC  No.  H004886,  after  consideration  of  the  evidence,  I \nfind that while both Claimant and  Respondents were given reasonable notice of \nthe Motion to Dismiss hearing under Rule 13, she has not yet abridged that rule.  \nBy  the  same  token,  I  find  that  while  §  11-9-702(d)  provides  that  a  claim  “may” \n(clearly  intending  that  the  administrative  law  judge  has  discretion  in  the  matter) \nbe dismissed for failure to request a hearing within six months of the filing of the \nclaim, dismissal is not yet warranted here.  The Motion to Dismiss is thus denied \nregarding AWCC No. H004886. \n No Form AR-C has been filed in AWCC No. H202191.  That is the means \nfor 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, \n2003).  See also Sinclair v. Magnolia Hospital, 1998 AR Wrk. Comp. LEXIS 786, \nClaim No. E703502 (Full Commission Opinion filed December 22, 1998)(a claim \n\nROGERS – H004886 & H202191 \n \n8 \nis “typically” filed via a Form AR-C).  While a Form AR-1 was filed, that does not \nsuffice to instigate a claim.  Id. \n Per Ark. Code Ann. § 11-9-702(c) (Repl. 2012): \nA  claim  for  additional  compensation  must specifically  state  that  it \nis  a  claim  for  additional  compensation.    Documents  which  do  not \nspecifically  request  additional  benefits  shall  not  be  considered  a \nclaim for additional compensation. \n \n(Emphasis added)  See White Cty. Judge v. Menser, 2020 Ark. 140, 597 S.W.3d \n640. \n My review of the evidence discloses no document sufficient to constitute a \nfiling of a claim for additional benefits under the standard cited above.  Because \nno claim has been filed, it follows  that there is no claim subject to dismissal per \nRespondents’  motion.    The Motion  to  Dismiss  thus  must  be,  and  hereby  is, \ndenied regarding AWCC No. H202191 for this reason. \n But  based  on  Claimant’s  hearing  request  regarding  both  AWCC  Nos. \nH004886 and H202191, prehearing questionnaires will be immediately issued  to \nthe parties, and these matters will proceed to a full hearing on the merits. \nCONCLUSION \n Based  on  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above, \nRespondents’ Motion to Dismiss is hereby respectfully denied. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NOS. H004886 & H202191 LANA ROGERS, EMPLOYEE CLAIMANT UNITED PARCEL SVC., EMPLOYER RESPONDENT LM INS. CORP., CARRIER RESPONDENT OPINION FILED JANUARY 4, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on December 13, 2023, in Little Rock, Pul...","fetched_at":"2026-05-19T22:58:06.788Z","links":{"html":"/opinions/alj-H004886-2024-01-04","pdf":"https://labor.arkansas.gov/wp-content/uploads/Rogers_Lana_H004886_20240104.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}