{"id":"alj-H004961-2025-08-20","awcc_number":"H004961","decision_date":"2025-08-20","opinion_type":"alj","claimant_name":"Johnny Coburn","employer_name":"Arkansas Steel Assoc., LLC","title":"COBURN VS. ARKANSAS STEEL ASSOC., LLC AWCC# H004961 & H102650August 20, 2025","outcome":"dismissed","outcome_keywords":["dismissed:4","granted:1"],"injury_keywords":["neck","strain","shoulder","back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Coburn_Johnny_H102650_20250820.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Coburn_Johnny_H102650_20250820.pdf","text_length":18274,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NOS. H004961 & H102650 \n \n \nJOHNNY COBURN, EMPLOYEE CLAIMANT \n \nARKANSAS STEEL ASSOC., LLC \n EMPLOYER RESPONDENT \n \nPHOENIX INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED AUGUST 20, 2025 \n \nHearing  before Chief Administrative  Law  Judge  O.  Milton  Fine  II  on July 24, \n2024, in Little Rock, Pulaski County, Arkansas. \n \nClaimant represented   by   Ms. April   K.   Rogers,   Attorney   at   Law, Conway, \nArkansas. \n \nRespondents represented by Ms. Amy C. Markham, Attorney at Law, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n On  July  24,  2025,  the  above-captioned  claims  were  heard  in  Little  Rock, \nArkansas.    A  prehearing  conference  took  place  on  March  31,  2025.    The \nPrehearing  Order  entered  that  same  day  pursuant  to  the  conference  was \nadmitted without objection as Commission Exhibit 1.  At the hearing, the parties \nconfirmed that the stipulations, issues, and respective contentions, as amended, \nwere properly set forth in the order. \nStipulations \n The  parties  discussed  the  stipulations  set  forth  in  Commission  Exhibit  1.  \nFollowing  an  amendment  of  Stipulation  No. 3 at  the  hearing,  they  are  the \nfollowing, which I accept: \n\nCOBURN – H004961 & H102650 \n \n2 \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover these claims. \n2. The   employee/employer/carrier   relationship   existed   among   the \nparties on June 29, 2020, and on October 7, 2020. \n3. Respondents  accepted as  compensable a  neck  strain  and  a  right \nshoulder  injury  as  a  result  of  the  alleged  June  29,  2020,  incident \n(Claim No. H004961), and have paid benefits pursuant thereto. \n4. Respondents have controverted Claim No. H102650 in its entirety. \nIssues \n Per the Prehearing Order, the following issues were to have been litigated \nat the hearing: \n1. Whether  Claim  No.  H102650  should  be  dismissed  for  want  of \nprosecution  pursuant  to  AWCC  R.  099.13 (now  codified  at  11 \nC.A.R. § 25-110(d)). \n2. Whether  Claimant sustained  compensable  injuries  to  his  neck, \nback, and right shoulder as a result of specific incident on or about \nJune 29, 2020 (Claim No. H004961). \n3. Whether  Claimant  sustained  compensable  injuries  to  his  neck, \nback,  and  right  shoulder  as  a  result  of  a  specific  incident  on  or \nabout   October   7,   2020,   that   were   either   (a)   a   compensable \naggravation  or  (b)  a  recurrence  of  his  alleged  June  29,  2020, \ninjuries (Claim No. H102650). \n\nCOBURN – H004961 & H102650 \n \n3 \n4. Whether Claimant is entitled to reasonable and necessary medical \ntreatment (H004961 & H102650). \nAll  other  issues  have  been  reserved.    However,  following  a  conference  of  the \nparties  that  took  place  prior  to  the  commencement  of  the  hearing  but  was \nmemorialized in the record, Issues Nos. 2-4 were reserved.  This left as the sole \nissue whether H102660 should be dismissed for want of prosecution. \nContentions \n In  light  of  the  substantial  narrowing  of  the  issues  at  the  hearing,  the \ncontentions  of  the  parties  as  set  forth  in  the  Prehearing  Order  (incorporated \ntherein by reference from their prehearing responses) are largely moot.  They are \nnonetheless listed here: \nClaimant \n1. Claimant  contends  that  he  worked  for  Respondent  employer  and \nsuffered  a  specific-incident  injury  on  June  29,  2020,  in  the  course \nand  scope  of  his  employment;  and  he  suffered  compensable \ninjuries to his neck, pain across both shoulders, mainly affecting his \nright shoulder, when a heavy metal grate fell on him. \n2. Claimant further contends that Respondents are responsible for the \nemergency   room   visit   on   October   7,   2020,   as   either   a   new \ncompensable  injury  or  a  flare-up  of  his  injury  from  June  29,  2020, \nincluding his mid-back (thorax) problems. \n\nCOBURN – H004961 & H102650 \n \n4 \nRespondents \n1. Claimant sustained an injury to his neck and right shoulder on June \n29,  2020,  when  a  metal  grate  struck  him.    All  appropriate  benefits \nhave been paid. \nFINDINGS 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 and to observe his demeanor, I \nhereby make the following findings of fact and conclusions of law in accordance \nwith Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. All parties received notice of the Motion to Dismiss and the July 24, \n2024, hearing thereon pursuant to 11 C.A.R. § 25-110(d). \n3. Respondents have proven by a preponderance of the evidence that \nClaimant  has  failed  to  prosecute  Claim  No.  H102650  under  11 \nC.A.R. § 25-110(d). \n4. Respondents’ Motion to Dismiss should be, and hereby is, granted. \n5. Claim No. H102650 is hereby dismissed with prejudice. \n6. All issues pertaining to Claim No. H004961 have been reserved. \n\nCOBURN – H004961 & H102650 \n \n5 \nCASE IN CHIEF \nSummary of Evidence \n The sole witnesses at the hearing was Claimant. \n In addition to the Prehearing Order discussed above, the exhibits admitted \ninto evidence in this case were Claimant’s Exhibit 1, a compilation of his medical \nrecords,  consisting  of four index  pages and 118 numbered  pages  thereafter; \nClaimant’s  Exhibit  2,  non-medical  records,  consisting  of  one  index  page  and \nseven  numbered  pages  thereafter; Respondents’ Exhibit 1, another compilation \nof  Claimant’s  medical  records,  consisting  of two index   pages and three \nnumbered pages thereafter; and Respondents’ Exhibit 2, non-medical  records, \nconsisting of two index pages and two numbered pages thereafter. \n Also,  in  order  to  address  adequately  this  matter  under  Ark.  Code  Ann. § \n11-9-705(a)(1)  (Repl.  2012)(Commission  must  “conduct  the  hearing  .  .  .  in  a \nmanner which best ascertains the rights of the parties”), and without objection, I \nhave  blue-backed  to  the  record  forms,  pleadings,  and  correspondence  from  the \nCommission’s file on the claim, totaling 72 pages.    In  accordance  with Sapp  v. \nTyson  Foods,  Inc.,  2010  Ark.  App.  517,  2010  Ark.  App.  LEXIS 549,  these \ndocuments have been served on the parties in conjunction with this opinion. \nEvidence \n With  respect  to  Claim  No.  H102650,  the  evidence  reflects  that on March \n16, 2021, Claimant through then-counsel Steven R. McNeely filed a Form AR-C, \nalleging that he was entitled to benefits for an injury to his back that he allegedly \n\nCOBURN – H004961 & H102650 \n \n6 \nsustained  at  work  on October  7,  2020,  when he  strained  his  mid-back  while \nprying  on  a  metal  plate.    He  added  that this constituted an “aggravation of his \n6/29/2020 larger injury” [i.e., Claim No. H004961].”  Respondents  submitted  a \nForm AR-2 in response on March 18, 2021, informing the Commission that they \nwere controverting the claim.  Respondents’ counsel entered her appearance on \nMarch 30, 2021. \n McNeely  requested  a  hearing  on  both  H004961  and  H102650  on  March \n20, 2023.  Accompanying the request was a prehearing questionnaire response.  \nRespondents   submitted   their   response   on   May   2,   2023.      A   prehearing \nconference on both claims was scheduled for August 14, 2023.  Pursuant to that \nconference,  a  hearing  was  scheduled  for  October  26,  2023,  on  the  following \nissues: \n1. Whether  Claimant sustained  compensable  injuries  to  his  neck, \nback, and right shoulder as a result of specific incident on or about \nJune 29, 2020 (H004961). \n2. Whether  Claimant  sustained  compensable  injuries  to  his  neck, \nback,  and  right  shoulder  as  a  result  of  a  specific  incident  on  or \nabout   October   7,   2020,   that   were   either   (a)   a   compensable \naggravation  or  (b)  a  recurrence  of  his  alleged  June  29,  2020, \ninjuries (H102650). \n3. Whether Claimant is entitled to reasonable and necessary medical \ntreatment (H004961 & H102650). \n\nCOBURN – H004961 & H102650 \n \n7 \nAll other issues were reserved. \n On  September  21,  2023,  McNeely  wrote  an  email  to  me  that  requested \nthat the hearing be canceled.  He stated:  “Your Honor we have most of the \nissues resolved.”  Based on this request, and with no objection by Respondents, \nthe  hearing  was  cancelled; and both  claims were returned to the Commission’s \ngeneral files. \n Nothing further took place on Claim No. H102650 until February 2, 2024.  \nOn that date, Respondents filed a Motion to Dismiss under AWCC R. 099.13 and \nArk.  Code  Ann. §  11-9-702(a)(4)  (Repl. 2012).   In  support  of  their  motion, \nRespondents alleged that no hearing had yet taken place on the claim, and that \nno bona fide hearing request had been made in the previous six months.  The file \nwas reassigned to me on February 2, 2024; and that same date, my office wrote \nClaimant  and  McNeely,  requesting  a  response  to  the  motion  within  20  days.  \nMcNeely responded via email on February 9, 2024, stating:  “Your Honor the \nclaimant objects to their motion to dismiss and request[s] a hearing.  The issues \nare  fully  laid  out  in  the  attached  PHQ  [prehearing  questionnaire response].  \nBased  on  this,  I  informed  the  parties  that  I  would  take  the Motion  to  Dismiss \nunder  advisement  and  proceed  to  a  hearing  on  the  merits.    Respondents  filed \ntheir  prehearing  response  on  March  27,  2024.    A  prehearing  conference  was \nscheduled for May 6, 2024.  But on May 2, 2024, McNeely wrote me: \n\nCOBURN – H004961 & H102650 \n \n8 \nYour Honor: \n \nThe    claimant    respectfully    withdraws    his    objection    to    the \nRespondents[‘]  Motion  to  [D]ismiss  and  withdraws  his  hearing \nrequest,   concerning   H102650   DOI   10/7/2020,   based   on   the \nattached email. \n \nI do not believe there is a need for the phone conference Monday.  \nMy understanding is when the parties are in agreement we can fill \nout interrogatories and submit those to have [this] claim dismissed. \n \nIn  response  to  McNeely’s  follow-up  email  conveying  the  same  information,  I \nresponded to the parties on May 2, 2024: \nBased on this, my office will send out interrogatories for Claimant to \nanswer  to  confirm  that  he  has  no  objection  to  [the]  dismissal  of \nH102650. \n \nIf these are not returned in 30 days, my office will simply schedule a \nhearing on the motion to dismiss in Little Rock. \n \nAs for H004961, there is no motion to dismiss pending.  Based on \nClaimant’s withdrawal of his hearing request, I am returning the file \nto the Commission’s general files. \n \n My  office  sent  the  aforementioned  interrogatories  to  McNeely  on  May  2, \n2024.    Because  they  were  not  received  within  the  30-day  deadline,  my  office \nemailed the parties to schedule a hearing on the Motion to Dismiss.  But on June \n12, 2024, McNeely moved to withdraw from his representation of Claimant.  His \nmotion contains the following passage: \nThis claim has changed his mind on hav[ing] the 10/7/20 H102650 \ndismissed; in fact this claimant has changed his mind or position so \nmuch it is repugnant to the undersigned attorney. \n \nIn an Order entered on June 28, 2024, I granted McNeely’s motion under AWCC \nAdvisory 2003-2. \n\nCOBURN – H004961 & H102650 \n \n9 \n On  July  2,  2024,  I  scheduled  a  prehearing  telephone  conference  for \nAugust 12, 2024, on both of the above-captioned claims.  But on August 5, 2024, \nClaimant’s  current  counsel  made  her  entry  of  appearance  and  requested  a \ncontinuance.    I  granted  the  continuance for  30  days,  and  informed  the  parties \nthat  I  was  continuing  to  hold  the  Motion  to  Dismiss  in  abeyance.  Another \nprehearing telephone conference was set for October 7, 2024.  But Claimant’s \ncounsel again requested a continuance, citing “communication issues” and the \nbelief  that  the  additional  time  would  allow  for  an  amicable  resolution  of  the \nmatter.  However, the conference took place as scheduled.  By agreement of the \nparties  at  that  conference, Claim  No. H004961  was  returned  to  general  files  so \nthat discovery could be completed; and Claim No. H102650 would proceed to a \nhearing  on  the  Motion  to  Dismiss.   In  a  response  dated  October  28,  2024, \nClaimant’s counsel objected to the dismissal of the latter claim and requested a \nhearing.    Another  conference  on  both  files  was  eventually  scheduled  for  March \n31, 2025.  That conference led to the setting of the instant hearing for June 12, \n2025, and then the re-setting of such at the request of Claimant’s counsel. \n At  the  hearing,  as  alluded  to  above,  Claimant  indicated  that  he  was \nreversing  course and now  not only no  longer  objected to the  dismissal  of  Claim \nNo.  H102650,  but  was  amendable  to  its  dismissal with  prejudice.    When \nquestioned by both sides, he testified as follows: \nMS. ROGERS:  (Continuing) \n \nQ. Is it your intention to agree to a dismissal of Claim H102650? \n\nCOBURN – H004961 & H102650 \n \n10 \n \nA. Yes. \n \nQ. And have you had time to consult with counsel about that? \n \nA. Yes. \n \nQ. And you understand what that means, the dismissal of that? \n \nA. Yes. \n \nQ. And  you  understand  that  you  won’t  be  able  to  bring  that \nclaim again at a later time? \n \nA. Yes. \n \nQ. Okay.  And then you also have Claim H004961? \n \nA. Yes. \n \nQ. And that’s for an alleged injury of the head, neck, shoulder, \nand back? \n \nA. Yes. \n \nQ. And  do  you  understand  that  the  issues  of  that  claim  will  be \nreserved today? \n \nA. Yes. \n \n. . . \n \nBY MS. MARKHAM: \n \nQ. Mr.  Coburn,  an  AR-C  was  filed  on  your  behalf  under  Claim \nNo. H102650 on March 16, 2021, is that correct? \n \nA. Correct. \n \nQ. And in that matter it is alleged that you sustained an injury to \nyour back as an aggravation of a previous injury of June 29, \n2020, correct? \n \n\nCOBURN – H004961 & H102650 \n \n11 \nA. What’s that date again for the— \n \nQ. June 29, 2020. \n \nA. Yes. \n \nQ. Okay.  And it’s your desire today to voluntarily dismiss that \nclaim with prejudice, is that correct? \n \nA. Correct. \n \nQ. You understand that the phrase “with prejudice” means that \nyou can’t come back and refile that claim? \n \nA. Yes. \n \nQ. Okay.  And you’ve had an opportunity to speak with your \nattorney about that issue? \n \nA. Yes. \n \nQ. And  it  is  your  desire  as  we  proceed  forward  to  have  that \nclaim dismissed? \n \nA. Yes. \n \nDiscussion \n 11 C.A.R. § 25-110(d) 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(a)(4) (Repl. 2012) reads: \n(4)   If   within   six   (6)   months   after   the   filing   of   a   claim   for \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim may,  upon  motion  and  after \n\nCOBURN – H004961 & H102650 \n \n12 \nhearing,  be  dismissed  without  prejudice  to  the  refiling  of  the  claim \nwithin  limitation  periods  specified  in  subdivisions  (a)(1)-(3)  of  this \nsection. \n \n. . . \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 \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 \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove \nby  a  preponderance  of  the  evidence  that  dismissal  should  be  granted.    The \nstandard “preponderance of the evidence” means the evidence having greater \nweight  or  convincing  force.   Barre  v.  Hoffman,  2009  Ark.  373,  326  S.W.3d  415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.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 \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\nCOBURN – H004961 & H102650 \n \n13 \n I credit Claimant’s testimony as set above.  His  desire  to  dismiss  Claim \nNo.  H102650  corresponds  with  the  procedural  history  of  this  matter,  which \nreadily reflects a lack of its prosecution.  Thus, the evidence preponderates that \ndismissal is warranted under 11 C.A.R. § 25-110(d).  Because of this finding, the \napplication of § 11-9-702(a)(4) is moot and will not be addressed. \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. \n137, 744 S.W.2d 402 (1988).  Based on the foregoing, I find that the dismissal of \nthis claim should be and hereby is entered with prejudice. \nCONCLUSION \n Judgment is hereby rendered in accordance with the Findings of Fact and \nConclusions of Law set forth above. \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. H004961 & H102650 JOHNNY COBURN, EMPLOYEE CLAIMANT ARKANSAS STEEL ASSOC., LLC EMPLOYER RESPONDENT PHOENIX INS. CO., CARRIER RESPONDENT OPINION FILED AUGUST 20, 2025 Hearing before Chief Administrative Law Judge O. Milton Fine II on July 24, 2024, in Little R...","fetched_at":"2026-05-19T22:37:45.840Z","links":{"html":"/opinions/alj-H004961-2025-08-20","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Coburn_Johnny_H102650_20250820.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}