{"id":"alj-H005743-2024-03-13","awcc_number":"H005743","decision_date":"2024-03-13","opinion_type":"alj","claimant_name":"Joe Kell","employer_name":"Nashville Sch. Dist","title":"KELL VS. NASHVILLE SCH. DIST. AWCC# H005743 MARCH 13, 2024","outcome":"dismissed","outcome_keywords":["dismissed:3","denied:1"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Kell_Joe_H005743_20240313.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Kell_Joe_H005743_20240313.pdf","text_length":18114,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H005743 \n \n \nJOE C. KELL, EMPLOYEE CLAIMANT \n \nNASHVILLE SCH. DIST., \n SELF-INSURED EMPLOYER RESPONDENT \n \nARK. SCH. BDS. ASSN., \n THIRD-PARTY ADMR. RESPONDENT \n \n \nOPINION FILED MARCH 13, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on January 10, \n2024, in Little Rock, Pulaski County, Arkansas. \n \nClaimant represented by Mr. Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by Mr. Jarrod S. Parrish, 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 January 10, 2024, in Little \nRock, Arkansas.  Claimant appeared in person and testified.  Respondents were \nrepresented  at  the  hearing  by  Mr. Jarrod  S.  Parrish,  Attorney  at  Law,  of  Little \nRock, Arkansas.  In addition to Claimant’s testimony, the record consists of the \nfollowing exhibits:  Claimant’s Exhibit 1, medical records, consisting of one index \npage  and eight numbered  pages thereafter; Claimant’s Exhibit 2, a handwritten \nlist  of  dates  of  service,  providers, and  charges  therefor,  consisting  of  one  page; \nRespondents’ Exhibit 1, forms,  pleadings,  and  correspondence  related  to this \nclaim, consisting  of two  index  pages  and  46 numbered  pages;  Respondents’ \nExhibit  2,  the  brief  in  support  of  their  Motion  to  Dismiss,  consisting  of  nine \n\nKELL – H005743 \n \n2 \nnumbered  pages.  Also,  in  order  to  address  adequately  this  matter  under  Ark. \nCode Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must “conduct the hearing \n. . . in a manner which best ascertains the rights of the parties”), and without \nobjection,   I   have   blue-backed   to   the   record correspondence   from   the \nCommission’s file on the claim, along with the post-hearing briefs of the parties, \ntotaling ten pages.    In  accordance  with Sapp  v.  Tyson  Foods,  Inc.,  2010  Ark. \nApp. 517, ___ S.W.3d ___, these documents have been served on the parties in \nconjunction with this opinion. \n Moreover, I have blue-backed to the record the post-hearing briefs of the \nparties,  both  filed  on  January  24,  2024,  consisting  of  three  and  four  numbered \npages,   respectively.    Finally,   and   without   objection,   the   transcript   of   the \nSeptember  7,  2021,  hearing  on  this  claim  has  been  incorporated  herein  in  its \nentirety by reference. \n The  evidence  reflects  that on August  27,  2020,  2020,  Claimant through \ncounsel filed a Form AR-C, alleging that he was entitled to the full range of initial \nand  additional  benefits  for  his alleged  injury  in  the  form  of  his  work-related \ncontraction of a case of COVID-19.  Accompanying this form was a letter from his \nattorney  to  the  Commission,  “request[ing  that]  this  claim  be  referred  to  an \nadministrative law judge for a hearing on the issues of compensability, temporary \ntotal  disability  benefits,  medical  expenses,  thirty-six  percent  (36%)  penalty \npursuant  to  [Ark.  Code  Ann.] § 11-9-802(e), and controversion.”  Following  the \nsubmission   of   prehearing   questionnaire   responses   by   the   parties   and   a \n\nKELL – H005743 \n \n3 \nprehearing  telephone  conference  with  them  on  April  20,  2021,  Administrative \nLaw Judge Chandra Black scheduled a hearing for July 13, 2021, at 10:00 a.m. \nin Texarkana on the following issues: \n1. Whether Claimant’s COVID-19 diagnosis is compensable. \n \n2. Whether  Claimant  is  entitled  to  temporary  total  disability  benefits \nfrom June 11, 2020, to a date yet to be determined. \n \n3. Whether Claimant is entitled to medical benefits. \n \n4. Whether Claimant’s attorney is entitled to a controverted attorney’s \nfee. \n \nAll other issues were reserved.  The hearing was later continued to September 7, \n2021.    Following  that  hearing,  on  November  5,  2021,  Judge  Black  entered  an \nopinion that contains the following Findings of Fact and Conclusions of Law: \n1. The  Arkansas  Workers’  Compensation  Commission  has \njurisdiction over this claim. \n \n2. [The following] stipulations [are hereby accepted] as fact[:] \n \n(a) The  Arkansas  Workers’  Compensation  Commission \nhas jurisdiction of the within claim. \n \n(b) The employee-employer-insurance carrier relationship \nexisted  at  all  relevant  times,  including  on  or  about \nJune 10, 2020. \n \n(c) Claimant  is  entitled  to  the  maximum  compensation \nrates for a 2020 injury. \n \n(d) All   issues   not   litigated   are   reserved   under   the \nArkansas Workers’ Compensation Act. \n \n(e) Respondents   have   controverted   this   claim   in   its \nentirety. \n \n\nKELL – H005743 \n \n4 \n(f) Respondents are entitled to a credit for a period of 90 \ndays  if  Claimant  is  awarded  temporary  total  disability \ncompensation. \n \n3. Claimant proved by a preponderance of the evidence that on \nor about June 10, 2020, he contracted COVID-19 during and \nin the course of his employment while attending a mandatory \nmeeting with Nashville School District administrators. \n \n4. Claimant proved by a preponderance of the evidence that all \nof the medical treatment of record (including Dr. Ferguson’s \nrecommendations   on   August   25,   2020)   is   reasonably \nnecessary  in  connection  with  the  injury  received  by  him.  \nHowever,  there  is  no  documented  recommendation  by  any \nphysician  or  medical  personnel  for  any  further  treatment  for \nClaimant’s  compensable  injury.    Therefore  .  .  .  Claimant \nfailed   to   prove   his   entitlement   to   any   further   medical \ntreatment due to his COVID-19 injury of June 10, 2020. \n \n5. Claimant  proved  his  entitlement  to  temporary  total  disability \n[benefits] from June 13, 2020, until November 25, 2020. \n \n6. Claimant’s attorney  is  entitled  to  a  controverted attorney’s \nfee  on  the  indemnity  [benefits] awarded  pursuant  to  this \nopinion. \n \nOn November 17, 2021, Judge Black entered an order that changed Stipulation \nNo. 6 to read:  “Claimant’s entitlement to temporary total disability [benefits], if \nany, prior to the cessation of his pay on February 28, 2021, is limited to an award \nof 90 days.”  This decision was not appealed.  The earlier opinion is thus binding \non  this  proceeding  under  the  Law  of  the  Case  Doctrine;  and  it  is res  judicata.  \nSee Thurman v. Clarke Industries, Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994). \n The  record  reflects  that  no  further  activity  occurred  on  this  claim  until \nSeptember  22,  2023,  when  Respondents  filed  the  instant  Motion  to  Dismiss \nunder AWCC R. 099.13 and Ark. Code Ann. § 11-9-702 (Repl. 2012).  Therein, \n\nKELL – H005743 \n \n5 \nthey  alleged  that:    (1)  more  than  six  months  had  elapsed  since  the  filing    the \nForm  AR-C; and (2) Claimant had “not sought any type of bona fide hearing” \nbefore  the  Commission  over  the  previous  six-month  period.    The  file  was \nreassigned  to  Judge  Black  on  September  25,  2023;  and that  same  date,  she \nwrote  Claimant  and  his  attorney,  requesting  a  response  to  the  motion  within  20 \ndays.  His counsel responded by way of a prehearing questionnaire response on \nOctober 11,  2023,  contending  that  Claimant’s  “claims  [sic]  should  not  be \ndismissed.”    The only  issue  listed  in  the  response  concerned  the  motion;  no \nbenefits were requested or listed as being in dispute.  Respondents, in turn, filed \ntheir  prehearing  questionnaire  response on  November  28,  2023;  likewise,  they \ndid  not  identify  any  benefits  as  being  at  issue  in  the  claim.    Following  a \nprehearing  telephone  conference  on  November  29,  2023,  Judge  Black  sent  an \nemail to the parties that reads: \nAt  the  time  of  the  [prehearing  telephone  conference]  today  in  the \nabove  claim,  Mr.  Davis  asked  Mr.  Parrish  to  provide  him  with \nconfirmation that the Respondents have paid to or on behalf of the \nClaimant  all  appropriate  benefits/payments  due  him  under  the \nArkansas   Workers'   Compensation   Act.      Should   Mr.   Parrish \naccomplish  this  task  to  Mr.  Davis’s  satisfaction[,]  then  he  will \nwithdraw his objection to the [Motion to Dismiss]. \n \nOn    November    30,    2023,    Respondents    filed    an    amended    prehearing \nquestionnaire  response.    Yet  again,  no  issues  were  identified  for  adjudication \nother  than  whether  the  instant  claim  should  be  dismissed.   On  December  1, \n2023,  a  hearing  on  the  motion  was  scheduled  for  December  1,  2023,  at  12:00 \np.m. at the Commission in Little Rock. \n\nKELL – H005743 \n \n6 \n I advised the parties by email that I would be presiding over the hearing in \nplace  of  Judge  Black.    On  the  day before the hearing, Respondents’ counsel \nwrote me: \nIt  is  my  understanding  that  you  are handling  the  dismissal  hearing \ntomorrow.      Per   the   discussion   at   the   [prehearing   telephone \nconference] reflected in [Judge Black’s November 29, 2023, email], \nMr.   Davis   wanted   confirmation   that all bills   had   been   paid \nassociated with Judge Black’s award of benefits before withdrawing \nthe objection to the Motion to Dismiss.  As part of his exhibit packet, \nMr.  Davis  introduced  a  report  from  a  diagnostic  study  done  at \nBaptist  [Health]  that  did  not  match  any  of  the  payments  on  the \npayment  ledger.    My  client  has  agreed  to  pay  that  bill.    I  have \nattached the “Explanation of Benefits” reflecting application of the \nfee schedule.  The check will be issued tomorrow.  By copy of this \ncorrespondence, I am providing Mr. Davis with confirmation that the \nbill is being paid. \n \nClaimant’s counsel replied to this communication in short order, stating: \nJudge Fine, please be advised of the following:  First, I object to the \nintroduction  of  any evidence  at  this  late  hour.    Second,  I  never\n1\n \nmade any  agreement not  to  oppose  the  motion.   Third,  we  plan  to \nbe present for the hearing 1/10/24. \n \n The  hearing took  place  as  scheduled.    Both  parties  appeared,  and \nClaimant  testified.  Respondents  argued  for  dismissal  under  both  §  11-9-\n702(a)(4) & (d) (Repl. 2012) and Rule 13.  The following exchange took place: \nJUDGE FINE:  Since you’re on the stand, in the event that I do not \ndismiss  your  claim,  are  you  asking  for  a  hearing  on  your  claim?  \nAnd I understand you’re not an attorney, sir, but are you asking for \na hearing at this point on your claim? \n \n \n \n1\nThis statement notwithstanding, nothing in the evidentiary record reflects \nthat Claimant replied to Judge Black’s November 29, 2023, email that purportedly \nsummarized the substance of the prehearing telephone conference, to take issue \nwith her characterization of the understanding reached at the conference. \n\nKELL – H005743 \n \n7 \nTHE WITNESS:  If that’s what it takes to get reimbursed for these \nexpenses, yes. \n \nClaimant’s reference to “these expenses” is a list of medical expenses detailed in \nhis Exhibit 2.  His testimony was that these six items pertains to treatment he has \nallegedly undergone and billed to his health insurance; the amount listed, totaling \n$1,692.19, is the portion for which he is responsible.  The items are: \nJuly 13, 2022..................St. Vincent Heart.........................$121.77 \nNovember 29, 2022.........St. Vincent Heart.........................$403.48 \nJune 21, 2023.................Howard Memorial........................$119.99 \nAugust 22, 2023..............St. Vincent Heart.........................$262.60 \nSeptember 8, 2023..........Howard Memorial..........................$89.35 \nNovember 28, 2023..........Irhythm Technologies...................$695.00 \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 this claim. \n2. All parties received notice of the Motion to Dismiss and the hearing \nthereon pursuant to AWCC R. 099.13. \n\nKELL – H005743 \n \n8 \n3. Respondents have not proven by a preponderance of the evidence \nthat  Claimant  has  failed  to  prosecute this  claim under AWCC  R. \n099.13. \n4. Respondents have not proven by a preponderance of the evidence \nthat  this  claim  should  be  dismissed  under  Ark.  Code  Ann.  §  11-9-\n702(a)(4) or (d) (Repl. 2012). \n5. Claimant has requested a hearing on the issue of his entitlement to \nadditional medical benefits. \n6. This claim will proceed to a hearing. \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(a)(4) & (d) (Repl. 2012) read: \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 \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 \n\nKELL – H005743 \n \n9 \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. \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 Dismissal  under  either §  11-9-702(a)(4)  or  (d)—regardless  of  which \nprovision  applies—is  not called  for because  Claimant  clearly  complied  with  the \nabove-quoted  language in  these  provisions by  making  a  bona  fide  hearing \nrequest—a request that ultimately led to a hearing on the merits on September 7, \n2021.  This statute must be strictly construed, in accordance with Ark. Code Ann. \n§ 11-9-704(c)(3) (Repl. 2012).  See Duke v. Regis Hairstylists, 55 Ark. App. 327, \n\nKELL – H005743 \n \n10 \n935  S.W.2d  600  (1996).    “Strict  construction  means  narrow  construction  and \nrequires that nothing be taken as intended that is not clearly expressed.”  Hapney \nv. Rheem Mfg. Co., 341 Ark. 548, 26 S.W.3d 771 (2000). \n The Arkansas Court of Appeals in Johnson, supra, held that a claim could \nbe dismissed for lack of prosecution based on the fact that there is no justiciable \nissue.    The  authority for  doing  so  comes  under  Rule  13,  which  the  Commission \npromulgated  under  Ark.  Code  Ann.  §  11-9-205(a)(1)(A)  (Repl.  2012).    This \nprovision authorizes it “[t]o make such rules and regulations as may be found \nnecessary[.]”  See Dura Craft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d \n562 (1969); Johnson, supra.  Contra Dillard v. Benton Cty. Sheriff’s Off., 87 Ark. \nApp. 379, 192 S.W.3d 287 (2004)(“Rule 13 . . . allows a dismissal . . . pursuant to \nArk.  Code Ann.  § 11-9-702(b)(4),  the portion  of  the  statute  relating  to additional \nbenefits”).  Certainly, such a claim could be re-filed  if  a  justiciable  issue  arises, \nprovided  that  all  other  prerequisites  for  a  cognizable  claim  are  met.  As  shown \nabove, Claimant  testified  that  he  would  like  a  hearing  on  his  entitlement  to \nreimbursement  for  the  expenses  itemized  above.    I  credit  this.    Consequently, \ndismissal  is  not  called  for  under Johnson, supra,  since  there  are  justiciable \nissues present. \n After  consideration  of  the  evidence,  I  find  that  while  both  Claimant  and \nRespondents  were  given  reasonable  notice  of  the  Motion  to  Dismiss  hearing \nunder Rule 13, he has not yet abridged that rule.  Based on his hearing request, \n\nKELL – H005743 \n \n11 \nprehearing  questionnaires  will  be  immediately  issued  to  the  parties,  and  this \nmatter will again 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 NO. H005743 JOE C. KELL, EMPLOYEE CLAIMANT NASHVILLE SCH. DIST., SELF-INSURED EMPLOYER RESPONDENT ARK. SCH. BDS. ASSN., THIRD-PARTY ADMR. RESPONDENT OPINION FILED MARCH 13, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on January 10, 2024, ...","fetched_at":"2026-05-19T22:56:22.279Z","links":{"html":"/opinions/alj-H005743-2024-03-13","pdf":"https://labor.arkansas.gov/wp-content/uploads/Kell_Joe_H005743_20240313.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}