{"id":"alj-H008499-2023-05-17","awcc_number":"H008499","decision_date":"2023-05-17","opinion_type":"alj","claimant_name":"Rhetta Burrell","employer_name":"Mcdonald’s Store","title":"BURRELL VS. McDONALD’S STORE AWCC# H008499 MAY 17, 2023","outcome":"dismissed","outcome_keywords":["dismissed:3"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//Burrell_Rhetta_H008499_20230517.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Burrell_Rhetta_H008499_20230517.pdf","text_length":14990,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H008499 \n \n \nRHETTA BURRELL, EMPLOYEE CLAIMANT \n \nMcDONALD’S STORE, EMPLOYER RESPONDENT \n \nSENTRY CASUALTY CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED MAY 17, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on May  10, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \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 May  10,  2023,  in  Little \nRock,  Arkansas.   Claimant,  who  is pro  se,  failed  to  appear.  Respondents  were \nrepresented  at  the  hearing  by  Mr.  Jarrod  S.  Parrish,  Attorney  at  Law,  of Little \nRock,  Arkansas.    The  record  consists  of  (1)  Respondents’  Exhibit  1—forms, \npleadings,  and  correspondence  related  to  the  matter—consisting  of  one  index \npage  and  seven  numbered  pages  thereafter;  and  (2) the  Commission’s  file, \nwhich,   without   objection,   has   been   incorporated   herein   in   its   entirety   by \nreference. \n The evidence reflects that  per the First Report of Injury or  Illness filed on \nOctober  30, 2020,  Claimant purportedly  sustained  injuries  to  several  body parts \n\nBURRELL – H008499 \n \n2 \nat  work on September  16,  2020,  when  a  door  fell  and  struck  her.   According  to \nthe Form AR-2 that was filed on December 11, 2020, Respondents controverted \nthe matter in its entirety.  The file does not reflect that Claimant filed a Form AR-\nC. \n She wrote the Commission on January 20, 2021:  “I need a hearing!”  The \nmatter was at that point turned over to the Legal Advisor Division.  But as a result \nof  Claimant’s  failure  to  complete  a  Legal  Advisor  Questionnaire,  her  file  was \nreturned to the Commission’s general files on March 1, 2021. \n On  September  20,  2021,  Claimant  wrote  the  Commission,  stating  the \nfollowing: \nRhetta Burrell \nH008499 \n \nI want to appeal my workmans comp. \n \nThis  was  interpreted  as  another  hearing  request.    The  Legal  Advisor  Division \nattempted, without success, to set up a conference.  That division on October 5, \n2021,   asked   the   Clerk   of   the   Commission   to   assign   the   matter   to   an \nadministrative law judge so that a hearing could be conducted. \n The   matter   was   assigned   to   then-Administrative   Law   Judge   Katie \nAnderson  on  October  6,  2021.    Prehearing  questionnaires  were  sent to  the \nparties  on  October  7,  2021.    Respondents’  counsel  entered  his  appearance  on \nOctober  18,  2021.    Because  Claimant  filed  to  respond  to  the  questionnaire,  the \nfile was returned to the Commission’s general files on November 1, 2021. \n\nBURRELL – H008499 \n \n3 \n Nothing further occurred on this matter until September 19, 2022.  On that \ndate, the Commission received correspondence from Claimant that reads: \n09/13/2022 \nH008499 \n \nMy  name  is  Rhetta  Burrell  and  I  want  a  hearing  to  appeal  my \nworker comp case:  #H008499. \n \n/s/ Rhetta Burrell \n \nInterpreting  this  as  yet  another  hearing  request,  the  Clerk  of  the  Commission \nreassigned  the  file  to  Judge  Anderson  on  September  20,  2022.    She  re-issued \nquestionnaires to the parties on September 21, 2022.  Once more, Claimant did \nnot  comply  by  filing  a  response.    Thus,  on  October  17,  2022,  her  file  was \nreturned to general files once again. \n Claimant began a new cycle in this process on November 1, 2022, writing \nthe Clerk of the Commission and yet again “asking for an appeal.”  The file went \nback to Judge Anderson’s office\n1\n on November 2, 2022; and questionnaires were \nsent  out  on  November  10,  2022.    In  this  instance,  Claimant  complied, filing  her \nquestionnaire  response  on  December  12,  2022.    Respondents  filed  theirs  on \nDecember  8,  2022.    A  prehearing  telephone  conference  was  scheduled  for \nJanuary  17,  2023.    At  the  end  of  that  conference,  the  parties  agreed  to  set \nanother  conference  for  February  7,  2023.    Later,  on  February  13,  2023,  it  was \nreset for February 21, 2023, and then March 14, 2023.  At the appointed time on \nMarch 14, Claimant did not appear on the call.  Before hanging up, Respondents \n\nBURRELL – H008499 \n \n4 \nindicated  that  they  were  going  to  file  a  motion  to  dismiss  the  claim.    For  that \nreason,  the  file  was  not  returned  to  the  Commission’s  general  files  at  that  time, \nbut was retained to receive the motion. \n On  March  14,  2023,  Respondents  filed  the  instant  Motion  to  Dismiss.  \nTherein, they argued that dismissal was warranted under  AWCC R. 099.13  and \nArk.  Code  Ann.  § 11-9-702  (Repl.  2012)  because  Claimant  failed  to  appear  on \nthe  prehearing  telephone  conference  and  had  not  made  a  bona  fide  hearing \nrequest  within  the  requisite  period.    On  March  16,  2023,  Judge  Howe’s  office \nwrote  Claimant,  giving  her  20  days  to  respond  to  the  Motion  to  Dismiss.    The \ncorrespondence  was  sent  to  Claimant  by  first-class and certified  mail to  an \naddress  for  her  that  was  furnished  by  Respondents  in  the  motion:    477  Valley \nDale  Drive  SW,  Lilburn,  Georgia    30047.    However,  this  address  appears  to  be \nincorrect:    both  items  of  correspondence  were  returned  to  the  Commission, \nundeliverable.    The  notation  from  the  United  States Postal  Service  (“USPS”)  on \nthe  returned  certified  letter  was “NO  SUCH  NUMBER.”  (Emphasis  in  original)  \nUnfortunately, the Commission, although it had Claimant’s email address, did not \nsend  this  communication  to  her  by  that  route  as  well.    Thus,  Claimant  did  not \nreceive this letter. \n When  the  20-day  deadline  came  and  went  (unsurprisingly)  without  a \nresponse  from  Claimant,  a  hearing  was  scheduled  on  the  Motion  to  Dismiss  on \nApril 10, 2023, for May 10, 2023, at 9:30 a.m. at the Commission in Little Rock.  \n \n \n1\nJudge Anderson was replaced by Judge JayO. Howe. \n\nBURRELL – H008499 \n \n5 \nThe  Notice  of  Hearing  was  sent  via  first-class  and  certified  mail  to  a  different \naddress  than  before:    921  Church  Street,  Apartment  145,  Decatur,  Georgia  \n30030.    The  apartment  number  was  supplied  by  Respondents,  per  the  file;  but \nClaimant in her prehearing questionnaire response had previously confirmed the \nstreet  address.    As  before,  both  items  of  correspondence  were  returned  to  the \nCommission.  The first-class letter bore the USPS notation “NOT DELIVERABLE \nAS ADDRESSED.” \n Fortunately, the notice was also emailed to Claimant.  This was the saving \ngrace, for it reached her.  On April 13, 2023, she emailed Judge Howe’s office: \nGood morning.  I sincerely apologize for not being able to make the \ndate  given  [for  the  hearing  on  the  Motion  to  Dismiss]  due  to  me \nhaving  a  child  in  school  full-time.    School  ends  the  last  of  May.    I \nam asking if you will please consider a date after May.  Thank you \nkindly. \n \nRespondents  objected  to  the  continuance  request,  and  Judge  Howe  denied  the \ncontinuance, stating: \nMs. Burrell: \n \nYou  are  not  required  to  attend  the  hearing  on  the  Motion  to \nDismiss.    I  will  note  your  wish  to  attend  as  an  objection  to  the \ndismissal.  If you have any documents you would like to submit for \nthe  record,  please  provide  a  copy  of  these  to  my  office  and \n[Respondents’  counsel]  at  least  10  days  before  the  date  of  the \nhearing. \n \nYou   may   contact   our   Legal   Advisors   should   you   have   any \nquestions. \n \n The hearing on the Motion to Dismiss proceeded as scheduled on May 10, \n2023.    Again,  Claimant  failed  to  appear.    But  Respondents  appeared  through \n\nBURRELL – H008499 \n \n6 \ncounsel  and  argued  for  dismissal  of  the  action  under  the  aforementioned \nauthorities. \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. The  parties  were  provided  reasonable  notice  of  the  Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nher claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby \ndismissed without prejudice under AWCC R. 099.13. \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 \n\nBURRELL – H008499 \n \n7 \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: \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  compensation \nno  bona  fide  request  for  a  hearing has  been  made  with  respect to \nthe  claim,  the  claim  may,  upon  motion  and  after  hearing,  be \ndismissed  without  prejudice  to  the  refiling  of  the  claim  within \nlimitation periods specified in subdivisions (a)(1)-(3) of this 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 As  noted  above,  no  Form AR-C  has  been  filed  in  this  case.    That  is  the \nmeans  for  filing a  “formal  claim.”   See  Yearwood  v.  Wal-Mart  Stores,  Inc., 2003 \nAR  Wrk.  Comp.  LEXIS  739,  Claim  No.  F201311  (Full  Commission  Opinion  filed \nJune  17,  2003).   See  also Sinclair  v.  Magnolia  Hospital,  1998  AR Wrk.  Comp. \nLEXIS  786,  Claim  No.  E703502  (Full  Commission  Opinion filed  December  22, \n1998)(a claim is “typically” filed via a Form AR-C).  While a Form AR-1 was filed \nin this case, that does not suffice to instigate a claim.  Id. \n I  recognize,  however,  that  other  means  exist  to  file  a  claim  for  initial \nbenefits  other  than  a  Form  AR-C.    In Downing  v.  Univ.  of  Ark.,  1999  AR  Work. \nComp. LEXIS 979, Claim No. E209360 (Full Commission Opinion filed March 16, \n1999), the Commission stated: \n\nBURRELL – H008499 \n \n8 \nWhile   it   appears   that   no   court   has   addressed   the   minimum \nrequirements under Arkansas law to state an adequate “petition for \nreview”, in Cook v. Southwestern Bell Telephone Company, 21 Ark. \nApp.  29,  727  S.W.2d  862  (1987)  the  Arkansas  Court  of  Appeals \ndiscussed the minimum requirements necessary for \ncorrespondence   to   the   Commission   to   constitute   a   claim   for \nadditional  compensation  for  the  purposes  of  tolling  the  applicable \nStatute  of  Limitations.     In  that  case,   the  Court  held  that  an \nattorney's  correspondence  notifying  the  Commission  that  he  has \nbeen  employed  to  assist  a  claimant  in  connection  with  unpaid \nbenefits  is  sufficient  to  state  a  claim  for  additional  compensation \nwhere  the  correspondence  also  lists  the  claimant's  name,  the \nemployer's name and the WCC file number. Id., See also, Garrett v. \nSears  Roebuck  and  Company,  43  Ark.  App.  37,  858  S.W.2d  146 \n(1993).    Moreover,  we  have  interpreted Cook  as  requiring  that \ncorrespondence  intended  as  a  claim  for  additional  benefits  (1) \nidentify  the  claimant,  (2)  indicate  that  a  compensable  injury  has \noccurred, and (3) convey the idea that compensation is expected. \n \n(Citations omitted) \n My  review  of  the  Commission’s  file  discloses  a  document  sufficient  to \nconstitute a filing of a claim for initial benefits under the factors cited above.  That \ndocument   is   Claimant’s   prehearing   questionnaire response,   filed   with   the \nCommission on December 12, 2022. \n The  evidence  adduced  at  the  hearing  shows  that  Claimant  has taken  no \naction  in  pursuit  of  her  claim  since  appearing  at  the  prehearing  telephone \nconference  on  January  17,  2023.    Again,  she  failed  to  appear  on  the  one \nscheduled  for  March  14,  2023.    That  marked  the  fourth  time  Claimant  had \nrequested a hearing on her claim, but had failed to follow through.  Moreover, the \nevidence   clearly   shows   that   both   she   and   Respondents   were   provided \nreasonable notice of the Motion to Dismiss and of the hearing thereon.  Thus, the \n\nBURRELL – H008499 \n \n9 \nevidence preponderates that dismissal is warranted under Rule 13.  Because of \nthis finding, it is unnecessary to address the applicability of Ark. Code Ann. § 11-\n9-702(a)(4) (Repl. 2012). \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).    In Abo  v.  Kawneer Co.,   2005  AR Wrk.  Comp. \nLEXIS  5  10,  Claim  No.  F404774  (Full  Commission  Opinion  filed  November  15, \n2005),  the  Commission  wrote:    “In  numerous  past  decisions,  this  Commission \nand  the  Appellate  Courts  have  expressed  a  preference  for  dismissals without \nprejudice.”    (Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v.  Strong, \n75  Ark.  249,  629  S.W.2d  284  (1982)).  Respondents  at  the hearing  asked  for  a \ndismissal without prejudice.  Based on the above authorities, I agree and find that \nthe dismissal of this claim should be and hereby is entered without prejudice.\n2\n \nCONCLUSION \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      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n2\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H008499 RHETTA BURRELL, EMPLOYEE CLAIMANT McDONALD’S STORE, EMPLOYER RESPONDENT SENTRY CASUALTY CO., CARRIER RESPONDENT OPINION FILED MAY 17, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on May 10, 2023, in Little Rock, Pulaski County,...","fetched_at":"2026-05-19T23:07:36.766Z","links":{"html":"/opinions/alj-H008499-2023-05-17","pdf":"https://labor.arkansas.gov/wp-content/uploads//Burrell_Rhetta_H008499_20230517.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}