{"id":"alj-H010489-2023-02-10","awcc_number":"H010489","decision_date":"2023-02-10","opinion_type":"alj","claimant_name":"John Baker","employer_name":"Performance Food Group, Inc","title":"BAKER VS. PERFORMANCE FOOD GROUP, INC. AWCC# H010489 FEBRUARY 10, 2023","outcome":"dismissed","outcome_keywords":["dismissed:4","granted:1","denied:2"],"injury_keywords":["shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//BAKER_JOHN_H010489_20230210.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BAKER_JOHN_H010489_20230210.pdf","text_length":7710,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H010489 \n \n \nJOHN A. BAKER, EMPLOYEE CLAIMANT \n \nPERFORMANCE FOOD GROUP, INC., \n EMPLOYER RESPONDENT \n \nINDEMN. INS. CO. OF NO. AM., \n CARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 10,  2023 \n \nHearing before Administrative Law Judge O. Milton Fine II on February 8, 2023, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  David  C.  Jones,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  February  8,  2023,  in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nWithout objection, the Commission file on this claim has been incorporated herein \nin  its  entirety  by  reference.  Admitted  into  evidence  was  Respondents’  Exhibit  1, \nforms,  pleadings  and  correspondence  related  to  the  claim,  consisting  of 28 \nnumbered pages. \n\nBAKER – H010489 \n2 \n \n The record reflects the following procedural history: \n On  or  about  December  16,  2020,  a  Form  AR-1  was  filed  in  this  case, \nreflecting  that  Claimant  purportedly  sustained  an  injury  to  his  left  shoulder  on \nAugust  3,  2020, while  lifting  a  case  of  product  during  the  making  of  a  delivery.  \nAlso  on  December  16,  2020,  Respondents  filed  a  Form  AR-2,  representing  that \nthey accepted the injury as compensable and were paying medical and indemnity \nbenefits pursuant thereto.  Claimant has not filed a Form AR-C. \n Attorney  Daniel  E.  Wren  entered  his  appearance  before  the  Commission \non  this  matter  on  April  23,  2021.    However,  he  filed  a  motion  to  withdraw  on \nAugust 12, 2021.  In an  order entered on August 25, 2021, the Full  Commission \ngranted the motion under AWCC Advisory 2003-2. \n On  December  5,  2022  ,  Respondents  filed  the  instant  Motion  to  Dismiss \nand  brief  in  support  thereof.    Therein,  they  argued  that  over  six  months  had \nelapsed  without  Claimant  requesting  a  hearing  or  taking  any  other  action  in \npursuit of his claim.  They also asserted that it had been more than a year since \nhe had undergone any authorized treatment on his shoulder.  The Commission on \nDecember  16,  2022, wrote  Claimant,  asking  for  a  response  to  the  motion  within \ntwenty  (20)  days.    The  letter  was  sent  via  certified  and  first-class  mail to  the \naddress for Claimant listed  in the file.  “Vicki Baker” signed for the certified letter \non December  28,  2022;  and  the  first-class  correspondence  was  not  returned.  \nNonetheless, no response to the motion was forthcoming from Claimant. \n\nBAKER – H010489 \n3 \n \n On  January  10,  2023,  a  hearing  on  the  Motion  to  Dismiss  was  scheduled \nfor  February  8,  2023, at  9:30  a.m.  at  the  Commission  in  Little  Rock.  The notice \nwas  sent  to  Claimant  by  first-class  and  certified  mail  at  the  same  address  as \nbefore.    In  this  instance,  the  certified  letter  was  claimed  by  Claimant  on  January \n13, 2023; and as before, the first-class letter was not returned.  The evidence thus \npreponderates that Claimant received notice of the hearing. \n The   hearing   on   the   Motion   to   Dismiss   proceeded   as   scheduled   on \nFebruary 8, 2023.  Again, Claimant failed to appear.  But Respondents appeared \nthrough  counsel  and  argued  for  dismissal  of  the  action  under  AWCC  R.  099.13 \nand Ark. Code Ann. § 11-9-702(a)(4) & (d) (Repl. 2012). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas Workers’  Compensation  Commission  has  jurisdiction \nover this matter. \n2. No Form AR-C has ever been filed in connection with his matter. \n3. No other document before the Commission in this matter constitutes \na claim for additional benefits. \n4. Respondents’ Motion  to  Dismiss  is  denied  because  no  claim  exists \nto be subject to dismissal. \n\nBAKER – H010489 \n4 \n \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).  (Emphasis added)  In turn, §§ 11-9-702(a)(4) & (d) 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 \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  period  specified  in  subsection  (b)  of \nthis section. \n \n Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must \nprove by 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 No  Form  AR-C  has  been  filed  in  this  case.    That  is  the  means  for  filing a \n“formal  claim.”   See  Yearwood  v.  Wal-Mart  Stores,  Inc.,  2003  AR  Wrk.  Comp. \n\nBAKER – H010489 \n5 \n \nLEXIS  739,  Claim  No.  F201311 (Full  Commission  Opinion  filed  June  17,  2003).  \nSee also Sinclair v. Magnolia Hospital, 1998 AR Wrk. Comp. LEXIS 786, Claim No. \nE703502 (Full Commission Opinion filed December 22, 1998)(a claim is “typically” \nfiled via  a  Form  AR-C).    While  a  Form AR-1  was  filed,  that  does  not  suffice  to \ninstigate a claim.  Id. \n Per Ark. Code Ann. § 11-9-702(c) (Repl. 2012): \nA claim for additional compensation must specifically state that it is \na  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  Commission’s  file  discloses  no  document  sufficient  to \nconstitute a filing of a claim for additional benefits under the standard cited above.  \nBecause  no  claim  has  been  filed,  it  follows  that  there  is  no  claim  subject  to \ndismissal  per Respondents’  motion.    The Motion  to  Dismiss  thus  must  be,  and \nhereby is, denied. \nCONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, the Motion to Dismiss is hereby 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. H010489 JOHN A. BAKER, EMPLOYEE CLAIMANT PERFORMANCE FOOD GROUP, INC., EMPLOYER RESPONDENT INDEMN. INS. CO. OF NO. AM., CARRIER RESPONDENT OPINION FILED FEBRUARY 10, 2023 Hearing before Administrative Law Judge O. Milton Fine II on February 8, 2023, in Little...","fetched_at":"2026-05-19T23:10:16.264Z","links":{"html":"/opinions/alj-H010489-2023-02-10","pdf":"https://labor.arkansas.gov/wp-content/uploads//BAKER_JOHN_H010489_20230210.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}