{"id":"alj-H101398-2023-02-23","awcc_number":"H101398","decision_date":"2023-02-23","opinion_type":"alj","claimant_name":"Rita Jordan","employer_name":"Hino Motor Mfg., USA, Inc","title":"JORDAN VS. HINO MOTOR MFG., USA, INC. AWCC# H101398 FEBRUARY 23, 2023","outcome":"dismissed","outcome_keywords":["dismissed:3","denied:1"],"injury_keywords":["hip","knee","ankle","back","lumbar","neck"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//Jordan_Rita_H101398_20230223.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Jordan_Rita_H101398_20230223.pdf","text_length":19757,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H101398 \n \n \nRITA JORDAN, EMPLOYEE CLAIMANT \n \nHINO MOTOR MFG., USA, INC., \n EMPLOYER  RESPONDENT \n \nSOMPO AMER. FIRE & MARINE INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 23, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on  January 27, \n2023, in Marion, Crittenden County, Arkansas. \n \nClaimant pro se.\na\n \n \nRespondents  represented  by  Messrs.  Michael  E.  Ryburn  and  Zachary  Ryburn, \nAttorneys at Law, Little Rock, Arkansas. \n \n \n On  January  27,  2023,  the  above-captioned  claim  was  heard  in  Marion, \nArkansas.    A  prehearing  conference  took  place  on  September  12,  2022.    A \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. \n \n \n1\nClaimant was represented at the prehearing telephone conference by Ms. \nMarie  A.  Crawford,  Attorney  at  Law,  of  Sherwood,  Arkansas.    However,  on \nOctober 6, 2022, I entered an  order allowing Ms. Crawford to withdraw from the \nmatter pursuant to AWCC Advisory 2003-2. \n\nJORDAN - H101398 \n2 \n \nStipulations \n The  parties  discussed  the  stipulations  set  forth  in  Commission  Exhibit  1.  \nThey are the following, which I accept: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  employer/employee/carrier  relationship  existed  on  or  about \nAugust 22, 2019. \n3. Respondents have controverted this claim in its entirety. \n4. Claimant’s average weekly wage entitles her to compensation rates \nof $333.00/$250.00. \nIssues \n The parties discussed the issues set forth in Commission Exhibit 1.   After \namendments at the hearing, the following were litigated: \n1. Whether  the  January  27,  2023,  hearing  on  this  claim  should  be \ncontinued. \n2. Whether  this  claim  should  be  dismissed  pursuant  to  AWCC  R. \n099.13   due   to   Claimant’s   leaving   (without   permission) the \ncourthouse   during   her   testimony   and   thereby   preventing   the \ncompletion of the hearing. \n3. Whether  this  claim  for  initial  benefits  is  barred  by  the  statute  of \nlimitations. \n\nJORDAN - H101398 \n3 \n \n3. Whether   Claimant   sustained   compensable   injuries   by   specific \nincident  to  her  right  hip,  leg,  knee,  shin,  ankle,  foot,  elbow  and \nhand, along with her back and buttocks. \n4. Whether  Claimant  sustained  compensable  consequences  in  the \nforms of lumbar radiculitis and radiculopathy. \n5. Whether Claimant is entitled to reasonable and necessary medical \ntreatment of her alleged injuries. \n All other issues have been reserved. \nContentions \n After amendments at the hearing, the respective contentions of the parties \nread as follows: \n Claimant: \n1. Claimant  suffered  injuries  to  the  right  foot,  right  leg,  right  ankle, \nback, buttocks, right arm, and right elbow in an accident that arose \nout  of  and  in  the  course  of  employment  with  the  respondent \nemployer on August 22, 2019. \n2. On  the  date  of  the  accident,  Claimant’s  job was  on  the  production \nline and involved the inspection of truck axles. \n3. Claimant picked up two drums for placement on each end of a truck \naxle  when  a  forklift  driver  hit  the  chute  and  knocked  it  onto \nClaimant’s right foot.  The foot became trapped under the frame of \nthe  chute  as  a  result.    This,  in  turn,  caused  Claimant  to  fall \n\nJORDAN - H101398 \n4 \n \nbackwards onto the floor while still holding the drums.  She landed \non her back and buttocks.  The forklift driver and another employee \nhad to lift the chute from Claimant’s right foot and ankle in order to \nfree her. \n4. Claimant  required  immediate  medical  treatment.    The  medical \nproviders  at  Coast  to  Coast  Medical,  LLC,  diagnosed  her  with \ncontusion  of  the  foot  and  noted  tenderness  to  the  top  of  the  foot.  \nShe  also  suffered  abrasions  and  swelling  to  the  foot,  along  with \npain.    The  medical  provider  released  Claimant  with  no  restrictions \nafter the medical appointment on the same date of the accident.  In \naddition,  the  respondent  employer  required  that  she  return  to  the \nproduction line at the conclusion of the initial medical appointment.  \nIn  addition,  on  the  same  date  as  the  accident,  the  respondent \nemployer  directed  her  to  re-enact  the  accident,  which  included \ngetting down on the floor where she had fallen and placing her leg \nback  under  the  chute.    However,  Claimant  was  unable  to  perform \nthe  re-enactment  because of pain  and  swelling.   She  informed  the \nrespondent  employer  that  she  was  unable  to  continue  regular \nduties on the production line. \n5. After   the   date   of   the   accident,   Claimant   continued   medical \ntreatment at Coast to Coast Medical.  In addition, she has required \nmedical  treatment  at  OrthoSouth  for  right  leg  and  back  pain,  plus \n\nJORDAN - H101398 \n5 \n \nleg  swelling  and  numbness;  with  Dr.  Michael  Hood,  with  Delta \nOrthopedics  and  Sports  Medicine,  for  right  leg  and  hip  pain;  with \nDr.  Phillip  Green,  M.D.,  with  MidSouth  Pain  and  Anesthesia,  for \nradiculopathy;  with  Marion  Minor  Medical  for  pain  in the  right  knee \nand hip joints; with East Arkansas Family Health Center for right leg \npain  and  swelling;  and  with  Diagnostic  Imaging,  P.C.,  for  lumbar, \nright hip, and right leg pain. \n6. The  pain  from  the  injuries  that  Claimant  suffered  in  the  accident \nhave  become  chronic  and  have  developed  into  radiculopathy  and \nradiculitis. \nRespondents: \n1. Respondents  contend that  the  incident in question did not occur in \nthe  manner  alleged  by  Claimant.    She  lacks  objective  medical \nfindings  of  an  injury.    The  alleged  injuries  occurred  prior  to  the \nevent  at  issue.  The  statute  of  limitations  bars  all  or  part  of  this \nclaim.    Specifically,  any  claim  for  a  body  part  other  than  the  right \nfoot is time-barred. \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  the  claimant  and  to  observe  her \n\nJORDAN - H101398 \n6 \n \ndemeanor, I hereby make the following findings of fact and conclusions of law in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  stipulations  set  forth  above  are  reasonable  and  are  hereby \naccepted. \n3. Claimant’s  motion  to  continue  the  hearing  is  without  merit  and  is \nhereby denied. \n4. Because  the  evidentiary  portion  of  the  hearing  was  not  completed \n(due  to  Claimant  leaving  the  hearing  while  still  on  the  witness \nstand),  the  merits  of  the  substantive  issues  cannot  be  reached on \nthe evidentiary record. \n5. Respondents have proven by a preponderance of the evidence that \nthe claim should be dismissed without prejudice pursuant to AWCC \nR.   099.13   due  to   Claimant’s   leaving   (without   permission)   the \ncourthouse during her testimony, which prevented the hearing from \nbeing completed. \n6. Because  of  the  above  finding,  the  remaining  issues—whether  this \nclaim  for  initial  benefits  is  barred  by  the  statute  of  limitations; \nwhether   Claimant   sustained   compensable   injuries   by   specific \nincident  to  her  right  hip,  leg,  knee,  shin,  ankle,  foot,  elbow  and \nhand,   along   with   her   back   and   buttocks;   whether   Claimant \n\nJORDAN - H101398 \n7 \n \nsustained  compensable  consequences  in  the  forms  of  lumbar \nradiculitis  and  radiculopathy;  and  whether  Claimant  is  entitled  to \nreasonable  and  necessary  treatment  of  her  alleged  injuries—are \nmoot and will not be addressed. \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness. \n In  addition  to  the  Prehearing  Order  discussed  above,  admitted  into \nevidence  in  this  case  were  the  following:   Claimant’s  Exhibit  1,  a  compilation  of \nher medical records, consisting of 50 numbered pages; and Respondents’ Exhibit \n1, Claimant’s Forms AR-C filed on February 4, 2021, and July 1, 2021, consisting \nof two pages. \nAdjudication \nA. Motions for a Continuance and to Dismiss \n During the hearing, Claimant took the witness stand.  Because she had no \nattorney  to  question  her  on  direct  examination,  I  conducted  this  portion  of  her \nexamination,  asking  questions  that  were  geared  toward  helping  me  to  make \nfindings  of  fact  and  conclusions  of  law  on  the  above-stated  issues.    [R.  13-36]  \nThis  was  in  keeping  with  Ark.  Code  Ann. §   11-9-705(a)(1)  (Repl.  2012),  which \nprovides in pertinent part that the “Commission . . . may make such investigation \nor inquiry, or conduct the hearing, in a manner as will best ascertain the rights of \n\nJORDAN - H101398 \n8 \n \nthe  parties.”  At  the  end  of  this  line  of  questioning,  Respondents’  co-counsel \nbegan his cross-examination.  [R. 36] \n During  cross-examination,  co-counsel  asked  about  two  discrepancies  in \nher  testimony.    The  first  was  her  testimony  on  direct  that  she  had  no  previous \nback  problems,  when  she  had  been  involved  in  a  motor  vehicle  accident  less \nthan  one  year  prior  to  the  incident  at  issue,  which  resulted  in  her  undergoing \nback  treatment.    [R.  36-37]    The  second  was  her  testimony  that  she  had  been \ninvolved in any accidents since the incident at issue that had caused her to suffer \nan  injury.    Asked  about  medical  records  purporting  to  bear  her  name  that \nreflected  that  she  passed  out  while  walking  up  steps  and  had  injured  her  neck, \nshe  stated  that  she  had  no  memory  of  such  an  occurrence.    [R.  37-38]    Co-\ncounsel, still conducting his cross-examination into matters related to Claimant’s \ncredibility,\nb\n segued into questions about her treatment for anxiety.  The following \nexchange took place: \nQ. Matter of fact, one doctor in these reports says your anxiety \nis  a  bigger  problem  than  anything  you  sustained  in  this \naccident. \n \nA. No, sir. \n \nQ. Why do you have anxiety? \n \n2\nThe determination  of  a  witness’s  credibility  and  how  much  weight  to \naccord  to  that  person’s  testimony  are  solely  up  to  the  Commission.   White  v. \nGregg   Agricultural   Ent.,   72   Ark.   App.   309,  37   S.W.3d  649   (2001).  The \nCommission must sort through conflicting evidence and determine the true facts.  \nId.    In  so  doing,  the  Commission  is  not  required  to  believe  the  testimony  of  the \nclaimant or any other witness, but may accept and translate into findings of fact \nonly those portions of the testimony that it deems worthy of belief.  Id. \n\nJORDAN - H101398 \n9 \n \n \nA. Dealing with life, sir. \n \nQ. And you’re taking a drug called Chlorazapam? \n \nA. Yes, sir. \n \nQ. Do you still take it? \n \nA. I  hope  I’m  done.    (Yelling)    That  rings—that’s  part  of  the \nproblem.  I’m done, done. \n \nJUDGE FINE:  Ma’am.  Ma’am, hang on. \n \nA. I’m  done.    Done.    That  question,  y’all  can  have  it.    I  don’t \ncare.  (Witness crying)  I’m done with this. \n \nJUDGE FINE:  Ma’am— \n \nA. No.  I’m done.  (Claimant left the room) \n \n[R. 39-40] \n \n I  recessed  the  hearing  and  attempted  to  locate  Claimant.    This  was \nunsuccessful.  She apparently had left the courthouse.  [R. 41]  Thereafter, I went \nback on the record.  The following colloquy occurred: \nJUDGE FINE:  Just to recap, prior to me going off the record, while \nthe claimant was undergoing cross-examination she became visibly \nupset  and  stood  up  from  her  chair.    And  I  attempted  to  calm  her \ndown  and  asked  her  to  remain,  because  she  was  making  actions \nthat was indicating that she was going to leave the courtroom.  And I \ndon’t  know  how  much  of  this  can  be  taken  down  because  she  was \ntalking  over  any  attempts  to  speak  with  her.    And  basically,  again, \nshe said, ‘I’m done with this.”  And she left the hearing room.  At that \npoint I recessed the hearing and attempted to locate the claimant in \nthe  building;  and  the  nearest  I  can  ascertain,  based  upon  my \nattempt  on  this,  is  that  she  departed  the  premises,  so  suffice  it  to \nsay  I  think  the  claimant  does  not  appear  to  have  any intention  of \nreturning and resume taking the stand.  It certainly  does not appear \nto  be  the  case.    So  with  that  in  mind,  I’m  turning  this  over  to  the \n\nJORDAN - H101398 \n10 \n \nrespondents  and  asking  if  you  have  anything  you  wish  to  offer  or \nmove for at this point. \n \nMR.   MIKE   RYBURN:      Yes,   Your   Honor.      Based   upon   our \nobservation,  it  appears  to  me  that  the  claimant  has  abandoned  her \nclaim.    She  announced  that,  I  believe,  that “Y’all  can  have  this.    I \ndon’t  want  to  do  this  anymore,”  and  left  the  courtroom  while  the \nhearing  was  in  session.    Therefore,  we  ask  that  this  claim  be \ndismissed— \n \nJUDGE FINE:  Okay.  Under Rule— \n \nMR. MIKE RYBURN:  —under Rule 13. \n \nJUDGE FINE:  13 is for want of prosecution. \n \nMR. MIKE RYBURN:  Yes, sir. \n \nJUDGE  FINE:    All  right.    I  don’t  think  there  is  anything  else  to  be \ndone  at  this  point,  since  it  doesn’t  appear  that  we  can  resume  the \nhearing because of the claimant departing, so what I will do at this \npoint   is   I’m   going   to   take   the   respondents’   motion   under \nadvisement. \n \n[R. 41-42] \n Thereafter,   Respondents’   co-counsel   represented   that   he   had   not \ncompleted his cross-examination (which the transcript makes apparent).  In turn, \nI  stated  on  the  record  that  what  had  been  elicited  during  the  relatively  brief \nquestioning  of  Claimant  by  Respondents  had  me  intending  to  ask  the  Claimant \nmore  questions  during  redirect  examination.    [R.  43-44]    It  is  thus  obvious  that \nshe did not finish presenting her case-in-chief. \n Section 11-9-705(a)(1), referenced above, states in its entirety: \nIn  making  an  investigation  or  inquiry  or  conducting  a  hearing,  the \nWorkers’   Compensation   Commission   shall   not   be   bound   by \ntechnical  or  statutory  rules  of  evidence  or  by  technical  or  statutory \n\nJORDAN - H101398 \n11 \n \nrules  of  procedure,  except  as  provided  by  this  chapter,  but  may \nmake  such  investigation  or  inquiry,  or  conduct  the  hearing,  in  a \nmanner that will best ascertain the rights of the parties. \n \nThe  Commission  has  long held that,  notwithstanding  its not being bound  by the \nrules  of  evidence  or  procedure,  it  must  conduct  hearings  in  a  manner  that \npromotes “fairness” to the parties.  See, e.g., Moss v. Rogers Logging Co., 2013 \nAR  Wrk.  Comp.  LEXIS  547,  Claim  No.  G101576  (Full  Commission  Opinion  filed \nAugust  28,  2013); Bryant  v.  Staffmark,  Inc.,  2001  AR Wrk.  Comp.  LEXIS  563, \nClaim  No.  F006077  (Full  Commission  Opinion  filed  March  23,  2001).   See  also \nSapp  v.  Tyson  Foods,  2010  Ark.  517, 2010  Ark.  App.  LEXIS  549.    I  find  that  to \nrule  on  the  merits  of  the  claim  based  on  the  incomplete  record  would  unfairly \nsurprise and prejudice Respondents.\n \n That said, Claimant ultimately returned to the hearing, at 12:15 p.m.  This \nwas roughly 30 minutes after she departed, which took place at 11:43 a.m.  She \ntestified  that  she  had  been  in  the  parking  lot  of  the  courthouse;  and  she  asked \nme at that point to resume the hearing.  Respondents objected, pointing out that \nonly  15  minutes  remained  on  the  allotted  time  for  the  hearing—and  that their \ncounsels  would  be  trying  the  next  hearing  on  my  docket  as  well.    [R.  49-50]      I \nrepresented to the parties that insufficient time remained to complete the hearing.  \n[R.  50-51]  I  again  took  the  Motion  to  Dismiss  under  advisement,  as  I  did \nClaimant’s motion to continue the hearing and resume it at a later date.  [R. 52] \n\nJORDAN - H101398 \n12 \n \n Under AWCC R. 099.13: \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)(discussing, inter alia, Rule 13). \n As shown by the evidence, Claimant without good cause  and in defiance \nof  the  Commission  departed  from  the  courtroom  while  she  was  still  on  the \nwitness  stand.    She  could  not  be  located.   Insufficient  time  remained,  upon  her \nreturn, to complete the hearing.  Claimant’s Motion for a Continuance is not well-\ngrounded, and is hereby denied.  Not only was her case-in-chief left uncomplete, \nbut  Respondents  were  left  unable  to,  inter  alia,  finish  their  cross-examination.  \nThe  evidence  thus  shows  that  Claimant  has  failed  to  prosecute  her  claim,  and \nthat reasonable notice of the proceeding was provided to her.   Hence, dismissal \nof  the  instant  claim  is  justified  under  Rule  13.  Respondents  have  met  their \nburden of proof on this matter. \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 \n\nJORDAN - H101398 \n13 \n \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)).  Based on the above authorities, I find that \nthe dismissal of this claim should be and hereby is entered without prejudice.\nc\n \nB. Remaining Issues \n Because  of  the  above  findings  and  conclusions,  the  remaining  issues—\nwhether  this  claim  for  initial  benefits  is  barred  by  the  statute  of  limitations; \nwhether Claimant sustained compensable injuries by specific incident to her right \nhip,  leg,  knee,  shin,  ankle,  foot,  elbow  and  hand,  along  with  her  back  and \nbuttocks;  whether  Claimant  sustained  compensable  consequences  in  the  forms \nof  lumbar  radiculitis  and  radiculopathy;  and  whether  Claimant  is  entitled  to \nreasonable  and  necessary  treatment  of  her  alleged  injuries—are  moot  and  will \nnot be addressed. \nIV.  CONCLUSION \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      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n3\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. H101398 RITA JORDAN, EMPLOYEE CLAIMANT HINO MOTOR MFG., USA, INC., EMPLOYER RESPONDENT SOMPO AMER. FIRE & MARINE INS. CO., CARRIER RESPONDENT OPINION FILED FEBRUARY 23, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on January 27, 2023, ...","fetched_at":"2026-05-19T23:10:33.066Z","links":{"html":"/opinions/alj-H101398-2023-02-23","pdf":"https://labor.arkansas.gov/wp-content/uploads//Jordan_Rita_H101398_20230223.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}