{"id":"alj-H102239-2024-02-09","awcc_number":"H102239","decision_date":"2024-02-09","opinion_type":"alj","claimant_name":"Sandra Scott","employer_name":"Ark. Ent. For The Dev. Disabled","title":"SCOTT VS. ARK. ENT. FOR THE DEV. DISABLED AWCC# H102239 FEBRUARY 9, 2024","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:1"],"injury_keywords":["shoulder","sprain","rotator cuff"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Scott_Sandra_H102239_20240209.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Scott_Sandra_H102239_20240209.pdf","text_length":9477,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H102239 \n \n \nSANDRA K. SCOTT, EMPLOYEE CLAIMANT \n \nARK. ENT. FOR THE DEV. DISABLED, \n SELF-INSURED EMPLOYER RESPONDENT \n \nRISK MGMT. RESOURCES, \n THIRD-PARTY ADMR. RESPONDENT \n \n \nOPINION FILED FEBUARY 9, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on February 8, 2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Ms.  Melissa  Wood,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.    The  evidentiary  record  consists  Respondents’  Exhibit  1,  forms, \npleadings, and correspondence related to this claim, consisting of one index page \nand  12  numbered  pages  thereafter.    Also,  in  order  to  address  adequately  this \nmatter  under  Ark.  Code  Ann.  § 11-9-705(a)(1)  (Repl.  2012)(Commission  must \n“conduct  the  hearing    .  .  .  in  a  manner  which  best  ascertains  the  rights  of  the \nparties”),   I   have   blue-backed   to   the   record   certain   documents   from   the \nCommission’s  file  on  the  claim,  consisting  of  three  pages.    In  accordance  with \nSapp v. Tyson Foods, Inc., 2010 Ark. App. 517, ___ S.W.3d ___, this blue-backed \nexhibit has been served on the parties in conjunction with this opinion. \n\nSCOTT – H102239 \n \n2 \n The  record  reflects  the  following  procedural  history:   On  March  3,  2021, \nClaimant  filed  her  first  Form AR-C  in  connection  with  this  matter.    Therein,  she \nalleged that  she injured her left shoulder at work on  January 9, 2020, and asked \nfor the full range of initial benefits.  This was expanded to include the full range of \nadditional  benefits  in  a  second  Form  AR-C,  filed  on  her  behalf  by  her  then-\ncounsel, Laura Beth York, on March 23, 2021. \n The claim was heard before the undersigned on September 23, 2021.  On \nNovember  29,  2021,  an  opinion  was  issued  thereon  that  contained  the  following \nFindings of Fact and Conclusions of Law: \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this claim. \n2. The  stipulations  set  forth  above  are  reasonable  and  are  hereby \naccepted[:] \na.  The   employer/employee/carrier   relationship   existed   at   all \nrelevant  times,  including  January  9,  2020,  when  Claimant \nsustained  a  compensable  injury  to  her  left  shoulder  in  the \nform of a sprain. \nb.  Claimant’s  average  weekly  wage  of  $845.45  entitles  her  to \ncompensation rates of $563.00/$422.00. \nc. In the event that Claimant is found to be entitled to temporary \ntotal  disability  benefits,  the  parties  will  be  able  to  confer  and \n\nSCOTT – H102239 \n \n3 \nagree on the applicable dates for which she would be entitled \nto such benefits. \n3. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that \nshe sustained a compensable left shoulder injury by specific incident \nin the form of a rotator cuff tear. \n4. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that \nshe  is  entitled  to  reasonable  and  necessary  treatment  of  her  left \nrotator cuff tear. \n5. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that \nshe is entitled to temporary total disability benefits. \n6. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that \nshe is entitled to a controverted attorney’s fee under Ark. Code Ann. \n§ 11-9-715 (Repl. 2012). \nThereafter, on December 9, 2021, York filed a motion to withdraw from the case.  \nIn  an  order  entered  on  December  21,  2021,  the  Full  Commission  granted the \nmotion under AWCC Advisory 2003-2. \n Claimant,  now pro  se,  pressed  on  with  her  appeal  of  the  decision  by  the \nundersigned.    On  August  22,  2022,  the  Full  Commission  entered  an  opinion  in \nwhich it reversed the administrative law judge opinion.  See Scott v. Ark. Ent. for \nthe Dev. Disabled, 2022 AR Wrk. Comp. LEXIS _____, Claim No. H102239 (Full \nCommission  Opinion  filed  August  22,  2022).    This,  in  turn,  was  appealed  to  the \nArkansas Court of Appeals.  On October 25, 2023, the court reversed the ruling of \n\nSCOTT – H102239 \n \n4 \nthe Full Commission.  See Ark. Enters. for the Developmentally Disabled v. Scott, \n2023 Ark. App. 468, 676 S.W.3d 386.  This essentially left Claimant strictly with an \naccepted claim for a left shoulder sprain. \n Respondents  on  November  29,  2023,  moved  for  a  dismissal  of  the  claim \nwithout  prejudice  under  AWCC  R. 099.13  and  Ark.  Code  Ann.  § 11-9-702  (Repl. \n2012)  because  of,  inter  alia,  Claimant’s  alleged  failure  to  make  a  bona  fide \nhearing  request  within  the  previous  six  months.    My  office  wrote  Claimant on \nNovember 30,  2023,  asking  for  a  response  to  the  motion  within 20  days.    The \nletter was sent via first-class and certified mail to the Benton address for Claimant \nlisted in the file and on her Forms AR-C.  Claimant signed for the certified letter on \nDecember 2,  2023;  and  the  first-class mailing  was  not  returned.  Regardless, no \nresponse to the Motion to Dismiss was forthcoming from her. \n On  January  3,  2024,  I  scheduled  a  hearing  on  the  Motion  to  Dismiss  for \nFebruary  8,  2024,  at  9:30  a.m.  at  the  Commission  in  Little  Rock.    The  Notice of \nHearing was sent to the parties by first-class and certified mail.  In this instance, \nthe  certified  letter  went  unclaimed;  but  as  before,  the  first-class  mailing  was  not \nreturned.  Thus, the evidence preponderates that Claimant received notice of the \nhearing. \n The  hearing  on  the  motion  proceeded  as  scheduled.  Again,  Claimant \nfailed to appear at the hearing.  But Respondents appeared through counsel and \nargued for dismissal under the aforementioned authorities. \n\nSCOTT – H102239 \n \n5 \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  her \nclaim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby  dismissed \nwithout prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \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). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested–dismissal  of the \n\nSCOTT – H102239 \n \n6 \nclaim–by  a  preponderance  of  the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because she has taken no further action \nin  pursuit  of it  (including  appearing  at  the  February  8,  2024,  hearing  to  argue \nagainst  its  dismissal)  since  the  mandate  issued  from  the  Arkansas  Court  of \nAppeals   on   November   28,   2023.      Thus,   the   evidence   preponderates   that \ndismissal is warranted under Rule 13.  Because of this finding, it is unnecessary \nto address the applicability of Ark. Code Ann. § 11-9-702 (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).    The  Commission  and  the  Appellate  Courts have \nexpressed  a  preference  for  dismissals without  prejudice.   See Pr  ofessional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \n\nSCOTT – H102239 \n \n7 \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\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. H102239 SANDRA K. SCOTT, EMPLOYEE CLAIMANT ARK. ENT. FOR THE DEV. DISABLED, SELF-INSURED EMPLOYER RESPONDENT RISK MGMT. RESOURCES, THIRD-PARTY ADMR. RESPONDENT OPINION FILED FEBUARY 9, 2024 Hearing before Administrative Law Judge O. Milton Fine II on February...","fetched_at":"2026-05-19T22:57:16.504Z","links":{"html":"/opinions/alj-H102239-2024-02-09","pdf":"https://labor.arkansas.gov/wp-content/uploads/Scott_Sandra_H102239_20240209.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}