{"id":"alj-H204558-2024-08-20","awcc_number":"H204558","decision_date":"2024-08-20","opinion_type":"alj","claimant_name":"Vincent Walker","employer_name":"Greenwood School Maintenance","title":"WALKER VS. GREENWOOD SCHOOL MAINTENANCE AWCC# H204558 August 20, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","denied:1"],"injury_keywords":["shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/WALKER_VINCENT_H204558_20240820.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WALKER_VINCENT_H204558_20240820.pdf","text_length":13211,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H204558 \n \nVINCENT WALKER, Employee      CLAIMANT \n \nGREENWOOD SCHOOL MAINTENANCE, Employer  RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSN., Carrier/TPA    RESPONDENT \n \n \n OPINION FILED AUGUST 20, 2024  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondent represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n The claimant in this matter is a 62-year-old male who sustained compensable injuries to \nhis shoulders bilaterally, ribs, and right thumb on June 16, 2022, when he fell from a ladder. On \nthat same day a form AR-N was signed by the claimant. The claimant hired an attorney and on \nJune 21, 2023, a form AR-C was signed by the claimant. The claimant’s AR-C was file-marked \nby the Commission on July 24, 2023, and requested, among other benefits, additional temporary \ntotal disability and additional medical treatment. The claimant’s AR-C is found at Respondents’ \nExhibit 1, page 5.  \n A prehearing conference was conducted on September 11, 2023, with this administrative \nlaw judge. A prehearing order was issued as a result of that prehearing conference on September \n12, 2023. Following are portions of that prehearing order: \n\nWalker – H204558 \n \n-2- \nBy   agreement   of   the   parties   the   following   stipulations   were \nsubmitted to the Commission for its consideration: \n \n1. The Arkansas Workers' Compensation \nCommission has jurisdiction of this claim. \n2. The  relationship  of  employee-employer-carrier \nexisted between the parties on June 16, 2022. \n3.  The  claimant  sustained  a  compensable  injury  to \nhis  bilateral  shoulders,  ribs,  and  right  thumb  on  or \nabout June 16, 2022. \n4. The claimant’s weekly compensation rates will \nbe determined at a later date. \n \nBy agreement of the parties the issues to litigate are limited to the \nfollowing: \n \n1. Whether Claimant is entitled to \ncontinued/additional    medical    treatment    for    his \ncompensable left shoulder injury. \n2.  Whether  Claimant  is  entitled  to  temporary  total \ndisability   benefits   from   January   24,   2023,   to \nFebruary 8, 2023. \n3.  Whether  Claimant’s  attorney  is  entitled  to  an \nattorney fee. \n \nThe claimant's contentions are as follows: \n“a.   The   Claimant   contends   that   the   incident \ninvolving the claimant falling off of a bucket is not \nan  independent  intervening  event  that  caused  new \ninjury to  the  claimant’s  left  shoulder. Rather,  the \nclaimant   contends   that   his   shoulder   was   still \nsymptomatic,   he   was   still   under   active   medical \ntreatment  and  that  any  trauma  that  occurred  to  his \nshoulder  in  regard  to  the  bucket  incident  was  not \nsufficient to cause a new injury to his left shoulder. \n \nb.  The  Claimant  contends  that  he  is  entitled  to \ntemporary total disability benefits from January  24, \n2023   through   February   8,   2023   and   reasonably \nnecessary   medical   treatment   regarding   his   left \nshoulder. \n \nc.   The   Claimant   contends   that   his   attorney   is \nentitled to an appropriate attorney’s fee regarding \n\nWalker – H204558 \n \n-3- \nany  disability  benefits  due  the  claimant  regarding \nhis left shoulder injury. \n \nd.  The  Claimant  contends  that  he  has  sustained \npermanent  impairment  regarding  his  left  shoulder \nbut   that   it   is   premature   to   address   that   issue. \nAccordingly,   the   claimant   reserves   the   issue   of \npermanent  impairment/disability  and  contends  that \nhe  is  entitled  to  additional  compensation  regarding \nthat  issue  at  some  point  in  the  future  and  that \ntherefore that issue is preserved.” \n \nThe respondents’ contentions are as follows: \n“Respondents  contend  that  all  appropriate  benefits \nhave   been   and   are   being   paid   with   regard   to \nClaimant’s   injuries   sustained   on   6/16/22. \nClaimant’s  current  need  for  treatment  for his  left \nshoulder is due to a new injury sustained at home.” \n \nAs  a  result  of  the  prehearing  conference,  a  hearing  was  set  for  November  16,  2023,  in  Fort \nSmith,  Arkansas. On November 8, 2023, the claimant’s attorney sent a letter by  email to  the \nCommission requesting the hearing be cancelled so that he could take the deposition of Dr. Terry \nClark. \n On December 14, 2023, the claimant deposed Dr. Clark regarding a letter he wrote about \nthe claimant’s condition. Thereafter, on January  29, 2024, this administrative law judge entered \nthe Agreed Order that the parties requested. Following is a portion of that Agreed Order: \n1. Per  the  Prehearing  Order  entered  on  September  12,  2023, \nClaimant   currently   has   a   claim   pending   before   the   Arkansas \nWorker’s  Compensation  Commission  concerning:  “1.  Whether \nClaimant  is  entitled  to  continued/additional  medical  treatment  for \nhis  compensable  left  shoulder  injury.  2.  Whether  Claimant  is \nentitled  to  temporary  total  disability  benefits  from  January  24, \n2023,  to  February  8,  2023.  3.  Whether  Claimant’s  attorney  is \nentitled to an attorney fee.” \n \n\nWalker – H204558 \n \n-4- \n2.  The  parties  have  reached  an  agreement  thereby  alleviating  the \nneed  for  a  decision  from  the  Commission  on  the  aforementioned \nissues. \n \n3. Respondents have requested proper billing forms from Dr. Greg \nJones’ office concerning the surgery he performed on Claimant’s \nleft shoulder on January 24, 2023. Payment will be made pursuant \nto the Arkansas fee schedule. Respondents have also requested that \nClaimant  provide  any  out-of-pocket  expenses  associated  with  the \nsurgery and follow up care. \n \n4.  Respondents  have  requested  Claimant’s  post-injury  wages  to \npay the appropriate temporary disability benefits and the attorney’s \nfee.   Payment   will   be   made   promptly   upon   receipt   of   this \ndocumentation. \n \n On February 13, 2024, another Agreed Order was issued by this administrative law judge. \nFollowing is a portion of that order: \n1. Claimant  underwent  left  shoulder  surgery  with  Dr.  Greg  Jones \non  January  24,  2023,  and  an  Agreed  Order  has  previously  been \nentered  concerning  his  entitlement  to  the  medical  treatment  and \ntemporary disability benefits associated with the same. \n \n2. A permanent impairment rating has not been assigned associated \nwith the left shoulder surgery performed on January 24, 2023, but \nthe parties have reached an agreement thereby alleviating the need \nfor a decision from the Commission on this issue. \n \n3.  Respondents  mutually  agree  and  stipulate  to  Claimant’s \nentitlement to an 8% rating to the body as a whole. \n \n4. Upon entry of this Order, Respondents shall make the following \npayments to Claimant, Vincent Walker, and his attorney, Eddie H. \nWalker, Jr.: \n \n$13,104.00 to Claimant \n$3,744.00 to Eddie H. Walker, Jr. \n \n5.  The  parties  jointly  agree  that  payment  as  outlined  above  fully \nand  finally  extinguishes  any  and  all  claims  Claimant  may  have  to \npermanent    partial    impairment    associated    with    the    surgery \nperformed on January 24, 2023. \n \n\nWalker – H204558 \n \n-5- \n The  respondent  filed  a Motion  to  Dismiss  for  Failure  to  Prosecute,  which  is  the  matter \npresently before the Commission, on March 8, 2024, bringing that motion under both Arkansas \nWorkers’  Compensation  Commission  Rule 099.13  and  A.C.A. §11-9-702.  However,  at  the \nhearing  in  this  matter  on  May  23,  2024,  the  respondent  amended  the  motion  to  only  seek  a \ndismissal under Rule 099.13 as follows: \nMS.  WOOD:  Our  Motion  to  Dismiss  does  indicate  that  it  is \nseeking it under both Rule 13 and 11-9-702. I would like to amend \nthat  and  just  seek  it  under Rule  13  and  to  acknowledge  that  a \nhearing  has  been  requested  previously.  However,  as  we  sit  here \ntoday, there is nothing before the Commission to address. There is \nno  hearing  request  that  has  been  made.  It  is  our  position  that  the \nfiling  of  a  Form  C  in  workers’  comp  is  the  equivalent  of  a \ncomplaint  in  Circuit  Court.  It  can’t  just  sit  there  forever \nindefinitely. If there is something to litigate, it needs to be done. It \nis  prejudicial  to  my  client  to  continue  to  keep  it  open.  Witnesses \ndisappear,  I mean there  are lots of reasons, but essentially if there \nis something to litigate, it should be done. \n \n On  April  8,  2024,  the  claimant’s  attorney  authored  the  following  letter  to  the \nCommission: \nThe  Claimant  hereby  files  a  claim  for  additional  compensation  in \nthe form of medical benefits. \n \nAlthough the Claimant sustained injury to both shoulders, he only \nunderwent surgery in regard to one shoulder. \n \nIt  is  believed  that  because  the  respondents  chose  to  controvert  the \nClaimant’s  entitlement  to  additional  medical  treatment  and \nindemnity  benefits  at  one  time  he  may  not  have  received  all  the \ntreatment  that  may  have  otherwise  enabled  him  to  have  a  fuller \nrecovery.  Therefore,  the  Claimant  contends  that  he  is  entitled  to \nreturn  to  Dr.  Greg  Jones  for  evaluation  of  both  shoulders  for  a \ndetermination  in  regard  to  whether  physical  therapy  would  likely \nimprove  the  strength  that  the  Claimant  has  lost  as  a  result  of  his \ncompensable injuries. \n \n\nWalker – H204558 \n \n-6- \nIf the respondents will authorize an appointment for Mr. Walker to \nreturn  to  Dr.  Jones,  it  of  course  would  be  premature  to  consider \ntheir Motion to Dismiss at this time. \n \nIf  the  respondents  will  not  authorize  Mr.  Walker  to  return  to  Dr. \nJones,  I  will  be  requesting  a  hearing  and  that  request  will  cause  it \nto be inappropriate to grant the respondent’s Motion to Dismiss. \n \nBy   copy   I   am   requesting   Ms.   Wood   to   advise   whether   the \nrespondents  will  authorize  the  Claimant  to  return  to  Dr.  Greg \nJones. \n \n On April 16, 2024, the respondent’s attorney authored a letter to the Commission in \nresponse to the claimant’s attorney’s April 8, 2024, letter as follows: \nI  am  in  receipt  of  Claimant’s  counsel’s  correspondence  to  you \ndated 4/8/24. My client has scheduled an appointment for Claimant \nto return to Dr. Greg Jones as requested by Claimant’s counsel. \nRespondents  continue  to  ask  for  a  dismissal  of  this  case.  It  is  our \nposition  that  the  providing  of  benefits  does  not  affect  whether  or \nnot the claim is being prosecuted by the claimant. \n \nRule 099.13 states: \nThe   Commission   may,   in   its   discretion,   postpone   or   recess \nhearings  at  the  instance  of  either  party  or  on  its  own  motion.  No \ncase  set  for  hearing  shall  be  postponed  except  by  approval  of  the \nCommission or Administrative Law Judge. \n \nIn  the  event  neither  party  appears  at  the  initial  hearing,  the  case \nmay  be  dismissed  by  the  Commission  or  Administrative  Law \nJudge, and such dismissal order will become final unless an appeal \nis  timely  taken  therefrom  for  a  proper  motion  to  reopen  is  filed \nwith  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon meritorious application to the Commission from either party \nin  an  action  pending  before  the  Commission,  requesting  that  the \nclaim be dismissed for want of prosecution, the Commission may, \nupon reasonable notice to all parties, enter an order dismissing the \nclaim for want of prosecution. (Effective March 1, 1982) \n \n\nWalker – H204558 \n \n-7- \n Rule 099.13 provides discretion in deciding whether a  case is to be dismissed in that its \ngiven language states “may” and not shall. This is not a case with a long and tortured history. \nThe claimant’s compensable injuries occurred roughly two years prior to the respondent’s filing \nof the motion to dismiss. In fact, the claimant had an appointment scheduled with his physician \nwithin  roughly  a  week  of  the  hearing  on  the motion  to dismiss  in  this  matter  regarding  his \ncompensable  injuries.  It  appears  to  this  administrative  law  judge  that  this  claimant  has  not \nignored  or  wasted  the  time  of  the  Commission  or  the  respondent,  but  instead,  has  actively \npursued  indemnity  and  medical  benefits  to  return  him  as  much  as  possible  to  his  preinjury \nfinancial and physical state and continues to do so. The respondents’ motion to dismiss is denied. \n ORDER \n Pursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny the \nmotion to dismiss filed by the respondents. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H204558 VINCENT WALKER, Employee CLAIMANT GREENWOOD SCHOOL MAINTENANCE, Employer RESPONDENT ARKANSAS SCHOOL BOARDS ASSN., Carrier/TPA RESPONDENT OPINION FILED AUGUST 20, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian Cou...","fetched_at":"2026-05-19T22:50:17.438Z","links":{"html":"/opinions/alj-H204558-2024-08-20","pdf":"https://labor.arkansas.gov/wp-content/uploads/WALKER_VINCENT_H204558_20240820.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}