{"id":"alj-H204677-2024-07-19","awcc_number":"H204677","decision_date":"2024-07-19","opinion_type":"alj","claimant_name":"Natasha Onick","employer_name":null,"title":"ONICK VS. JACKSONVILLE SCHOOL DISTRICTAWCC# H204677July 19, 2024","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:1","denied:3"],"injury_keywords":["back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/ONICK_NATASHA_H204677_20240719.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ONICK_NATASHA_H204677_20240719.pdf","text_length":9107,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H204677 \n \nNATASHA ONICK, EMPLOYEE        CLAIMANT \n \nJACKSONVILLE SCHOOL DISTRICT,  \nSELF-INSURED EMPLOYER                   RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOC.,  \nTHIRD PARTY ADMINISTRATOR           RESPONDENT \n  \n \n \nOPINION FILED 19 JULY 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 24 April 2024 in Little Rock, Arkansas. \n \nMr. Gary Davis, the Davis Law Firm, appeared on behalf of the claimant. \n \nMs. Melissa Wood, Worley, Wood & Parrish, appeared on behalf of the respondents. \n \nSTATEMENT OF THE CASE \n \n A Motion to Dismiss was filed in this matter by the respondents on 19 March 2024, \nand a hearing on that motion was held in Little Rock, Arkansas, on 24 April 2024. In their \nmotion, the respondents argued that this claim should be dismissed for the claimant’s \nalleged failure to prosecute her claim under AWCC Rule 099.13 (Rule 13). The claimant \nwas represented by Mr. Gary Davis, and the respondents were represented by Ms. Melissa \nWood. The record consists of the hearing’s transcript, along with the respondents’ Exhibit \nNo 1 (an index page and ten subsequent pages of forms, pleadings, and correspondence) and \nthe parties’ post-hearing briefs, which I have blue-backed to this Opinion.  \nPROCEDURAL HISOTRY \n This claim arose from a workplace injury sustained on 24 September 2021. The \nclaim was accepted by the respondents, according to a Form AR-2 dated 8 July 2022, as a \n\nN. ONICK- H204677 \n2 \n \nmedical-only claim. [Resp. Ex. No 1.] The parties do not dispute the dates of other relevant \nfilings in this matter that were discussed at the hearing as relevant to the motion, but not \nmade part of the record. It is not disputed that a Full Hearing before Chief Administrative \nLaw Judge (CALJ) O. Milton Fine II was held on 24 May 2023. The issues addressed in that \nhearing included whether the claimant was entitled to temporary total disability, \nadditional medical benefits, and attorney’s fees; all other issues were reserved. The CALJ \nissued his Opinion on 22 August 2023, finding that the claimant was entitled to additional \nmedical benefits, but that she had not met her burden on her other claims.  \n The claimant appealed the findings unfavorable to her to the AWCC Full \nCommission on 11 September 2023, and the Full Commission issued its Opinion on \naffirming and adopting the ALJ’s Opinion on 8 February 2024. Then, on 19 March 2024, the \nrespondents filed the immediate motion. The claimant objected to the dismissal via email \ncorrespondence the following day. The respondents replied, noting (1) that their motion was \nbrought under Rule 13 (and not under ACA § 11-9-702), (2) that Rule 13 did not require \nthem to wait until six months after the filing of the Commission’s Opinion before seeking a \ndismissal, and (3) that they were requesting a hearing on their motion. [Resp. Ex. No 1.] A \nhearing was then coordinated, and notice was sent to all parties, accordingly. \nARGUMENT AT THE HEARING \nAt the hearing on their motion, the respondents noted that this claim had already \nproceeded through a hearing before an ALJ and that the CALJ’s Opinion was affirmed and \nadopted by the Full Commission. They argued that as the age of this claim is nearing four \nyears from the date of injury— “anything left to litigate, that should be done by now.” [TR \nat 6.] The claimant objected to a dismissal of this claim. She argued that the respondents’ \nmotion was “filed with all due haste” and noted that while some benefits were addressed in \nthe earlier litigation, other potential issues remained.  \n\nN. ONICK- H204677 \n3 \n \nMr. Davis:  Ms. Wood queries why is it that these other issues have not been \nlitigated. Well, we litigated an issue of some temporary disability, and we \nlitigated an issue of some medical treatment. We have not litigated all other \nissues that are reserved by virtue of the claim filing. That would be wage \nloss, disability, vocational rehabilitation, change of physician, et cetera. \n \nJudge Howe:  And I’ll note for the record, if I can interrupt there, that Judge \nFine’s August 22\nnd\n Opinion does say on page 2 that all other issues have been \nreserved. \n \nMr. Davis:  Correct. We just haven’t had an opportunity, Your Honor. This \nlast Opinion just became final and you can’t litigate while you’re waiting on \nan appeal to be finished out.... \n \n[TR at 7.] \nThe claimant went on to state that she was requesting a hearing on her entitlement \nto a change of physician, an issue that was not part of the earlier litigation. [TR at 14, 15.] \nThe respondents acknowledged that the claimant “did prosecute some of the claims made \non the Form C, but certainly has not prosecuted most of them.” [TR at 16.] \nThe parties went back-and-forth on the policy implications and the benefits or the \ndetriments associated with piecemeal litigation processes, with the respondents \nsummarizing, in part, their overarching position in saying, “[we] understand that the \nCommission can reserve issues, but here we are, a dismissal request has been made. If \nthere’s something to litigate, then, request a hearing, we’ll start the prehearing process.” \n[TR at 23.]  \nBoth parties then indicated that they intended to file post-hearing briefs. Those \nbriefs, which were due within fourteen (14) days of the hearing date and timely received by \nthe Commission, are blue-backed to this Opinion. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Having reviewed the record as a whole, and having heard the arguments of counsel \non the merits of the immediate motion, I make the following findings of fact and conclusions  \n \n\nN. ONICK- H204677 \n4 \n \nof law, consistent with ACA § 11-9-704: \n1. The Arkansas Workers’ Compensation Commission has proper jurisdiction \nover this claim. \n \n2. Consistent with Rule 13, the parties received notice of the hearing on the \nMotion to Dismiss. \n \n3. Forty (40) days passed between the Full Commission’s Opinion and the filing \nof the respondents’ motion. \n \n4. The claimant reserved her right to litigate additional issues not addressed at \nthe May 2023 hearing, and she now seeks a hearing, in furtherance of her \nrights under her claim, on a change of physician.   \n \n5. The respondents failed to prove by a preponderance of the evidence that this \nclaim should be dismissed for want of prosecution under Rule 13. \n \n 6. The respondents’ motion is, therefore, denied. \nADJUDICATION \n AWCC Rule 13, in pertinent part, states: \nUpon meritorious application to the Commission from either party in an \naction pending before the Commission, requesting that the claim be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice to all parties, enter an order dismissing the claim for want of \nprosecution. \n \nIn Johnson v. Triple T Foods, 55 Ark. App. 83, 929 S.W.2d 730, 1996 Ark. App. LEXIS 628, \nour Court of Appeals stated, \nThe Commission has the authority, under ACA § 11-9-205(a)(1)(A) (Repl. \n1996), to make such rules and regulations as may be found necessary. Under \nthis authority, the Commission has promulgated its Rule 13, which provides \nthat if a party requests that a claim be dismissed for want of prosecution, the \nCommission may dismiss the claim. \n \nIt is under this Rule and authority that the respondents seek a dismissal of Ms. \nOnick’s claim. I do not find, however, that the preponderance of the evidence supports a \nfinding that Ms. Onick has failed to prosecute her claim. \nThis case is clearly distinguishable from Johnson, supra, where the Court approved \nof the Commission exercising its discretion to dismiss a claim under Rule 13. In that case, \n\nN. ONICK- H204677 \n5 \n \n“there had been no showing of any unresolved issues,” and the claimant acknowledged that \n“he was receiving, or had received, all benefits that he was entitled to receive.” Id. Its \nhistory also involved a refiling of a claim that laid dormant between October of 1993 and \nJuly of 1994. \nThe claim before me frames up quite differently. A hearing was held in May of 2023, \nand an ALJ’s Opinion was issued in August of 2023. The claimant took an appeal of that \ndecision to the Full Commission in September of 2023. The Full Commission entered its \nOpinion on 8 February 2024, and the respondents’ motion followed just 40 days later. The \nclaimant noted several potential issues of entitlement that are not yet resolved and \nrequested a hearing on a change of physician at the hearing on the immediate motion. I \ncannot find, against that backdrop, that the claimant has failed to prosecute her claim. \nThat she did not seek a hearing or perform some other overt “prosecutorial action” inside \nthose 40 days between the Full Commission’s entry of its Opinion and the filing of the \nrespondents’ motion should not prove fatal to the continuance of her claim. \nORDER \n For the reasons noted above, the respondents’ motion to dismiss this claim is \nDENIED. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H204677 NATASHA ONICK, EMPLOYEE CLAIMANT JACKSONVILLE SCHOOL DISTRICT, SELF-INSURED EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED 19 JULY 2024 Heard before Arkansas Workers’ Compensation Commission ...","fetched_at":"2026-05-19T22:51:43.421Z","links":{"html":"/opinions/alj-H204677-2024-07-19","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/ONICK_NATASHA_H204677_20240719.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}