{"id":"alj-H205230-2024-05-02","awcc_number":"H205230","decision_date":"2024-05-02","opinion_type":"alj","claimant_name":"Samantha Ballard","employer_name":null,"title":"BALLARD VS. UNITED PARCEL SERVICE (UPS), INC.AWCC# H205230May 2, 2024","outcome":"dismissed","outcome_keywords":["dismissed:1","denied:1"],"injury_keywords":["back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/BALLARD_SAMANTHA_H205230_20240502.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BALLARD_SAMANTHA_H205230_20240502.pdf","text_length":12723,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H205230 \n \nSAMANTHA R. BALLARD, \nEMPLOYEE                                                                                                              CLAIMANT \n \nUNITED PARCEL SERVICE (UPS), INC., \nEMPLOYER                                                                                                         RESPONDENT  \n                                 \nLIBERTY MUTUAL INS. CORP./ \nLIBERTY MUTUAL GROUP \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION AND ORDER FILED MAY 2, 2024, DENYING RESPONDENTS’ MOTION \nTO DISMISS WITH OR WITHOUT PREJUDICE \nAND \nORDER FILED MAY 2, 2024, AMENDING MARCH 12, 2024, ORDER TO COMPEL \nDISCOVERY TO EXTEND THE DEADLINE BY WHICH THE CLAIMANT SHALL \nRESPOND TO THE RESPONDENTS’ OUTSTANDING DISCOVERY REQUESTS  \n \nHearing conducted on Tuesday, April 30, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Ms. Samantha R. Ballard, pro se, Bradford, White County, Arkansas, appeared at \nthe hearing. \n \nThe respondents were represented by the Honorable David C. Jones, Newkirk & Jones, Little \nRock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n A  hearing was  conducted  on Tuesday, April  30,  2024, to  determine  whether this  claim \nshould be dismissed without prejudice for lack of prosecution pursuant to Ark. Code Ann. § 11-9-\n702(a)(4)  (2024 Lexis Replacement)  and  Commission Rule  099.13  (2024 Lexis Replacement), \nand/or with prejudice for the claimant’s alleged unjustified refusal to respond to the respondents’ \noutstanding discovery requests. The record herein consists of the reporter’s hearing transcript, as \nwell as any and all exhibits contained therein and attached thereto.  \n\nSamantha R. Ballard, AWCC No. 205230 \n \n2 \n \n As even a cursory review of the record clearly reveals, this claim has been the subject of \nsome confusion as to exactly when the claimant may or may not have been represented by counsel; \nsome apparent “good faith” miscommunication between the claimant and a couple of attorneys \nwith whom she had visited about representing her in this claim; as well as multiple MTDs and, \nfinally, some degree of apparent, understandable misunderstanding on the pro se claimant’s part \nconcerning responding to the respondents’ routine, fair, and reasonable discovery requests, which \nthey had propounded at least as early as on or about August 17, 2022. The alleged date of injury \nis June 8, 2022. (See generally, Respondents’ Exhibit 1; see, more specifically, RX1 at 13-22; 25-\n61). \n The respondents filed their initial thorough, well-written MTD and brief in support thereof \nwith the Commission on July 13, 2023, requesting this claim be dismissed without prejudice for \nlack  of  prosecution (RX1  at  25-38). At  that  time because  of  the  ongoing  issues  concerning \ndiscovery and related matters, the ALJ did not schedule a hearing on the respondents’ initial MTD, \nbut held a  decision  on it in abeyance to provide the parties’ time to clarify and/or resolve the \naforementioned  outstanding  issues.  The  ALJ returned the file back to the Commission’s open \nGeneral Files (RX1).  \n On or about February 14, 2024, the respondents filed a renewed MTD without prejudice, \nmotion to compel discovery, and brief in support of both motions. (RX1 at 43-58). After having \ngiven the parties additional time to respond to one another’s legal and factual arguments, the ALJ \nsigned and filed an order to compel discovery signed March 12, 2024. (RX1 at 59-61; 62-65). By \nthat  time  it  had  become  apparent  the pro  se claimant had  not – at  least as  of that  time period –  \ntaken the appropriate steps to formally and legally retain her attorney, the Honorable Gary Davis, \nof the  Davis Law  Firm,  in Little Rock, Pulaski County, Arkansas. Much to his credit, Attorney \n\nSamantha R. Ballard, AWCC No. 205230 \n \n3 \n \nDavis had been diligently attempting to contact the claimant for some time despite the fact he did \nnot  formally  represent  her. Attorney  Davis  explained during  the  course  of  a  prehearing \nteleconference the  claimant  failed  and/or  refused  to  respond  to  any  and  all  of  his  attempts  to \ncommunicate  with  her.  Of  course,  the  respondents  had  been  forwarding  any  and  all  of  their \ncommunications, discovery requests,  and  other  relevant  documents  to  the  claimant  at  her  last \nknown address on record with the Commission, as well as sending “courtesy copies” of any and \nall such documents to Attorney Davis. (RX1).  \n Following the respondents’ attorneys’ renewed request for a hearing on his MTD, a hearing \nwas scheduled on the respondents’ renewed motion and any and all related issues related thereto, \nwhich hearing was held on Tuesday, April 30, 2024. The Commission mailed the hearing notice \nto  the  claimant  pursuant  to  the  applicable  Arkansas  law,  which  she  received  on  April  8,  2024. \n(Commission Exhibit 1).  \n The Tuesday, April 30, 2024, hearing was scheduled to begin at 11 a.m.; however, as is the \nALJ’s standard practice he waited a period of time after the scheduled time to ensure the claimant \nhad plenty of time to appear at the hearing. At approximately 11:13 a.m., the claimant did in fact \nappear at the hearing. She apologized for being late, explaining she had some difficulty locating \nthe  Commission  offices.  The  ALJ  provided  the  claimant  and  the  respondents’  attorney  an \nadditional period of time to visit prior to hearing arguments and taking testimony at the hearing. \n(Hearing Transcript).  \n Thereafter, at approximately 11:35 a.m., the hearing commenced on the record; the ALJ \nadministered the oath to the claimant; the respondents’ attorney presented his MTD, requesting \nthat the claim be dismissed with or without prejudice for the reasons stated in his motion and brief \nin support thereof, or that the ALJ hold a ruling on the motion in abeyance pending the claimant’s \n\nSamantha R. Ballard, AWCC No. 205230 \n \n4 \n \nfull  compliance  with  the  respondents’  discovery  requests,  and  as  ordered  in  the  ALJ’s \naforementioned  order  to  compel  discovery.  The  respondents’  attorney  further  explained  his \nreasons and rationale for these requests in his oral presentation of the MTD and related matters. \nThe respondents’ attorney further requested that since the claimant still had not complied with the \nALJ’s order to compel, regardless of what decision the ALJ made on the respondents’ MTD, the \nALJ should amend his prior order to compel, and ensure the claimant’s compliance with the order \nby a date certain. (Hearing Transcript). \n The claimant apologized for her lack of understanding of the process. She testified it was \nher  understanding she  was  represented  by  counsel,  but  readily  and  honestly  conceded  she  may \nhave been mistaken in this regard. She testified she believed she had signed and dated a medical \nrecords release and provided it to Attorney Davis’s office, but she was not totally sure about this. \nThe claimant also testified she believed she had provided all relevant medical records to Attorney \nDavis’s office but, again, she freely and candidly admitted she could not be certain about this. The \nclaimant    testified    she    had    not    yet    answered  the  respondents’  written  discovery \nrequests/interrogatories because she had some work-related questions and concerns for which she \nwanted/needed legal advice, and she did not really understand all of the questions, how to respond \nto them, etc. (Hearing Transcript).  \n At the conclusion of the hearing the claimant testified she would like to speak to one of the \nCommission’s legal advisors immediately following the hearing. (She did so immediately after the \nhearing). She also testified she wanted to and intended to retain Attorney Gary Davis as her counsel \nin this matter, and that she intended to meet with him in person at his office immediately following \nher meeting with a Commission legal advisor. (Hearing Transcript). (Later in the day following \nthe  April  30,  2024,  hearing, Mr. Davis advised both the ALJ and the respondents’ attorney via \n\nSamantha R. Ballard, AWCC No. 205230 \n \n5 \n \nemail that he had in fact agreed to represent the claimant; he formally entered his appearance in \nthe claim; and he made a hearing request on specific issues.)       \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4) (2022 Lexis Repl.), as well as our court \nof appeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark.  App. 379, 192 S.W.3d \n287 (Ark. App. 2004), the Commission scheduled and conducted  a hearing on the respondents’ \nrenewed MTD with or without prejudice, as well as his oral request at the hearing that the ALJ \namend  the  order  to  compel  discovery  in  order  to  ensure  the  claimant’s  timely  compliance \ntherewith.  \n           Rather than recite a detailed analysis of the record, suffice it to say the preponderance of \nthe evidence introduced at the hearing, contained in the record, and known to the ALJ reveals the \nclaimant has now hired an attorney and requested a hearing on specific issues. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. The pro  se claimant  appeared  personally  at  the  hearing,  and  provided  reasonable, \ncredible responses to both the respondents’ attorney’s and the ALJ’s questions. She \nexplained  why  and sincerely  apologized  for  having  been  unresponsive  to  both  the \nrespondents and the Commission concerning her claim which, in essence, she attributed \nto her confusion as to whether she was in fact represented by counsel, and her lack of \na total understanding of the workers’ compensation process, and the  protections  for \nclaimants who file claims.  \n \n3. In addition, the claimant expressed the desire to prosecute her claim; has retained an \nattorney to assist her in doing so; and her attorney has requested a hearing on specific \nissues. Therefore, the respondents’ renewed MTD without or with prejudice hereby is \ndenied and dismissed. \n \n\nSamantha R. Ballard, AWCC No. 205230 \n \n6 \n \n4. Despite respondents’ counsel’s diligence, persistence, and patience, the claimant has to \ndate failed and/or refused to timely respond to the respondents’ routine, reasonable \ndiscovery requests. Moreover, while the claimant has credibly explained to the ALJ’s \nsatisfaction her subjective reasons therefore, still, she has to date failed and/or refused \nto comply with the Commission’s order to compel discovery filed March 12, 2024. \n \n5. Therefore, I herein incorporate by reference the ALJ’s March 12, 2024, order to compel \ndiscovery  as  set  forth  word-for-word  herein.  (Please  find  attached  as “Exhibit  A” to \nthis opinion and order a file-marked copy of the previously executed and filed March \n12, 2024, order to compel discovery.) \n \n6. The  immediately  aforementioned  and  attached  order  to  compel  discovery hereby  is \namended only to the extent the claimant has 30 days from the date of the filing of this \nopinion – or until Monday, June 3, 2024 – to provide the respondents’ attorney with a \nsigned medical release, as well as her full and complete responses to the respondents’ \npreviously  propounded  interrogatories  and  requests  for  production  of documents. \nFailure to do so may result in sanctions and/or any and all other appropriate relief to \nwhich  the  respondents’  may  be  entitled  pursuant  to  the  Arkansas  Workers’ \nCompensation Act (the Act).  \n \n7. As  always,  both  parties  shall  cooperate  with  one  another  in  both  the discovery  and \nhearing process in accordance with all applicable Arkansas laws, rules, and regulations. \n \n8. The respondents shall pay the court reporter’s invoice within twenty (20) days of their \nreceipt hereof. \n \n IT IS SO ORDERED.                                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                  Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205230 SAMANTHA R. BALLARD, EMPLOYEE CLAIMANT UNITED PARCEL SERVICE (UPS), INC., EMPLOYER RESPONDENT LIBERTY MUTUAL INS. CORP./ LIBERTY MUTUAL GROUP INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED MAY 2, 2024, DENYING RESPONDENTS’ MOTION TO DISMIS...","fetched_at":"2026-05-19T22:53:38.894Z","links":{"html":"/opinions/alj-H205230-2024-05-02","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/BALLARD_SAMANTHA_H205230_20240502.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}