{"id":"alj-H205999-2023-12-04","awcc_number":"H205999","decision_date":"2023-12-04","opinion_type":"alj","claimant_name":"Helen Peaster","employer_name":"City Of Little Rock","title":"PEASTER VS. CITY OF LITTLE ROCK AWCC# H205999 DECEMBER 4, 2023","outcome":"dismissed","outcome_keywords":["dismissed:6","granted:1"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Peaster_Helen_H205999_20231204.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Peaster_Helen_H205999_20231204.pdf","text_length":8295,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H205999 \n \n \nHELEN D. PEASTER, EMPLOYEE CLAIMANT \n \nCITY OF LITTLE ROCK, \n SELF-INSURED EMPLOYER RESPONDENT \n \nRISK MGMT. RESOURCES, \n THIRD-PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED DECEMBER 4, 2023 \n \nHearing before Administrative Law Judge O. Milton Fine II on November 29, 2023, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \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.    Claimant  gave  testimony  at  the  hearing.    The  evidentiary  record \nconsists  not  only  of  that  testimony,  but  also  of  Commission’s  Exhibit  1,  forms, \npleadings,  and  correspondence  related  to  this  claim,  consisting  of  12  numbered \npages; and Respondents’ Exhibit 1, forms, pleadings, and correspondence related \nto this claim, consisting of one index page and 16 numbered pages thereafter. \n The record reflects the following procedural history:  Per the First Report of \nInjury or Illness filed on  August 25, 2022, Claimant  suffered  an injury  to her right \nelbow  on  April  13,  2022,  while  using  a  sledgehammer  at  work.    As  they \nacknowledged at the hearing, Respondents accepted the claim as a medical-only \n\nPEASTER – H205999 \n \n2 \none  and  paid  benefits  pursuant  thereto.   On  August  22,  2022,  Claimant  filed  a \nForm AR-C  in  connection  with  this  matter.    Therein,  she  requested  temporary \npartial,  temporary  total,  and  permanent  partial  disability  benefits,  along  with \npayment of medical expenses. \n Also  on  August  22,  2022,  Claimant  requested  a  one-time  change  of \nphysician  to  Dr.  Brian  Norton.    In  an  order  entered  on  September  26,  2022,  the \nMedical Cost Containment Division granted the request and scheduled her for an \nappointment with Norton for October 5, 2022. \n Respondents on September  20,  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 \nSeptember  21,  2023,  asking  for  a  response  to  the  motion  within 20  days.    The \nletter was sent via first-class and certified mail to the address for Claimant listed in \nthe  file.    Someone  with  an  illegible  signature  signed  for  the  letter  on  September \n26,  2023;  and  the  first-class  letter  was  not  returned.    Nonetheless,  no  response \nfrom Claimant was forthcoming. \n On  October  12,  2023,  I  scheduled  a  hearing  on  the  Motion  to  Dismiss  for \nNovember 29, 2023, at 11:00 a.m. at the Commission in Little Rock.  The Notice \nof Hearing was sent to the parties by first-class and certified mail; and as alluded \nto above, both appeared before me at the appointed time.  I note that the certified \nmail  receipt  for  Claimant,  dated  October  17,  2023,  bears  a  similar  illegible \n\nPEASTER – H205999 \n \n3 \nsignature to the one for the 20-day letter; and she confirmed receipt of the hearing \nnotice.  Respondents asked for dismissal of the claim without prejudice under Ark. \nCode Ann. § 11-9-702(d) (Repl. 2012) and AWCC R. 099.13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this claim. \n2. The parties  were  provided  reasonable  notice  of  the   Motion  to \nDismiss and of the hearing thereon under AWCC R. 099.13. \n3. The Commission is authorized to dismiss claims lacking a justiciable \nissue pursuant to AWCC R. 099.13. \n4. This  claim  should  be,  and  hereby  is,  dismissed without  prejudice \npursuant  to  AWCC  R.  099.13  because  of  the  lack  of  a  justiciable \nissue. \n5. Because of  the above  finding,  Ark.  Code  Ann. § 11-9-702(d)  (Repl. \n2012) will not be addressed. \nIII.  DISCUSSION \n Arkansas Code Annotated § 11-9-702(d) (Repl. 2012) provides as follows: \n \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation,  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim  may,  upon  motion  and  after \n\nPEASTER – H205999 \n \n4 \nhearing,  if  necessary,  be  dismissed  without  prejudice  to  the  refiling \nof the claim within the limitation period specified in subsection (b) of \nthis section. \n \nIn addition, AWCC R. 099.13 provides in relevant part: \n \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 The  Arkansas  Court  of  Appeals  in Johnson  held  that  a  claim  could  be \ndismissed  for  lack  of  prosecution  based  on  the  fact  that  there  is  no  justiciable \nissue.    The  authority  for  doing  so  comes  under  Rule  13,  which  the  Commission \npromulgated  under  Ark.  Code  Ann.  §  11-9-205(a)(1)(A)  (Repl.  2012).    This \nprovision  authorizes it  “[t]o  make  such  rules  and  regulations  as  may  be  found \nnecessary[.]”  See Dura Craft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d \n562  (1969); Johnson, supra.   Contra  Dillard v.  Benton  Cty.  Sheriff’s  Off.,  87 Ark. \nApp. 379, 192 S.W.3d 287 (2004)(“Rule 13 . . . allows a dismissal . . . pursuant to \nArk.  Code  Ann.  §  11-9-702(b)(4),  the  portion  of  the  statute  relating  to  additional \nbenefits”).    Certainly,  such  a  claim  could  be  re-filed  if  a  justiciable  issue  arises, \nprovided that all other prerequisites for a cognizable claim are met. \n At  the  hearing,  Claimant  during  her  testimony  conceded  that  there  are  no \njusticiable  issues at  present  regarding  this  claim.    More  importantly,  she  testified \n\nPEASTER – H205999 \n \n5 \nthat she has received all benefits that she was seeking under the claim and does \nnot object to its dismissal. \n I credit Claimant’s testimony.  Under Johnson, supra, this claim should thus \nbe dismissed under Rule 13 due to the lack of ripeness.  Because of this finding, it \nis unnecessary to address the application of § 11-9-702(d). \n That, however, leaves the question of whether the dismissal should be with \nor without prejudice.  The Commission possesses the authority to dismiss claims \nwith  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co.,  23  Ark. App.  137,  744 \nS.W.2d  402  (1988).    This  includes  claims  dismissed  under  Rule  13.   Johnson, \nsupra.  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS 5 10, the Commission \nwrote:    “In  numerous  past  decisions,  this  Commission  and  the  Appellate  Courts \nhave   expressed   a   preference   for   dismissals   without   prejudice.”      (citing \nProfessional  Adjustment  Bureau  v.  Strong,  75  Ark. 249, 629  S.W.2d  284  (1982); \nHutchinson  v.  North  Arkansas  Foundry,  Claim  No.  D902143  (Full  Commission \nOpinion  filed  October  23,  1991)).    In  light  of  this  preference,  along  with  facts  of \nthis case and Respondents’ agreement that dismissal should be without prejudice, \nthe dismissal of this claim is hereby without prejudice.\n1\n \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). \n \n\nPEASTER – H205999 \n \n6 \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove,  the  Motion  to  Dismiss  is  hereby  granted,  and  this  claim  is  hereby \ndismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H205999 HELEN D. PEASTER, EMPLOYEE CLAIMANT CITY OF LITTLE ROCK, SELF-INSURED EMPLOYER RESPONDENT RISK MGMT. RESOURCES, THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED DECEMBER 4, 2023 Hearing before Administrative Law Judge O. Milton Fine II on November 2...","fetched_at":"2026-05-19T22:59:01.171Z","links":{"html":"/opinions/alj-H205999-2023-12-04","pdf":"https://labor.arkansas.gov/wp-content/uploads/Peaster_Helen_H205999_20231204.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}