{"id":"alj-H206637-2023-06-12","awcc_number":"H206637","decision_date":"2023-06-12","opinion_type":"alj","claimant_name":"Robin Ussery","employer_name":"My First School","title":"USSERY VS. MY FIRST SCHOOL AWCC# H206637 JUNE 12, 2023","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Ussery_Robin_H206637_20230612.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Ussery_Robin_H206637_20230612.pdf","text_length":8823,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H206637 \n \n \nROBIN USSERY, EMPLOYEE CLAIMANT \n \nMY FIRST SCHOOL, \nEMPLOYER RESPONDENT \n \nNAT’L SPECIALTY INS., \nCARRIER RESPONDENT \n \nSEDGWICK CLAIMS MGMT. SVCS., \nTHIRD PARTY ADMINISTRATOR RESPONDENT \n \n \n \nOPINION FILED JUNE 12, 2023 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  June  8,  2023,  in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant represented by Mr. James W. Stanley, Jr., Attorney at Law, Little Rock, \nArkansas (neither appearing). \n \nRespondents represented by Ms. Lauren Scroggins, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.  A hearing on the motion was conducted on  June 8, 2023, in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant failed to appear \nat the hearing; and her counsel waived his appearance.  .  The record consists of \nRespondents’  Exhibit  1,  the  Motion  to  Dismiss,  consisting  of  two  pages;  and \nRespondents’  Exhibit  2,  pleadings,  forms  and  correspondence  related  to  the \nclaim, consisting of eight pages.  In addition, without objection, the Commission’s \nfile has been incorporated herein in its entirety by reference. \n\nUSSERY – H206637 \n \n2 \n \n \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on September  15,  2022, \nClaimant  purportedly  injured her toes  at  work  on  August  19, 2022.    According  to \nthe Form AR-2 that was filed on September 15, 2022, Respondents accepted the \nclaim and paid medical and indemnity benefits pursuant thereto. \n On  September  22, 2022,  Claimant  filed  a  Form  AR-C,  requesting  initial \nbenefits  and  alleging  that  she  injured  her  left  foot  and  great  toe on  August  18, \n2022,  when  they  were  struck  by  the  door  of  a  metal  cooler  at  her  place  of \nemployment.    She  added  that  she  is  diabetic.    Accompanying  this filing  was  a \nhearing request, signed by Claimant’s counsel, on the issue of her entitlement to \ntemporary  total  disability  benefits.    In  response,  Crystal  Cox  with  the  respondent \nthird-party administrator emailed the Commission on September 26, 2022, stating \nthat their position had not changed. \n On  September  12,  2022,  Claimant’s  counsel  wrote  the  Commission, \nrequesting  a one-time  change  of  physician.    Notes  from  Susan  Washington  with \nthe Medical Cost Containment Division indicate that the request was not ultimately \nprocessed  because:    (1)  on  September  30, 2022,  she  was  informed  by  Cox  that \nClaimant  was  no  longer  represented;  and  (2)  as  of  October  13,  2022,  she  had \nbeen  unable  to  reach  Claimant  or  her  attorney  to  see  if  the  change  of physician \nwas still desired. \n\nUSSERY – H206637 \n \n3 \n \n \n Respondents’ counsel entered her appearance before the Commission on \nOctober  11,  2022.    On  October  25,  2022,  Claimant’s  counsel  wrote  her,  stating \nthat  his  client “no  longer  wishes  to  pursue  her  workers’  compensation  claim  as \nshe has returned to work.” \n The  record  reflects  that  no  further  activity  took  place  on  this  claim  until \nMarch 22, 2023, when  Respondents  filed the instant Motion to Dismiss and brief \nin support thereof.  Therein, they alleged that dismissal of the claim was called for \nunder AWCC R. 099.13 and Ark. Code Ann. § 11-9-702 because Claimant “ha[d] \ntaken  no  further  action  to  prosecute  this  claim” since her attorney’s October 25, \n2022,  letter.    The  file  was  assigned  to  me  on  March  23,  2023;  and  on  April  3, \n2023,  I  wrote  Claimant  and  her  counsel,  requesting  a  response  to  the  motion \nwithin  20  days.    The  letter  was  sent  to  Claimant  by  both  certified  and  first-class \nmail, and to her attorney by first-class mail.  The United States Postal Service was \nunable  to  verify  whether  Claimant  claimed  the  certified  letter;  but  the  first-class \nletters to her and her attorney were not returned.  Regardless, no response from \nforthcoming from either of them by the deadline. \n On May 9, 2023, I scheduled a hearing on the Motion to Dismiss for  June \n8, 2023, at 11:30 a.m. at the Commission in Little Rock.  The hearing notice was \nsent  not  only  to  the  attorneys  of  record,  but  to  Claimant.    She  signed  for  the \ncertified mail on May 11, 2023; and the first-class mail was not returned. \n\nUSSERY – H206637 \n \n4 \n \n \n On May 11, 2023, Claimant’s counsel wrote the Commission, stating: \nI  am  in  receipt  of  the  Notice  of  Hearing  on  the  Motion  to  Dismiss.  \nWe  are  not  opposed  to  the  granting  of  the  Motion  to  Dismiss.  \nTherefore,  neither  myself  nor  the  claimant,  Robin  Ussery,  will  be \npresent at the hearing. \n \n(Emphasis  in  original)    The  hearing  on  the  Motion  to  Dismiss  proceeded as \nscheduled  on June  8,  2023.  Both  Claimant  and  her  counsel  waived  their \nappearance; but, again, counsel has indicated no objection to a dismissal of this \nclaim.    Respondents  appeared  through  counsel  and  argued  for  dismissal  under \nthe aforementioned authorities. \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 \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the  Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby \ndismissed without prejudice under AWCC R. 099.13. \n\nUSSERY – H206637 \n \n5 \n \n \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 \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  prosecute  the  claim  because  she  has  taken  no  further \naction  in  pursuit  of it—including  appearing  at  the  June  8,  2023,  hearing  on  the \nMotion to Dismiss—since making her change-of-physician request on September \n12,  2022.    Thus,  the  evidence  preponderates  that  dismissal  is  warranted  under \nRule 13.  Because of this finding, it is unnecessary to address the applicability of \nArk. Code Ann. § 11-9-702 (Repl. 2012). \n\nUSSERY – H206637 \n \n6 \n \n \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).  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(Emphasis  added)(citing Professional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629  S.W.2d  284  (1982)).    Respondents  at  the  hearing  asked  for a  dismissal \nwithout  prejudice.    Based  on  the  above  authorities, I  agree  and  find  that  the \ndismissal of the claim should be and hereby is entered without prejudice. \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed 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. H206637 ROBIN USSERY, EMPLOYEE CLAIMANT MY FIRST SCHOOL, EMPLOYER RESPONDENT NAT’L SPECIALTY INS., CARRIER RESPONDENT SEDGWICK CLAIMS MGMT. SVCS., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE 12, 2023 Hearing before Administrative Law Judge O. Milt...","fetched_at":"2026-05-19T23:06:21.384Z","links":{"html":"/opinions/alj-H206637-2023-06-12","pdf":"https://labor.arkansas.gov/wp-content/uploads/Ussery_Robin_H206637_20230612.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}