{"id":"alj-H208114-2024-07-24","awcc_number":"H208114","decision_date":"2024-07-24","opinion_type":"alj","claimant_name":"Richard Clark","employer_name":null,"title":"CLARK VS. NESTLE US HOLDCO, INC.AWCC# H208114July 24, 2024","outcome":"dismissed","outcome_keywords":["dismissed:4","granted:3","denied:1"],"injury_keywords":["back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Clark_Richard_H208114_20240724.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Clark_Richard_H208114_20240724.pdf","text_length":16191,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H208114 \n \nRICHARD CLARK, \nEMPLOYEE CLAIMANT \n \nNESTLE US HOLDCO, INC., \nSELF-INSURED/EMPLOYER RESPONDENT \n \nINDEMNITY INS. CO. OF NORTH AMERICA, \nCARRIER RESPONDENT \n \nESIS, INC., \nTHIRD PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED JULY 24, 2024 \n \nHearing conducted on Wednesday, June 28, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Steven Porch, in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant, Mr. Richard Clark, represented himself pro se, Jonesboro, Arkansas, and did \nappear in person at the full hearing. \n \nThe Respondents were represented by the Honorable Michael Stiles, Little Rock, Arkansas. \n \nBACKGROUND \n This matter comes before the Commission originally for a full hearing on June 28, 2024. \nHowever, since Claimant would not prosecute his claim but instead left the courtroom without \npermission, Respondents made an oral Motion to Dismiss due to a lack of prosecution. A hearing \nwas conducted on this Motion on June 28, 2024, in Jonesboro, Arkansas. No testimony was \ntaken in the case. Admitted into evidence was Respondents’ Exhibit 1, medical records \nconsisting of 120 pages, Respondents’ Exhibit 2, Claimant’s criminal history, attendance \nrecords, wage records and other employment records consisting of 73 pages, Respondents’ \nExhibit 3, consisting of a video depicting Claimant at work. Respondents’ Exhibit 4, \nRespondents’ response to questionnaire consisting of five pages, and Respondents’ Exhibit 5, \n\nCLARK, AWCC No. H208114 \n \n2 \n \ncorrespondence and confirmation of discovery, consisting of six pages. I have also blue-backed \nForms AR-1, AR-2, September 6, 2023, Prehearing Order, Motion to Compel Order filed June \n18, 2024, Melanie Miller email dated June 28, 2024, Catherine Ferguson email dated June 28, \n2024, Melanie Miller email dated December 13, 2023, Melanie Miller email dated April 1, 2024, \nand Melanie Miller email dated September 7, 2023, as discussed infra. \nSTIPULATIONS \n By agreement of the parties, the full hearing stipulations applicable to this claim are as \nfollows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n2. An employer/employee/carrier relationship existed on November 5, 2022, \nwhen Claimant allegedly sustained a compensable injury to his low back. \n3. Respondents have denied and controverted this claim in its entirety and no \nbenefits have been paid. \n4. The parties will stipulate to Claimant average weekly wage and \ncompensation rates on or before the hearing date.\n1\n \nISSUE \nThe parties have identified the following issues to be adjudicated: \n1. Whether Claimant sustained compensable injuries to his low back on November 5, \n2022, by specific incident. \n \n \n1\n This issue, as well as all other issues, to be adjudicated for the full hearing were not \naddressed since Claimant left the proceedings without permission. \n\nCLARK, AWCC No. H208114 \n \n3 \n \n2. Whether Claimant is entitled to any reasonable and necessary medical treatment and \nrelated expenses, including mileage and out of pocket expenses. \n3. Whether Claimant is entitled to temporary total disability benefits from November 6, \n2022, to a date yet to be determined. \nAll other issues are reserved. \nCONTENTIONS \nClaimant’s Contentions: The Claimant contends that he is entitled to compensation for \nhis low back injury, reasonable and necessary medical treatment and related expenses, and \ntemporary total disability benefits. \nRespondents’ Contentions: Respondents contend the following: \n1. The Respondents contend the Claimant, who was hired on January 31, 2022, did not \nsustain a compensable injury to his low back on November 5, 2022, as defined by \nArkansas law. Accordingly, the Claimant is not entitled to any benefits whatsoever. \n2. The Respondents have denied and controverted this claim in its entirety; thus, the \nRespondents have not paid any benefits to or on behalf of the Claimant because of his \npurported low back injury. \n3. The Claimant’s supposed injury did not occur out of and during the course and scope \nof the Claimant’s employment for the Respondent/Employer. \n4. The Respondents respectfully contend that the Claimant was not involved in any \nspecific-incident type injury on or about November 5, 2022. \n5. The Claimant is not entitled to any benefits herein, as the Claimant’s need for medical \ntreatment, if any, is unrelated to the supposed injury the Claimant allegedly sustained \n\nCLARK, AWCC No. H208114 \n \n4 \n \non November 5, 2022. Instead, the Claimant’s current ailments and need for medical \ntreatment, if any, is related to an unrelated and/or pre-existing condition. \n6. In the alternative, if it is determined the Claimant sustained a compensable injury, \nthen the Respondents hereby request a setoff for all benefits paid by the Claimant’s \ngroup health carrier, all short-term disability benefits received by the Claimant, and \nall unemployment benefits received by the Claimant. \n7. The Respondents reserve the right to amend and supplement their contentions and \nposition after additional discovery has been completed. \nSTATEMENT OF FACTS \nThe Claimant allegedly injured his low back while working for Respondent/Employer on \nNovember 5, 2022. The Claimant allegedly was working at his station when he slipped on some \nwater on the floor but did not physically fall onto the floor. See Form AR-1, blue-backed. The \nslip itself is the alleged catalyst for the claimed back injury. \nA prehearing telephone conference took place on September 6, 2023. There the Claimant \nwanted to argue the merits of his claim. He was advised that this was not the time to argue the \nmerits of his claim. Claimant got extremely loud and aggressive stating that he may lose his legs \nor become homeless before his case was heard. Claimant was further advised that this is the \nprocess to get to the merits of his claim and he can hire an attorney or contact the legal advisors \nto help with this process. Despite my advice, the Claimant continued to argue the merits of his \nclaim. He was again admonished that this was not the time to go into the merits of his claim. The \nClaimant immediately hung up after being admonished. However, the prehearing phone \nconference was not over. I called the Claimant back and advised that he should compose himself \nproperly and that acting out will not be tolerated. Claimant was then given December 22, 2023, \n\nCLARK, AWCC No. H208114 \n \n5 \n \nas his full hearing date and was told that he needs to comply with discovery since Respondents’ \ncounsel made that an issue during the phone conference. A Prehearing Order was filed that same \nday as the phone conference. \nOn December 13, 2023, Respondents’ counsel requested a continuance due to Claimant’s \nfailure to comply with discovery. A phone conference was held with the parties and Claimant \nadmitted to not complying with discovery. As a result, I continued the hearing and returned the \nfile to general files. See Melanie Miller email dated December 13, 2023, blue-backed. \nOn April 1, 2024, a second hearing was set for June 28, 2024, Jonesboro, Arkansas, \ntwelve noon. See Melanie Miller email dated April 1, 2024, blue-backed. Proper notice was sent \nout to the Claimant at his last known address of record. \nOn June 28, 2024, the day of the full hearing, the Claimant spoke with Catherine \nFerguson, my former legal assistant, who still works for the Commission, at 8:16 am, asking \nwhat time the hearing was set for and the address where it will be held. Ms. Ferguson answered \nhis question. Claimant subsequently spoke with Melanie Miller, my assistant, later that morning \nat 9:44 am. Claimant informed my assistant that he woke up and did not know where his papers \nwere and where the hearing was going to be held but he called around and got the answer. See \nMelanie Miller email dated June 28, 2024, blue-backed. \nClaimant walked into the courtroom at 12:10 pm, the proceedings were to begin at 12:00 \npm. The Claimant entered the courtroom with a back brace and a women dressed in scrubs \nassisting him. The Claimant walked slowly, in a clearly overly exaggerated and dramatic way, to \ncounsel’s table and made an oral Motion for Continuance. The substance of his Motion was that \nhe was not feeling well, and that discovery was not complete. Claimant’s discovery issue was \nbased on his belief that Respondents sent him forty-nine pages of falsified documents. See \n\nCLARK, AWCC No. H208114 \n \n6 \n \nTranscript, pages 3, lines 22-25, through page 4, lines 1-8. This issue has been fully addressed \nand ruled on. See Motion to Compel Order filed June 18, 2024, blue-backed. As to the Claimant \nnot feeling well, he states he hasn’t felt well in a couple of days. However, he states this \nmorning, the day of his hearing, his pain was bad, and he had taken some medication. \nThe Respondents objected to the Motion. I agreed with Respondents’ objection and \ndenied the Motion. I did not believe the Claimant was actually hurt, rather he was not prepared \nand needed an excuse for a continuance. Therefore, I advised the Claimant that we are all \npresent and ready to go forward with this claim. The Claimant started to leave the courtroom. I \nwarned the Claimant if he left the courtroom that I would entertain an oral Motion to Dismiss \nfrom Respondents. The Claimant continued to walk towards the door, so I gave him the same \nwarning a second time. Despite these two warnings the Claimant left the courtroom. The \nRespondents made their oral Motion to Dismiss due to a lack of prosecution. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \nTherefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n1. The Commission has jurisdiction over this claim. \n2. The Claimant and Respondents both had reasonable notice of the June 28, 2024, \nhearing. \n3. Respondents have proven by a preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13. \n4. The Respondents’ oral Motion to Dismiss should be granted. \n5. This claim is hereby dismissed without prejudice. \n \n\nCLARK, AWCC No. H208114 \n \n7 \n \nDISCUSSION \n I find by preponderance of the evidence that the Claimant was exaggerating his health \nissues and used it as a pretext in hopes of gaining a continuance. The Claimant alleges he was \nhurting for days prior to the hearing but did not make the Commission aware of it. Instead, he \nstates, that the “morning” of the hearing his pain was particularly bad, and he had to take \nmedication to help with that pain. I don’t credit Claimant’s statement. The Claimant had ample \nopportunities to contact the Commission and Respondents’ counsel making us aware of his \ncondition. The Claimant spoke with Catherine Ferguson, an employee of the Commission, at \n8:16 am, the day of the hearing, to get the time and place for the hearing. The Claimant, during \nthe same morning, later spoke with Melanie Miller, my assistant, at 9:44 am, almost an hour and \na half later after speaking with Ms. Ferguson, stating that he woke up not knowing where his \npapers were and did not know where the hearing would take place. Claimant never stated to Ms. \nFerguson or Ms. Miller that he was not feeling well, had to take medication for pain, or wanted a \ncontinuance. \n The Claimant also argues that there were discovery issues. The Claimant alleges that the \ndiscovery sent to him by Respondents’ counsel was fraudulent. Claimant was made aware, via \nJune 11, 2024, phone conference, and in an Order filed June 18, 2024, and blue-backed to this \nrecord, that he can present any contradictory evidence at the full hearing, and it will be reviewed. \nThus, the discovery issue as a bases for the continuance is without merit. \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant appeared at the hearing with \none thin manilla envelope. Based on the amount of discovery produced in this claim, it was clear \nthat he was not prepared to go forward with the full hearing. It was also clear, based on my \n\nCLARK, AWCC No. H208114 \n \n8 \n \nobservations of Claimant, that his claim of not feeling well was not genuine\n2\n, rather a mere \npretext to disguise the fact that he was not prepared to go forward with the claim. This was the \nsecond full hearing scheduled for the Claimant. The first was continued due to the Claimant not \ncomplying with discovery, although he had more than two months to comply. Again, I had \ndenied Claimant’s oral Motion for Continuance during the hearing. The Claimant decidedly left \nthe courtroom after my ruling despite being given two warnings. The Claimant was not \ndismissed from the hearing and his exit from the courtroom proceedings was an abandonment of \nhis claim. Therefore, I do find by the preponderance of the evidence that Respondents’ oral \nMotion to Dismiss should be granted. \nThat leaves the question of whether the dismissal of the claim should be with or without \nprejudice. The Commission possesses the authority to dismiss claims with prejudice. Loosey v. \nOsmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 (1988). However, in \nnumerous past decisions, this Commission and the Appellate Courts have expressed a preference \nfor dismissals without prejudice. See Professional Adjustment Bureau v. Strong, 275 Ark. 249, \n629 S.W.2d 284 (1982). Based on the above authorities, I find that the dismissal of this claim \nshould be and hereby is entered without prejudice. \nREMAINING ISSUES \n Because of the above findings and conclusions, the remaining issues—whether Claimant \nsustained a compensable injury to his low back on November 5, 2022; whether Claimant is \nentitled to reasonable and necessary medical treatment and related expenses, including mileage \n \n2\n It must be noted, that after the hearing, the bailiff, Deputy Mark Ballard, who retrieved \nthe Claimant from a courtroom in a different court building, voluntarily stated to me that he saw \nthe Claimant walking “normally” from one building to the next before the proceedings began. He \nfurther stated that the Claimant changed how he was walking when entering the annex building. \nClaimant then started shaking when he made it to the Worker’s Compensation courtroom. \n\nCLARK, AWCC No. H208114 \n \n9 \n \nand out of pocket expenses; whether Claimant is entitled to temporary total disability—are moot \nand will not be addressed. \nCONCLUSION \n Based on the Findings of Fact and Conclusions of Law set forth above, Respondents’ oral \nMotion to Dismiss is granted, without prejudice. \n IT IS SO ORDERED. \n \n \n ______________________________ \n Steven Porch \n Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H208114 RICHARD CLARK, EMPLOYEE CLAIMANT NESTLE US HOLDCO, INC., SELF-INSURED/EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA, CARRIER RESPONDENT ESIS, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JULY 24, 2024 Hearing conducted on Wednesd...","fetched_at":"2026-05-19T22:51:54.001Z","links":{"html":"/opinions/alj-H208114-2024-07-24","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Clark_Richard_H208114_20240724.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}