{"id":"alj-H208734-2023-09-22","awcc_number":"H208734","decision_date":"2023-09-22","opinion_type":"alj","claimant_name":"Misty Sanders","employer_name":"Pulaski Co. Sheriff’s Office","title":"SANDERS VS. PULASKI CO. SHERIFF’S OFFICE AWCC# H208734 & H300195 & H300372 SEPTEMBER 22, 2023","outcome":"dismissed","outcome_keywords":["dismissed:4","denied:2"],"injury_keywords":["ankle","repetitive","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Sanders_Misty_H208734_H300195_H300372_20230922.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Sanders_Misty_H208734_H300195_H300372_20230922.pdf","text_length":17976,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NOS. H208734, H300195 & H300472 \n \n \nMISTY D. SANDERS, EMPLOYEE CLAIMANT \n \nPULASKI CO. SHERIFF’S OFFICE, \n EMPLOYER RESPONDENT \n \nASSOC. OF ARK. COUNTIES RISK \nMGMT. SVCS., THIRD-PARTY \nADMINISTRATOR RESPONDENT \n \n \nOPINION FILED SEPTEMBER 22, 2022 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  August  24, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \n \nRespondents represented by Mr. Jarrod S. Parrish, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on  the Motion to Dismiss filed \nby Respondents.  A hearing on the motion was conducted on August 24, 2023, in \nLittle Rock, Arkansas.  Claimant was pro se.  Respondents were represented at \nthe  hearing  by  Mr.  Jarrod  S.  Parrish,  Attorney  at  Law,  of  Little  Rock,  Arkansas.  \nAdmitted  into  evidence  were  the  following:    Respondents’  Exhibit  1,  forms  and \ncorrespondence related to Claim No. H208734, consisting of one index page and \nseven   numbered   pages   thereafter;   Respondents’   Exhibit   2, forms   and \ncorrespondence related to Claim No. H300195, consisting of one index page and \nseven  numbered  pages  thereafter;  and  Respondents’  Exhibit  3,  forms  and \ncorrespondence  related  to  Claim  No.  H300472,  consisting  of  two index  pages \n\nSANDERS – H208734, H300195 & H300472 \n \n2 \n \nand twelve numbered pages thereafter.  Without objection, the Commission’s file \nhas been incorporated herein in its entirety by reference. \n H208734  The  evidence  reflects  that  per  the  First  Report  of  Injury  or \nIllness  filed  on December  15,  2022,  Claimant  purportedly  injured  her  right \nAchilles  tendon  on  or  around  March  1,  2021,  as  a  result  of  repeated  running  to \nrespond to work-related emergencies.  According to the Form AR-2 that was filed \nthat same day, Respondents denied the claim.  No Form AR-C was ever filed. \n H300195  According to the First Report of Injury or Illness filed on January \n13,  2023,  Claimant  hurt  her  right  Achilles  tendon  on  October  14,  2022,  when \n“[r]esponding to emergency codes called to ensure safety of staff members.”  In \nthis instance, per the Form AR-2 filed that same day, Respondents accepted the \nclaim  as  a  medical-only  one.    In  a  Form  AR-C  filed  on  January  10,  2023, \nClaimant   requested   temporary   partial   disability   benefits,   rehabilitation,   and \npayment  of  medical  expenses  for  a  right  ankle  injury.    She  also  sought  on \nJanuary 10, 2023, a one-time change of physician.  This was granted on January \n24, 2023, and changed her authorized treating physician from Dr. Eric Gordon to \nDr. Jesse Burks. \n H300472.    With  respect  to  this  particular  claim,  the evidence  shows  that, \nper  the  First  Report  of  Injury  or  Illness  filed  on  December  15,  2022,  Claimant \ninjured  her  right  Achilles  tendon  on  March  2,  2021,  by  repetitive  running  to \nrespond to emergency codes.  The Form AR-2 that was likewise filed on January \n\nSANDERS – H208734, H300195 & H300472 \n \n3 \n \n24, 2023,  Respondents denied  the  claim.   Claimant  did  not  file a  Form  AR-C  in \nconnection  with  this  particular  file.    But  on  January  26,  2023,  she  wrote  the \nCommission  in  regard  to  it:   “I,  Misty  D.  Sanders  am  requesting  a  Hearing  in \nreference  to  my  Workers’  Compensation  claim  stated  above.”  When  efforts  to \nschedule a legal advisor or mediation conference failed, the file was assigned to \nme  on  March  13,  2023.    On  March  23,  2023,  prehearing  questionnaires  were \nissued  to  the  parties.    Respondents  filed  a  timely  response  thereto  on  April  11, \n2023.    But  because  Claimant  failed  to  respond,  the  file  was  returned  to  the \nCommission’s general files on April 28, 2023. \n Nothing  further  took  place  on  these  three  files  until  May  16,  2023,  when \nRespondents  filed  the  instant  Motion  to  Dismiss.    Therein,  they  argued  that \ndismissal  of  all  three  claims  was  warranted  under  Ark.  Code  Ann.  § 11-9-702 \n(Repl. 2012) and AWCC R. 099.13 because of Claimant’s failure to pursue them, \nincluding requesting a hearing thereon within the previous six months.  The Clerk \nof the Commission reassigned the files to me on May 31, 2023; and on June 15, \n2023, my office wrote Claimant, asking her to respond to the motion within twenty \n(20)  days.    The  letter  was  sent  to  her  by  first-class  and  certified  mail  at  the \naddress  for  her  listed  in  the  files  and  on  the  Form  AR-C.  She  signed  for  the \ncertified  letter  on  June  20,  2023;  and  the  first-class  letter  was  not  returned.  \nClaimant  testified  that  she  prepared  and  emailed  a  response  to  my  office.    My \n\nSANDERS – H208734, H300195 & H300472 \n \n4 \n \nreview  of  the  three  files  reveals  that  on  July  5,  2023,  she  emailed  my  former \nassistant, Natalie Craig (and copying Respondents’ co-counsel Melissa Wood): \nDear Mrs. [sic] Natalie Craig and whom it may concern, \n \nMy name is Misty Sanders.  I am writing in response to paperwork \nreceived  from  your  office.    I  will  first  state  how  confused  I  am  with \neverything going on in my case.  I received double correspondence \nfrom  your  office  and  a  law  firm  stating  to  complete  and  return,  in \nwhich  I  did.    Several  weeks  later  I  received  more  correspondence \nstating  paperwork  was  never  received  and  their  office  is  filing  for \n[d]ismissal.    I  do  have  documentation.    I  feel  that  AWCC  is  and \nhave been been delibritely [sic] misinforming me on weather [sic] or \nnot  I  needed  legal  representation,  but  at  this  point  I’m  almost \ncertain  I  do.    Upon  my  second  injury  it  was  determined  by  my \nsurgeon,  and  seconded  by  the  AWCC  doctor  that  my  injuries  (first \nand  second)  were  work  related,  something  I  never  suspected.   I \nwas unaware that I needed legal representation, because doing the \nright thing does not require it and I could not afford it.  So, I followed \nall  orders  given  to  me.    I  was  never  compensated  for  missed  time \noff  for  the  injury  that  to  [sic]  Pulaski  County  took  full  responsibility \nfor, because documentation was received on the wrong foot, never \nrequesting correct foot knowing that it was two of the same injuries \non file. \n \nHowever, I am requesting a  [h]earing in writing to you via this \nemail,   because   someone   should   hear   my   story.  If   any \nquestions  or  concerns  please  contact  me  at  501-960-2543  or  via \nemail[.] \n \n(Emphasis added) \n On July 11, 2023, a hearing on the motion was scheduled for  August 24, \n2023, at 9:30 a.m. at the Commission in Little Rock.  The notice thereof was sent \nto Claimant by first-class and certified mail using the same address as before.  In \nthis instance, both the first-class and certified letters were returned, undelivered, \nto the Commission on July 17 and 25, 2023, respectively.  Regardless, Claimant \n\nSANDERS – H208734, H300195 & H300472 \n \n5 \n \ntestified  that  she  received  notice  of  the  hearing  via  email—illustrated  by  her \nappearance there. \n The hearing on the Motion to Dismiss proceeded as scheduled on August \n24,  2023.    Again,  Claimant  appeared pro  se  and  testified.  Respondents \nappeared  through  counsel  and  argued  for  dismissal  of  the  three  files  under  the \naforementioned authorities. \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 matter. \n2. No Form AR-C has ever been filed in connection with  AWCC Nos. \nH208734 and H300472.  While nothing constitutes a claim for initial \nbenefits   concerning   H208734,   Claimant’s   January   26,   2023, \nhearing  request  regarding  H300472  suffices  to  constitute  a  claim \nfor initial benefits. \n3. All parties received notice of the Motion to Dismiss and the hearing \nthereon pursuant to AWCC R. 099.13. \n\nSANDERS – H208734, H300195 & H300472 \n \n6 \n \n4. Because  nothing  in  the  file  constitutes  an  initial  claim  for  benefits \nregarding  H208734,  there  is  no  claim  to  dismiss;  the  Motion  to \nDismiss is hereby denied regarding this particular file. \n5. Respondents have not proven by a preponderance of the evidence \nthat Claimant has failed to prosecute H300195 and H300472 under \nAWCC R. 099.13. \n6. Respondents have not proven by a preponderance of the evidence \nthat dismissals of H300472 and H300195 are warranted under Ark. \nCode Ann. § 11-9-702(a)(4) & (d) (Repl. 2012), respectively. \n7. The  Motion  to  Dismiss  should  be,  and  hereby  is,  denied  without \nprejudice. \n8. Claimant has requested a hearing on her claims. \n9. This matter will proceed to a hearing on the merits. \nIII.  DISCUSSION \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 \nthese  matters–by  a  preponderance  of  the  evidence.    This  standard  means  the \nevidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. \n373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n\nSANDERS – H208734, H300195 & H300472 \n \n7 \n \n As  noted  above,  no  Form AR-C  has  been  filed  in  connection  with \nH208734  and  H300472.    That  is  the  means  for  filing  a  “formal  claim.”   See \nYearwood  v.  Wal-Mart  Stores,  Inc.,  2003  AR  Wrk.  Comp.  LEXIS  739,  Claim  No. \nF201311  (Full  Commission  Opinion  filed  June  17,  2003).   See  also Sinclair  v. \nMagnolia  Hospital,  1998  AR Wrk.  Comp.  LEXIS  786,  Claim  No.  E703502  (Full \nCommission  Opinion filed  December  22,  1998)(a  claim is  “typically”  filed via  a \nForm  AR-C).  While  a  Forms AR-1  were  filed,  they  do  not  suffice  to  instigate  a \nclaim.  Id. \n I  recognize,  however,  that  other  means  exist  to  file  a  claim  for  initial \nbenefits  other  than  a  Form  AR-C.    In Downing  v.  Univ.  of  Ark.,  1999  AR Wrk. \nComp. LEXIS 979, Claim No. E209360 (Full Commission Opinion filed March 16, \n1999), the Commission stated: \nWhile   it   appears   that   no   court   has   addressed   the   minimum \nrequirements under Arkansas law to state an adequate “petition for \nreview”, in Cook v. Southwestern Bell Telephone Company, 21 Ark. \nApp.  29,  727  S.W.2d  862  (1987)  the  Arkansas  Court  of  Appeals \ndiscussed the minimum requirements necessary for \ncorrespondence   to   the   Commission   to   constitute   a   claim   for \nadditional  compensation  for  the  purposes  of  tolling  the  applicable \nStatute  of  Limitations.     In  that  case,   the  Court  held  that  an \nattorney's  correspondence  notifying  the  Commission  that  he  has \nbeen  employed  to  assist  a  claimant  in  connection  with  unpaid \nbenefits  is  sufficient  to  state  a  claim  for  additional  compensation \nwhere  the  correspondence  also  lists  the  claimant's  name,  the \nemployer's name and the WCC file number. Id., See also, Garrett v. \nSears  Roebuck  and  Company,  43  Ark.  App.  37,  858  S.W.2d  146 \n(1993).    Moreover,  we  have  interpreted Cook  as  requiring  that \ncorrespondence  intended  as  a  claim  for  additional  benefits  (1) \nidentify  the  claimant,  (2)  indicate  that  a  compensable  injury  has \noccurred, and (3) convey the idea that compensation is expected. \n\nSANDERS – H208734, H300195 & H300472 \n \n8 \n \n \n(Citations omitted) \n My  review  of  the  Commission’s  file  discloses no  document  sufficient  to \nconstitute  a  filing  of  a  claim  for  initial  benefits  under  the  factors  cited  above \nregarding H208734.  Because there is no claim, it follows that there is nothing to \ndismiss.  The Motion to Dismiss is thus denied vis-à-vis H208734. \n As for H300472, I find that  Claimant’s  January 26, 2023,  hearing request \naddressed  to  the  Commission  suffices  to  constitute  a  claim  for  initial  benefits \nunder the above standard. \n AWCC 099.13 provides: \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).  In turn, Ark. Code Ann. § 11-9-702(a)(4) & (d) (Repl. 2012) read: \n(4)   If   within   six   (6)   months   after   the   filing   of   a   claim   for \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim may,  upon  motion  and  after \nhearing,  be  dismissed  without  prejudice  to  the  refiling  of  the  claim \nwithin  limitation  period  specified  in  subdivisions  (a)(1)-(3)  of  this \nsection. \n \n. . . \n \n(d)  If  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 \nhearing, if necessary, be dismissed without prejudice to the refiling \n\nSANDERS – H208734, H300195 & H300472 \n \n9 \n \nof  the  claim  within  limitation  period  specified  in  subsection  (b)  of \nthis section. \n \n(Emphasis  added)    Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012), \nRespondents  must  prove  by  a  preponderance  of  the  evidence  that  dismissal \nshould  be  granted.    The  standard  “preponderance  of  the  evidence”  means  the \nevidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. \n373,  326  S.W.3d  415;  Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson \nWorld Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination of a \nwitness’ credibility and how much weight to accord to that person’s testimony are \nsolely up to the Commission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, \n37 S.W.3d 649 (2001).  The Commission must sort through conflicting evidence \nand determine the true facts.  Id.  In so doing, the Commission is not required to \nbelieve  the  testimony  of  the  claimant  or any  other  witness,  but  may  accept  and \ntranslate  into  findings  of  fact  only  those  portions  of  the  testimony  that  it  deems \nworthy of belief.  Id. \n At  the  hearing,  Claimant  initially  testified  that  despite  my  review  of \nH300472   indicating   otherwise,   she   prepared   a   prehearing   questionnaire \nresponse and faxed it to my office.  However, further questioning revealed that at \nbest, she sent it only to the office of Respondents’ counsel; and even then, what \nshe  sent  the firm may  not have  been  a  response to  the questionnaire  my office \n\nSANDERS – H208734, H300195 & H300472 \n \n10 \n \nmailed her.  Claimant could not confirm whether or not she received the April 28, \n2023, letter from my office informing her that H300472 was being returned to the \nCommission’s   general   files   because   of   her   failure   to   file   a   questionnaire \nresponse.    The  file  does  not  reflect  any  follow-up  by  her  in  response  to  the \ncommunication.    Her  testimony  readily  reflects  that  she  became  confused \nregarding the  identities of the various actors in these matters:  the Commission, \nRespondents, and Respondents’ counsel. \n Throughout the proceeding, she stated that she became confused not only \nby  the  legal  intricacies  involved,  but  by  there  being  three  separate  files  opened \nwith respect to her alleged injuries.  She further explained that she only has two \ninjuries:  one with an alleged injury date of April 11, 2022, and involving her  left \nAchilles  tendon,  and  the  other  with  an  alleged  injury  date  of  October  14,  2022, \nand involving her right Achilles tendon.  My review of the three files discloses that \nthe  April  11,  2022,  date  corresponds  to  H300472,  while  October  14,  2022, \ncorresponds  to  H300195.  In  her  testimony,  relating  back  to  her  confusion  over \nthe  process,  Claimant  stated  that  with  respect  to  her  hearing  request  on \nH300195, it was her belief that she was asking for a hearing on both injuries; i.e., \nshe wanted a hearing on both H300195 and H300472. \n Claimant  objected  to  a  dismissal,  and  requested  a  hearing  on  both \nH300195 and H300472, in the event that they are not dismissed. \n\nSANDERS – H208734, H300195 & H300472 \n \n11 \n \n After  consideration  of  the  evidence,  I  find  that  while  both  Claimant  and \nRespondents  were  given  reasonable  notice  of  the  hearing  on  the  Motion  to \nDismiss under Rule 13, Claimant has not yet abridged that rule.  Moreover, I do \nnot find that dismissal is warranted under § 11-9-702(a)(4) or (d).  The Motion to \nDismiss  is  thus  denied  without  prejudice  with  regard  to  H300472  and  H300195, \nrespectively.  Prehearing  questionnaires\n1\n  will  be  immediately  issued  to  the \nparties, and these claims will proceed to a full hearing on the merits. \nCONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, the Motion to Dismiss is hereby denied. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\nOut of an abundance of caution, one will be sent out on H208734 as well.","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NOS. H208734, H300195 & H300472 MISTY D. SANDERS, EMPLOYEE CLAIMANT PULASKI CO. SHERIFF’S OFFICE, EMPLOYER RESPONDENT ASSOC. OF ARK. COUNTIES RISK MGMT. SVCS., THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED SEPTEMBER 22, 2022 Hearing before Chief Administrati...","fetched_at":"2026-05-19T23:03:02.688Z","links":{"html":"/opinions/alj-H208734-2023-09-22","pdf":"https://labor.arkansas.gov/wp-content/uploads/Sanders_Misty_H208734_H300195_H300372_20230922.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}