{"id":"alj-H301500-2023-12-14","awcc_number":"H301500","decision_date":"2023-12-14","opinion_type":"alj","claimant_name":"Amber Potts","employer_name":"Wal-Mart Associates, Inc","title":"POTTS VS. WAL-MART ASSOCIATES, INC. AWCC# H301500 DECEMBER 14, 2023","outcome":"dismissed","outcome_keywords":["dismissed:3"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Potts_Amber_H301500_20231214.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Potts_Amber_H301500_20231214.pdf","text_length":9669,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301500 \n \n \nAMBER POTTS, EMPLOYEE CLAIMANT \n \nWAL-MART ASSOCIATES, INC., \n SELF-INSURED EMPLOYER RESPONDENT \n \nWAL-MART CLAIMS SVCS., \n THIRD PARTY ADMR. RESPONDENT \n \n \nOPINION FILED DECEMBER 14, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on December 13, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Rick  Behring,  Jr.,  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  December 3, 2023, in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted into evidence without objection were the following:  Commission Exhibit \n1  and Respondents’  Exhibit  1,  forms,  pleadings,  and  correspondence  related  to \nthis claim, consisting of 21 and 27 numbered pages, respectively. \n\nPOTTS – H301500 \n2 \n \n The record reveals the following procedural history: \n The  First  Report  of  Injury  or  Illness,  filed  on  March  6,  2023,  reflects  that \nClaimant  purportedly  suffered  an  injury  to  her  hands  on  October  10,  2022,  from \nlifting  meat  in  a  cooler  at  work.    Per  the  Form  AR-2  filed  on  that  same  day, \nRespondents controverted the claim in its entirety.  Respondents’ counsel entered \nhis appearance on July 25, 2023. \n In correspondence to the Commission received on April 7, 2023,  Claimant \nwrote: \n \nTo whom it may concern: \n \nMay  I  please  request  a  hearing  on  the  denial  of  my  workers[’] \ncompensation.    For  surgery  needed  to  fix  my  hands,  and  the \nhorrible pain.  I appreciate the time and assistance. \n \nSincerely, \n \nAmber Lynn Potts \nClaim # H301500 \n \nThe  matter  was  assigned  to  the  Legal  Advisor  Division.    But  after  no  resolution \nwas  reached  during  the  Legal  Advisor  conference,  the  file  was  returned  to  the \nClerk of the Commission for reassignment to an administrative law judge. \n Upon  assignment  to  Administrative Law  Judge  Chandra Black  on July  28, \n2023,  her  office  issued  prehearing  questionnaires  to  the  parties.    However, \nClaimant failed to file a questionnaire response.  For that reason, Judge Black on \nAugust 18, 2023, returned the file to the Commission’s general files. \n The  record  reflects  that  no  further  action  was  taken  on  the  case  until \nOctober  23,  2023,  when  Respondents  filed  the  instant  Motion  to  Dismiss  under \n\nPOTTS – H301500 \n3 \n \nArk. Code Ann. § 11-9-702 (Repl. 2012) and AWCC R. 099.13, along with a brief \nin support thereof.  On October 25, 2023, Judge Black wrote Claimant, requesting \na response to the motion within 20 days.  This correspondence was sent by both \ncertified and first-class mail, but my review shows that there was a typographical \nerror in the address used; while Claimant’s address in Hope, Arkansas is listed in \nthe  file  and  on  her  return  envelope  containing  the  hearing  request  as “167 \nHempstead  15,”  the  letters  were  mailed to “167  Hempstead  16.”     Unsurprisingly, \nthe United States Postal Service returned both letters with the notation “NO SUCH \nNUMBER”; and no response from Claimant was forthcoming. \n On November 14, 2023, a hearing on Respondents’ motion was scheduled \nfor December 13, 2023, at 10:3 0 a.m. at the Commission.  The Notice of Hearing \nwas sent to Claimant by certified and first-class mail to the correct address in this \ninstance.  Claimant signed for the certified letter on November 28, 2023; and  the \nfirst-class letter was never returned. \n The  hearing  proceeded  as  scheduled  on  December 13,  2023.    Claimant \nfailed to appear at the hearing.  But Respondents appeared through counsel and \nargued for dismissal under, inter alia, Rule 13. \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): \n\nPOTTS – H301500 \n4 \n \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. Claimant has failed to prosecute her claim. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n5. The claim is hereby dismissed without prejudice. \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)(discussing, inter alia, Rule 13). \n No  Form AR-C  has  been  filed  in  this  case.    That  is  the  means  for  filing  a \n“formal  claim.”   See  Yearwood  v.  Wal-Mart  Stores,  Inc.,  2003  AR Wrk.  Comp. \nLEXIS 739,  Claim  No.  F201311  (Full  Commission  Opinion  filed  June  17,  2003).  \nSee  also Sinclair  v.  Magnolia  Hospital,  1998  AR Wrk.  Comp.  LEXIS 786,  Claim \nNo.  E703502  (Full  Commission  Opinion filed  December  22,  1998)(a  claim  is \n“typically” filed via a Form AR-C).  While a Form AR-1 was filed in this case, that \ndoes not suffice to instigate a claim.  Id. \n\nPOTTS – H301500 \n5 \n \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 Work. \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 correspondence \nto the Commission to constitute a claim for additional compensation \nfor  the  purposes  of  tolling  the  applicable  Statute  of  Limitations.    In \nthat case, the Court held that an attorney's correspondence notifying \nthe  Commission  that  he  has  been employed to  assist  a  claimant  in \nconnection  with  unpaid  benefits  is  sufficient  to  state  a  claim  for \nadditional  compensation  where  the  correspondence  also  lists  the \nclaimant's  name,  the  employer's  name  and  the  WCC  file  number. \nId., See also, Garrett v. Sears Roebuck and Company, 43 Ark. App. \n37, 858 S.W.2d 146 (1993).  Moreover, we have interpreted Cook as \nrequiring  that  correspondence  intended  as  a  claim  for  additional \nbenefits  (1)  identify  the  claimant,  (2)  indicate  that  a  compensable \ninjury  has  occurred,  and  (3)  convey  the  idea  that  compensation  is \nexpected. \n \n(Citations omitted) \n My  review  of  the  Commission’s  file  discloses  a  document  sufficient  to \nconstitute a filing of a claim for initial benefits under the factors cited above.  That \ndocument is Claimant’s April 7, 2023, hearing request. \n The  evidence  adduced  at  the  hearing  shows  that  Claimant  has  taken  no \naction in pursuit of her claim since making the hearing request over eight months \nago.  Moreover, she failed to appear on the hearing to argue against dismissal of \nthe  claim,  despite  the  evidence  clearly  showing  that  both  she  and  Respondents \n\nPOTTS – H301500 \n6 \n \nwere  provided  reasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing \nthereon.    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(a)(4) (Repl. 2012). \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 Pr  ofessional  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 this claim should be and hereby is entered without prejudice.\n1\n \nCONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \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\nPOTTS – H301500 \n7 \n \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. H301500 AMBER POTTS, EMPLOYEE CLAIMANT WAL-MART ASSOCIATES, INC., SELF-INSURED EMPLOYER RESPONDENT WAL-MART CLAIMS SVCS., THIRD PARTY ADMR. RESPONDENT OPINION FILED DECEMBER 14, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on December ...","fetched_at":"2026-05-19T22:59:30.377Z","links":{"html":"/opinions/alj-H301500-2023-12-14","pdf":"https://labor.arkansas.gov/wp-content/uploads/Potts_Amber_H301500_20231214.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}