{"id":"alj-H306935-2026-05-05","awcc_number":"H306935","decision_date":"2026-05-05","opinion_type":"alj","claimant_name":"James Payne","employer_name":"Nucor Steel Of Ark","title":"PAYNE VS. NUCOR STEEL OF ARK. AWCC# H306935 May 05, 2026","outcome":"dismissed","outcome_keywords":["dismissed:6","denied:2"],"injury_keywords":[],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Payne_James_H306935_20260505.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Payne_James_H306935_20260505.pdf","text_length":9484,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H306935 \n \n \nJAMES T. PAYNE, EMPLOYEE CLAIMANT \n \nNUCOR STEEL OF ARK., \n EMPLOYER RESPONDENT \n \nARCH INDEMN. INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED MAY 5, 2026 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on May  1,  2026, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant pro se. \n \nRespondents represented by Mr. Zachary F. Ryburn, Ryburn Law Firm, Attorneys \nat Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on May  1,  2026, in \nJonesboro, Arkansas.  The testimony of Claimant was taken in the case.  Also, in \norder  to  address  adequately  this  matter  under  Ark.  Code  Ann. § 11-9-705(a)(1) \n(Repl. 2012)(Commission must “conduct the hearing . . . in a manner which best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe   record   documents—forms,   pleadings,   and   correspondence—from   the \nCommission’s file on the claim, consisting of 45 pages.  In accordance with Sapp \nv.  Tyson  Foods,  Inc.,  2010  Ark.  App.  517,  2010  Ark.  App.  LEXIS 549,  these \ndocuments have been served on the parties in conjunction with this opinion. \n\nPAYNE – H306935 \n \n2 \n \n The record shows the following procedural history: \n On October  26,  2023, through  then-counsel Scott  Hunter,  Jr., Claimant \nfiled a Form AR-C.  Therein, Claimant requested the full range of initial indemnity \nbenefits  and alleged  that  he  suffered a  compensable  injury  to  his  left  elbow  on \nAugust 14, 2023.  No hearing request accompanied this filing. \n On November 9, 2023, Hunter requested a change of physician on behalf \nof his client.  In an order entered by the Medical Cost Containment Division of the \nCommission on December 21, 2023, Claimant’s authorized treating physician was \nchanged  from  Dr.  Christian  Fahey  to  Dr.  Apurva  Dalal;  and  an  appointment  with \nDalal  was  set  for  January  16,  2024,  at  1:00  p.m.    In  an  amended  order  dated \nFebruary 29, 2024, the appointment date was changed to February 12, 2024. \n Hunter’s office emailed the Commission on November 7, 2024, requesting \na hearing on the claim.  The file was assigned to me on November 8, 2024; and \nprehearing  questionnaires  were  issued  to  the  parties  that  same  day.    On \nNovember  11,  2024,  Respondents’  co-counsel  entered  his  appearance.  The \nparties   filed   timely   prehearing   responses   on   December   9   and   10,   2024, \nrespectively.    A  prehearing  conference  on  the  claim  took  place  on  January  6, \n2025.    Following  that  conference,  I  issued  a  prehearing  order,  scheduling  a \nhearing for March 21, 2025, on the following issue:  “Whether Claimant is entitled \nto additional treatment of his stipulated compensable left upper extremity injury in \nthe form of surgery and related treatment.”  However, Hunter requested a hearing \n\nPAYNE – H306935 \n \n3 \n \non March 13, 2025, representing to the Commission that Claimant had suffered a \nheart  attack  and  had  to  have  four  stents  implanted.    To  allow  Claimant  time  to \nrecover, I cancelled the hearing and returned the file to the Commission’s general \nfiles. \n On April 29, 2025, Hunter’s office emailed another hearing request to the \nCommission.    The  hearing  was  rescheduled  for  August  1,  2025.   However,  on \nJuly 23, 2025, Hunter’s office emailed my office, stating: \nWe  have  spoken  to  our  client  and  he has  decided  that there  is no \nreason for a hearing at this time.  We would like to request the file \nbe  returned  to  general  files  and  should  it  be  necessary, we  will \nrequest a hearing in the future. \n \nBased  on  this,  along  with  an  indication  by  Respondents  that  they  were  not \nobjecting, the hearing was again cancelled, and the file was again returned to the \nCommission’s general files. \n The  record  reflects  that  no  further  action  took  place  on  the  claim  until \nJanuary  6,  2026,  when  Respondents  filed  the  instant  motion to  dismiss.    Hunter \nfiled  a  motion  to  withdraw  from  his  representation  of  Claimant  on  January  13, \n2026.  In an order entered on February 9, 2026, I granted Hunter’s motion under \nAWCC Advisory 2003-2.  On March 2, 2026, my office wrote Claimant, asking for \na response to the motion to dismiss within 20 days.  Claimant did so on March 26, \n2026, stating in pertinent part: \n \n\nPAYNE – H306935 \n \n4 \n \nI do not wish for this motion to dismiss be granted.  I do not feel like \nmy injury was properly taken care of from day one.  I am currently \nwaiting  for  an  investigation  for  medical  malpractice  to  conclude  by \nthe  Arkansas  Board  of  Nursing  against  Nucor’s  nurse  Krissy \nCunningham.    I  have  a  lot  of  evidence  to  support  my  claim  for \nmedical malpractice including emails and even voice recordings. \n \n. . . \n \nI  am  also  having  a difficult  time finding  a new  attorney  to  take this \ncase against Nucor. \n \n On March 25, 2026, a hearing on the Motion to Dismiss was scheduled for \nMay 1, 2026, at 1:00 p.m. at the Commission in Little Rock.  The hearing on the \nMotion to Dismiss proceeded as scheduled.  Both parties appeared at the hearing \npursuant  to  the  Notice  of  Hearing,  and  Claimant  gave  testimony.    Respondents \nappeared through counsel and argued for dismissal under AWCC R. 099.13 (now \ncodified as 11 C.A.R. § 25-110(d)). \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. All parties received notice of the Motion to Dismiss and the hearing \nthereon pursuant to 11 C.A.R. § 25-110(d). \n\nPAYNE – H306935 \n \n5 \n \n3. Respondents  have not proven  by  a preponderance  of the  evidence \nthat  Claimant  has  failed  to  prosecute  this  claim under 11  C.A.R.  § \n25-110(d). \n4. The Motion to Dismiss is hereby denied. \n5. Claimant has requested a hearing on the issue of his entitlement to \nadditional benefits. \n6. This claim will proceed to a hearing on the merits. \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) 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\nPAYNE – H306935 \n \n6 \n \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 Claimant testified that the reason that he had not renewed his request for a \nhearing was that (1) he was unsuccessfully seeking new counsel; (2) he had been \npreoccupied  by  the  above-referenced  proceeding  before  the  Arkansas  Nursing \nBoard.  Claimant explained that he no longer wished to have the surgery that was \nto  have  been  the  subject  of  the  original  hearing,  because  it  is  his  understanding \nthat  too  much  time  has  elapsed  for  it  to  be  successful.    Instead,  he requested  a \nhearing  on  his claim,  in  the  event  that  it  is  not  dismissed,  on  his  entitlement  to \nadditional indemnity benefits. \n After  consideration  of  the  evidence,  I  find  that  while  both  Claimant  and \nRespondents  were  given  reasonable  notice  of  the  motion  to  dismiss  hearing \nunder 11  C.A.R.  §  25-110(d),  he  has  not  yet  abridged  that  rule.    The  Motion  to \nDismiss is thus denied. \n\nPAYNE – H306935 \n \n7 \n \n Prehearing  questionnaires  will  be  immediately  issued  to  the  parties;  and \nthis claim will proceed to a full hearing on the merits. \nCONCLUSION \n Based  on  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above, \nRespondents’ Motion to Dismiss is hereby respectfully denied. \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. H306935 JAMES T. PAYNE, EMPLOYEE CLAIMANT NUCOR STEEL OF ARK., EMPLOYER RESPONDENT ARCH INDEMN. INS. CO., CARRIER RESPONDENT OPINION FILED MAY 5, 2026 Hearing before Administrative Law Judge O. Milton Fine II on May 1, 2026, in Jonesboro, Craighead County, Ar...","fetched_at":"2026-05-19T22:29:46.698Z","links":{"html":"/opinions/alj-H306935-2026-05-05","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Payne_James_H306935_20260505.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}