{"id":"alj-H307249-2024-12-05","awcc_number":"H307249","decision_date":"2024-12-05","opinion_type":"alj","claimant_name":"Jennifer Carter","employer_name":"Baptist Health","title":"CARTER VS. BAPTIST HEALTH AWCC# H307249 December 05, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":["back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Carter_Jennifer_H307249_20241205.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Carter_Jennifer_H307249_20241205.pdf","text_length":7643,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H307249 \n \n \nJENNIFER N. CARTER, EMPLOYEE CLAIMANT \n \nBAPTIST HEALTH, \nSELF-INSURED EMPLOYER RESPONDENT \n \nCLAIMS ADMIN. SVCS., \nTHIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED DECEMBER 5, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on December 5, 2024, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Ms. Melissa  Wood,  Attorney  at  Law, Little  Rock, \nArkansas. \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 December 5, 2024, 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  were Commission Exhibit  1 (see Ark.  Code  Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich  best  ascertains  the  rights  of  the  parties”) and  Respondents’  Exhibit  1, \nforms, pleadings, reports, and correspondence related to this claim, consisting of \n15 and 12 pages, respectively. \n\nCARTER – H307249 \n \n2 \n \n The record shows the following procedural history: \n Per the First Report of Injury or Illness filed on November 7, 2023, Claimant \npurportedly suffered an injury to her lower back at work on September 24, 2023, \nwhile performing a “patient transfer.”  According to the Form AR-2  that  was  filed \non November 8, 2023, Respondents accepted the claim as a medical-only one. \n On November 5, 2023, through then-counsel Mark Alan Peoples, Claimant \nfiled a Form AR-C, requesting the full range of initial benefits in connection with an \ninjury to  her back  that she  allegedly  suffered  at  work  on August  24,  2023.  \nCounsel in an email accompanying this filing stated that he was “not asking for a \nhearing.”  Respondents’ counsel entered their appearance on November 9, 2023. \n Claimant requested a one-time change of physician.  Rosalyn Watts, then-\ndirector  of  the  Commission’s  Medical  Cost  Containment  Division,  entered  a \nChange-of-Physician  Order  on  February  13,  2024,  changing  her  authorized \ntreating  physician  from  OrthoArkansas  to  Dr.  Reza  Shahim,  and  scheduling  an \nappointment for her with Shahim for February 19, 2024. \n On August 19, 2024, Peoples moved to withdraw from his representation of \nClaimant.    In  an  Order  entered  on September  18, 2024, the  Full  Commission \ngranted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nOctober  4,  2024.    On  that  date, Respondents filed  the  instant  motion,  asking  for \ndismissal  of  the  claim under  AWCC  R.  099.13  and  Ark.  Code  Ann. § 11-9-\n\nCARTER – H307249 \n \n3 \n \n702(a)(4)  (Repl.  2012) because “Claimant  has  not  sought  any  type  of  bona  fide \nhearing before the Workers’ Compensation Commission over the last six months.”  \nMy office wrote Claimant on October 9, 2024, asking for a response to the motion \nwithin 20 days.  The letter was sent by first class and certified mail to the Conway, \nArkansas address for  her listed  in  the  file and  on her Form  AR-C.   A “Danielle \nCarter” signed for the certified letter on October 11, 2024; and the first-class letter \nwas  not  returned.   Regardless,  no  response  from her to  the  motion was \nforthcoming.    On October  30,  2024,  a  hearing  on  the Motion to Dismiss was \nscheduled for December 5, 2024, at 12:30 p.m. at the Commission in Little Rock.  \nThe  notice  was  sent  to  Claimant  via  first-class  and  certified  mail to  the  same \naddress as  before.   In  this  instance, Claimant claimed the certified  letter on \nNovember 1, 2024; and the first-class letter was, again, not returned. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \ncounsel and argued for dismissal under the foregoing 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): \n\nCARTER – H307249 \n \n4 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \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 \nher claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim for initial \nbenefits is hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \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 \n\nCARTER – H307249 \n \n5 \n \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 pursue her claim because he has taken no further action in \npursuit  of it (including  appearing  at  the December  5,  2024, hearing  to  argue \nagainst its dismissal)  since the entry  of  the  Change-of-Physician  Order  on \nFebruary 13, 2024.  Thus, the evidence preponderates that dismissal is warranted \nunder  Rule  13.  Because  of  this  finding,  the  argument  made  under § 11-9-\n702(a)(4) will not be addressed. \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).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \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\nCARTER – H307249 \n \n6 \n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for initial benefits 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. H307249 JENNIFER N. CARTER, EMPLOYEE CLAIMANT BAPTIST HEALTH, SELF-INSURED EMPLOYER RESPONDENT CLAIMS ADMIN. SVCS., THIRD-PARTY ADM’R RESPONDENT OPINION FILED DECEMBER 5, 2024 Hearing before Administrative Law Judge O. Milton Fine II on December 5, 2024, in L...","fetched_at":"2026-05-19T22:45:12.164Z","links":{"html":"/opinions/alj-H307249-2024-12-05","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Carter_Jennifer_H307249_20241205.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}