{"id":"alj-H307469-2024-06-27","awcc_number":"H307469","decision_date":"2024-06-27","opinion_type":"alj","claimant_name":"Gregory Mckillion","employer_name":null,"title":"McKILLION VS. RAZORBACK CONCRETE CO.AWCC# H307469June 27, 2024","outcome":"dismissed","outcome_keywords":["dismissed:4"],"injury_keywords":["repetitive","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/McKillion_Gregory_H307469_20240627.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"McKillion_Gregory_H307469_20240627.pdf","text_length":16547,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H307469 \n \n \nGREGORY L. McKILLION, EMPLOYEE CLAIMANT \n \nRAZORBACK CONCRETE CO., INC., \n EMPLOYER  RESPONDENT \n \nXL SPECIALTY INS., \n CARRIER RESPONDENT \n \n \nOPINION FILED JUNE 27, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on June 7, 2024, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by Mr.  Eric  Newkirk,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n On June  7,  2024,  the  above-captioned  claim  was  heard  in Jonesboro, \nArkansas.  A prehearing conference took place on April 1, 2024.  The Prehearing \nOrder  entered  that  same  day  pursuant  to  the  conference  was  admitted  without \nobjection as Commission Exhibit 1.  At the hearing, the parties confirmed that the \nstipulations,  issues,  and  respective  contentions  were  properly  set  forth  in  the \norder. \nStipulations \n The  parties  discussed  the  stipulations  set  forth  in  Commission  Exhibit  1.  \nThey are the following, which I accept: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n\nMcKILLION – H307469 \n2 \n \n2. The   employee/employer/carrier   relationship   existed   among   the \nparties on November 10, 2022, and at all other relevant times. \n3. Respondents have controverted this claim in its entirety. \nIssues \n The  parties  discussed  the  issues  set forth  in  Commission  Exhibit  1.   The \nfollowing were litigated: \n1. Whether  Claimant  sustained  a  compensable  injury  in  the  form  of \nright cubital tunnel syndrome. \n2. Whether Claimant is entitled to reasonable and necessary medical \ntreatment. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n Claimant: \n1. Claimant contends  that  he suffered a  compensable injury  in  the \nform  of  right  cubital  tunnel  syndrome,  and  that  he  is  entitled  to \nreasonable   and   necessary   treatment   of   it   at   the   expense   of \nRespondents. \nRespondents: \n1. Respondents   contend   that Claimant   cannot   establish   a   right \ncarpal/cubital   tunnel   injury   on   or   about   November   10,   2022.  \nRespondents   have   no   knowledge   whatsoever   of   a   purported \n\nMcKILLION – H307469 \n3 \n \nincident   on   November   10,   2022,   and   assert   that   no   work \nevent/incident  occurred  on  that  date.    Furthermore,  to  the  extent \nthat  Claimant  is  alleging  a  gradual  onset  cubital  tunnel  claim \nculminating  in  such  an  injury,  Respondents  assert  that  his  job \nduties  were  neither  rapid  nor  repetitive,  and  that  the  major  cause \nelement cannot be met, either. \n2. Additionally,  Respondents  are  unaware  of any  objective  medical \nfindings  of  a  right  carpal  tunnel  injury.    They  further  assert  that,  to \nthe  extent  any  objective  medical  findings  do  exist  establishing \neither  a  right  carpal  or  right  cubital  tunnel  injury,  that  any  such \nfindings  are  traceable  to  pre-existing  abnormalities  and are not  in \nany   way   work-related   or   causally   connected   to   the   work \nenvironment sufficient to meet the major cause requirements. \n3. By  way  of  additional  affirmative  defense,  Respondents  assert  that \nthere was no notice of a purported work injury involving the alleged \nright  carpal  tunnel/cubital  tunnel  injury  until  October  30,  2023.  \nThus,  no  benefits  would  be  owed  prior  to  Respondents receiving \nnotice of an alleged incident/event on October 30, 2023. \n4. By  way  of  further  contention,  Respondents  plead  an  offset  for  any \ngroup medical insurance or group short-term disability benefits paid \nto  Claimant  or  on  his  behalf.    They  also  assert  an  offset  for  any \n\nMcKILLION – H307469 \n4 \n \nunemployment  benefits  paid  to  him,  to  the  extent  allowed  under \nArkansas law. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After   reviewing   the   record   as   a   whole,   including   medical   reports, \ndocuments,  and other matters  properly before  the  Commission,  and  having  had \nan  opportunity  to  hear  the  testimony  of  the  claimant  and  to  observe  his \ndemeanor, I hereby make the following findings of fact and conclusions of law in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  stipulations  set  forth  above  are  reasonable  and  are  hereby \naccepted. \n3. Because  the  evidentiary  portion  of  the  hearing  was  not  completed \n(due  to  Claimant’s  expressed  unwillingness  to  continue  with  the \nhearing  while he  was still  on  the  witness  stand),  the  merits  of  the \nsubstantive issues cannot be reached. \n4. Respondents have proven by a preponderance of the evidence that \nthe claim should be dismissed pursuant to AWCC R. 099.13 due to \nClaimant’s expressed  unwillingness  to  continue  with  the  hearing \nwhile  still  on  the  witness  stand,  which  prevented  the  hearing  from \nbeing completed. \n5. This claim is hereby dismissed without prejudice. \n\nMcKILLION – H307469 \n5 \n \n6. Because of the above findings/conclusions, the remaining issues—\nwhether Claimant  sustained a compensable  injury  in  the  form  of \nright   cubital   tunnel   syndrome, and   whether he is   entitled   to \nreasonable  and  necessary  treatment  of this alleged  injury—are \nmoot and will not be addressed. \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness.  Respondents announced at the outset of \nthe  hearing  that  they  were  calling  two  witnesses—Misty  Hammock  and  Greg \nVaught—but  because  the  hearing  was  ended  while  Claimant  was  still  on  the \nwitness stand, these individuals were prevented from testifying. \n In  addition  to  the  Prehearing  Order  discussed  above,  admitted  into \nevidence in this case were the following:  Claimant’s Exhibit 1, a compilation of \nhis medical  records,  consisting of 29 pages; and Claimant’s Exhibit 2, non-\nmedical records, consisting of 13 pages. \nAdjudication \nA. Motion to Dismiss \n During the hearing, Claimant took the witness stand.  Because he had no \nattorney  to  question  him on  direct  examination,  I  conducted  this  portion  of  his \nexamination, asking  questions  that  were  geared  toward  helping  me  to  make \nfindings of fact and conclusions of law on the above-stated issues.  This was in \nkeeping  with  Ark.  Code  Ann. §  11-9-705(a)(1)  (Repl.  2012),  which  provides in \n\nMcKILLION – H307469 \n6 \n \npertinent part that the “Commission . . . may make such investigation or inquiry, \nor  conduct  the  hearing,  in  a  manner  as  will  best  ascertain  the  rights  of  the \nparties.”  Claimant  gave  extensive  testimony  about  the  parts  of  his  job  that  he \ncontended  involved  rapid,  repetitive  motion—and  caused  his  alleged  cubital \ntunnel syndrome.  After he had been on the witness stand for an extended period \nof time, I elected to take a recess in order to conduct a joint petition hearing on \nanother claim, and to give my court reporter a break.  I advised the parties that, \nto  make  better  use  of  the  time  allotted,  I  would  consider  allowing  Claimant \n(subject to objection by Respondents) to testify in a more narrative fashion. \n However, when I got back on the record, the following colloquy took place: \nJUDGE FINE:  Now I want the record to reflect this.  I’m going to—I \nwant  to  advise  you,  Mr.  McKillion,  you’re  still  under  oath  as  a \nwitness.  I need to delve into this.  I don’t want to close the record \nwithout  inquiring  into  this.    I  need  to  make  a  record  on  this.    You \ntold me when we were visiting here in the room when I got back on \nthe bench that—and forgive me, I don’t want to—I can’t quote you \nexactly—but that you didn’t want to pursue this matter any further.  \nWas that—was I correct on that? \n \nCLAIMANT:  Yes, sir.  Yes, sir. \n \nJUDGE FINE:  Okay.  Why is that, why are you no longer pursuing \nthis? \n \nCLAIMANT:  I don’t—I don’t—I just don’t feel like going no more, \nyou know what I mean?  I mean, hell, I can—I was just trying to see \ncould I get workmen’s [sic] comp basically to pay for my surgery.  \nAnd  right  now,  this  is  going  so  long,  I  don’t  feel  like  wasting \nnobody’s time.  I’m just saying—I’m just being honest with you. \n \nJUDGE FINE:  Well, I want to be sure you understand, then. \n \nCLAIMANT:  Yeah, I—I understand exactly what I’m saying— \n\nMcKILLION – H307469 \n7 \n \n \nJUDGE FINE:  Okay. \n \nCLAIMANT:  —and I understand what you [sic].  I’m done. \n \nJUDGE FINE:  All right.  I need you to sit there for a second.  I will \nneed  to  make  a  record  on  this,  okay?    I  want  to  be  sure  you \nunderstand this is your day in court. \n \nCLAIMANT:  Yes. \n \nJUDGE FINE:  Now I will tell you, I made a reference to the parties \nand I don’t recall right at the moment whether it was on or off the \nrecord.    I  know Mr.  Newkirk  advised  me  that  he  thought  this \n[hearing]  would  take  hours  and hours,  and  I did  advise  the  parties \nthat  I  did  not  schedule  this  for  hours  and  hours  and  hours,  I  had \nscheduled it for two-and-a-half hours, and it wasn’t my intent[ion] to \nstay  here  all  day,  and  I  will  still  tell  the  both  of  your  that  is [the \ncase].  Is that statement the reason why you’re doing this? \n \nCLAIMANT:  I’m just done, Your Honor.  That’s all I can tell you. \n \nJUDGE FINE:  Okay. \n \nCLAIMANT:  I’m withdrawing my case. \n \nJUDGE FINE:  All right.  I need you to understand something.  This \nis  your  day  in  court.    If  you  do  this,  and  the  record  is  reflecting \nyou’re saying you’re done, are you will[ing] to end the hearing now? \n \nCLAIMANT:  Yes, sir. \n \nJUDGE  FINE:    All  right.    Now,  if  you  end  the  hearing  now,  Mr. \nNewkirk is being deprived of the opportunity to cross-examine you.  \nDo you understand that?  I’m not even done. \n \nCLAIMANT:  Yes, sir. \n \nJUDGE FINE:  You understand that? \n \nCLAIMANT:  I understand. \n \n\nMcKILLION – H307469 \n8 \n \nJUDGE  FINE:    He  has  witnesses  that  he  wants  to  call.    You \nunderstand if we end the hearing, they don’t get to get called.  Do \nyou understand that? \n \nCLAIMANT:  That’s correct. \n \nJUDGE  FINE:    You  understand,  at  least  from  my  under—what  I \nbelieve  Mr.  Newkirk  is  saying  based  upon  my  conversation  off  the \nrecord—and  I’ll  ask  him  to  confirm—that  if  we  do  this  and  I  go \nahead  and  end  the  hearing  at  your  insistence,  he  is  orally  moving \nfor a dismissal of your claim.  We have a provision on this.  It’s \nCommission Rule 13 that says a claim can be dismissed for want of \nprosecution.    You  understand  that  I  will  very  seriously  consider \ndismissing this if we do this.  Do you understand that? \n \nCLAIMANT:  Yes, I understand. \n \n. . . \n \nJUDGE FINE:  All right.  I will tell the both of you, I want to take a \nlook at the law on this before I rule.  I see no reason that I wouldn’t \ndismiss it based upon what’s happened, based upon the fact that \nthe—is  it  a  fair  statement—and I’m not trying to put words in your \nmouth, Mr. McKillion—are you unwilling to proceed further with this \ntoday? \n \nCLAIMANT:  Yes.  I’m willing—unwilling—I’m willing to—I’m ready \nto go.  I ready to get this over with. \n \nJUDGE  FINE:    All  right.    I’m  going  to  ask  you  one  more  time, \nthough.  Are you unwilling to continue with the hearing today? \n \nCLAIMANT:  Yes, I’m unwilling. \n \nJUDGE FINE:  You’re unwilling.  That’s the word that I need to \nhear, whether it was yes or no. \n \nCLAIMANT:  Yes, yes. \n \nJUDGE FINE:  You’re unwilling.  All right.  Well, what I will do is I’m \ngoing to close the record.  Based upon this, I will tell the parties that \nI will—I will look at this and issue a ruling.  There’s still going to be \na  transcript  prepared  from  today’s  proceedings  with  all  the \n\nMcKILLION – H307469 \n9 \n \nevidence—everything is going to come in—and I will take a second \nlook  at  the  circumstances  on  this  and  decide  how  I’m  going  to \nproceed on this, okay . . . [a]nd with that, I will tell you that I will do \nmy best to expedite a ruling on this based upon what’s arisen. \n \n Arkansas  Code  Annotated § 11-9-705(a)(1) (Repl.  2012), alluded  to \nearlier, provides as follows: \nIn  making  an  investigation  or  inquiry  or  conducting  a  hearing,  the \nWorkers’  Compensation  Commission  shall  not  be  bound  by \ntechnical  or  statutory  rules  of  evidence  or  by  technical  or  statutory \nrules  of  procedure,  except  as  provided  by  this  chapter,  but  may \nmake  such  investigation  or  inquiry,  or  conduct  the  hearing,  in  a \nmanner that will best ascertain the rights of the parties. \n \n Notwithstanding its not being bound by the rules of evidence or procedure, \nthe  Commission must conduct hearings in a manner that promotes “fairness” to \nthe parties.  See Sapp v. Tyson Foods, 2010 Ark. 517, 2010 Ark. App. LEXIS 549.  \nI find that to rule on the merits of this claim based on the incomplete evidentiary \nrecord—lacking  the  complete  testimony  of  Claimant  and  the  testimonies  of \nRespondents’ two witnesses completely—would  unfairly  surprise  and  prejudice \nRespondents. \n Respondents, based on Claimant’s stated unwillingness to continue with \nthe  hearing,  moved  for  a  dismissal  of  his  claim  under AWCC  R.  099.13,  which \nreads: \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 \n\nMcKILLION – H307469 \n10 \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 \nclaims—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 As demonstrated by the foregoing, Claimant without good cause declined \nto litigate the merits of his claim any further after recess of the hearing.  Not only \nwas  his case-in-chief  left incomplete,  but  Respondents  were  left  unable  to \nconduct their  cross-examination of  him  and  call  their  own  witnesses.   The \nevidence  thus establishes  that  Claimant  has  failed  to  prosecute  his claim,  and \nthat reasonable notice of the proceeding was provided to him.  Hence, dismissal \nof  the  instant  claim  is readily justified  under  Rule  13.  Respondents  have  met \ntheir burden of proof on this matter. \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)).  \n\nMcKILLION – H307469 \n11 \n \nRespondents at  the  hearing  asked  for  a  dismissal  with  prejudice,  and  Claimant \nconcurred.   But  based  on  the  foregoing, I find  that  the  dismissal  of  this  claim \nshould be and hereby is entered without prejudice.\n1\n \nB. Remaining Issues \n Because   of   the foregoing,   the   remaining   issues—whether Claimant \nsustained a compensable injury in the form of right cubital tunnel syndrome, and \nwhether  he  is  entitled  to  reasonable  and  necessary  treatment  of  this  alleged \ninjury—are moot and will not be addressed. \nIV.  CONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \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).","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H307469 GREGORY L. McKILLION, EMPLOYEE CLAIMANT RAZORBACK CONCRETE CO., INC., EMPLOYER RESPONDENT XL SPECIALTY INS., CARRIER RESPONDENT OPINION FILED JUNE 27, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on June 7, 2024, in Jonesboro, ...","fetched_at":"2026-05-19T22:53:23.953Z","links":{"html":"/opinions/alj-H307469-2024-06-27","pdf":"https://labor.arkansas.gov/wp-content/uploads/McKillion_Gregory_H307469_20240627.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}