{"id":"alj-H401705-2025-02-04","awcc_number":"H401705","decision_date":"2025-02-04","opinion_type":"alj","claimant_name":"Karisha Brown","employer_name":"Central Ark. Opthalmology","title":"BROWN VS. CENTRAL ARK. OPTHALMOLOGY AWCC# H401705 February 04, 2025","outcome":"dismissed","outcome_keywords":["dismissed:6","granted:1","denied:2"],"injury_keywords":["back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Brown_Karisha_H401705_20250204.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Brown_Karisha_H401705_20250204.pdf","text_length":10559,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H401705 \n \n \nKARISHA BROWN, EMPLOYEE CLAIMANT \n \nCENTRAL ARK. OPTHALMOLOGY, \n EMPLOYER RESPONDENT \n \nUNION INS. CO. OF PROVIDENCE, \n CARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 4, 2025 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on January 30, \n2024, in Little Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Ms. Karen  H.  McKinney,  Attorney  at  Law,  Little \nRock, Arkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  Respondents’ Motion  to \nDismiss.  A hearing on the motion was conducted on January 30, 2024, in Little \nRock, Arkansas.  Claimant appeared in person and testified.  Respondents were \nrepresented at the hearing by Ms. Karen H. McKinney, Attorney at Law, of Little \nRock, Arkansas.  In addition to Claimant’s testimony, the record consists of the \nfollowing exhibit:  Respondents’ Exhibit 1, forms, pleadings, and correspondence \nrelated  to  this  claim, consisting  of eight pages.  Also,  in  order  to  address \nadequately   this   matter   under   Ark.   Code   Ann. § 11-9-705(a)(1)   (Repl. \n2012)(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 forms, pleadings, and correspondence from the Commission’s file on \n\nBROWN – H401705 \n \n2 \nthe claim, along with the post-hearing briefs of the parties, totaling 24 pages.  In \naccordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 Ark. App. \nLEXIS 549, these documents have been served on the parties in conjunction with \nthis opinion. \n The evidence reflects that on March 8, 2024, Claimant filed a Form AR-C, \nalleging  that she was  entitled  to initial medical  and  temporary  partial  disability \nbenefits for her injuries she allegedly suffered on October 17, 2023.  She related: \nAttacked and bitten by Dr. Roza[’]s [b]ig [d]og walking down hallway \nto my desk after delivering patient[’]s to the [d]octor[’]s offices.  Dog \njumped  on  my  back[,]  scratching  me[,]  pushing  me[,]  and  bit  my \nback of [r]ight arm. \n \nPer  the  First  Report  of  Injury  or  Illness  filed  on  March  21,  2024,  Claimant \npurportedly suffered injuries at work on October 17, 2023, while returning patient \ncharts.    According  to  the  Form  AR-2  that  was  also  filed  on  March  21,  2024, \nRespondents controverted the claim in its entirety. \n The  record  reflects  that  no  further  activity  occurred  on  this  claim  until \nOctober  10,  2024,  when  Respondents  filed  the  instant  Motion  to  Dismiss under \nAWCC  R.  099.13  and  Ark.  Code  Ann. § 11-9-702  (Repl.  2012).    Therein,  they \nalleged  that  more  than  six  months  had  elapsed  since  the  filing  the  Form  AR-C \nwithout Claimant requesting a hearing thereon.  The file was reassigned to me on \nOctober   11,   2024;   and on   October   14,   2024, my   office wrote   Claimant, \nrequesting  a  response  to  the  motion  within  20  days.   The  letter  was  sent  to \nClaimant  by  first-class  and  certified  mail  to  the  address  she  listed  on  the  Form \n\nBROWN – H401705 \n \n3 \nAR-C:    1502  Green  Mountain  Drive,  Little  Rock,  Arkansas    72211.    However, \nboth items of correspondence were returned to the Commission with the notation \n“INSUFFICIENT  ADDRESS.”    (Emphasis  in  original)    Unsurprisingly,  no \nresponse from Claimant was forthcoming. \n On  November  6,  2024,  this  hearing  was  initially  scheduled  for  December \n12, 2024, at 9:30 a.m. at the Commission in Little Rock.  The Notice of Hearing \nwas  sent to  Claimant at  the  same  address as  used  previously.   As  before,  both \nthe  certified  and  first-class  letters  were  returned.    On  December  10,  2024,  I \nemailed  Respondents’  counsel  that  the  notations  on  the  returned \ncorrespondence  led  me  to  research  and  confirm  that  Claimant  resided  at  an \napartment  complex,  and  that  her  unit  number  was  172.    For  that  reason,  I \ncanceled the hearing and issued a new 20-day letter with the enhanced address.  \nBut once again, the United States Postal Service returned both the certified and \nfirst-class  letters,  explaining  that  they  were  “NOT  DELIVERABLE  AS \nADDRESSED.”  (Emphasis in original)  Again—unsurprisingly—Claimant did not \nfile the requested response to Respondents’ motion. \n On  December  30,  2024,  the  hearing  on  the  Motion  to  Dismiss  was \nrescheduled for January 30, 2025, at 9:30 a.m. at the Commission in Little Rock.  \nBut in this instance, while the Notice of Hearing was again sent to Apartment 172 \nand the address listed on Claimant’s Form AR-C, the one sent by first-class mail \nmanaged  to  be  delivered  to  her.    She  brought  it  to  the  hearing,  crumpled,  and \n\nBROWN – H401705 \n \n4 \ntestified that it along with a number of other mail items had been delivered to her \nbelatedly en masse. \n The  hearing took  place  as  scheduled.    Both  parties  appeared,  and \nClaimant  testified.  Respondents  argued  for  dismissal  under  both  §  11-9-\n702(a)(4) & (d) (Repl. 2012) and Rule 13. \nII.  FINDINGS 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 Claimant,  I  hereby  make  the  following \nfindings of fact and conclusions of law 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 AWCC R. 099.13. \n3. Respondents have not proven by a preponderance of the evidence \nthat  Claimant  has  failed  to  prosecute this  claim under AWCC  R. \n099.13. \n4. Respondents have not proven by a preponderance of the evidence \nthat  this  claim  should  be  dismissed  under  Ark.  Code  Ann.  §  11-9-\n702(a)(4) (Repl. 2012). \n\nBROWN – H401705 \n \n5 \n5. Respondents have not proven by a preponderance of the evidence \nthat  this  claim  should  be  dismissed  under  Ark.  Code  Ann.  §  11-9-\n702(d) (Repl. 2012). \n6. The Motion to Dismiss is hereby denied. \n7. Claimant has requested a hearing on the issue of her entitlement to \ninitial benefits. \n8. This claim will proceed to a hearing on the merits. \nIII.  DISCUSSION \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  periods  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 \nof  the  claim  within  limitation  periods  specified  in  subsection (b) of \nthis section. \n\nBROWN – H401705 \n \n6 \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 Claimant testified that the reason that she had not requested a hearing on \nher  claim  after  its  filing  was  that  she  was  unaware  that  she  had  to  do  so.    The \nsilence   she   encountered   after   its   filing,   she   surmised,   was   due   to   the \nCommission  being  busy;  she  was  simply  waiting  to  hear  back.    As  for  the \nincomplete address on her Form AR-C, she was unable to explain why she had \n\nBROWN – H401705 \n \n7 \ndone this.  Claimant requested a hearing on her claim, in the event that it is not \ndismissed. \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 Rule 13, she has not yet abridged that rule.  By the same token, I find that \nwhile § 11-9-702(a)(4) & (d) provide that a claim “may” (clearly intending that the \nadministrative  law  judge has  discretion  in  the matter)  be  dismissed  for  failure  to \nrequest a hearing within six months of the filing of the claim, dismissal is not yet \nwarranted here.  The Motion to Dismiss is thus denied. \n Prehearing  questionnaires  will  be  immediately  issued  to  the  parties;  and \nthis matter 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. H401705 KARISHA BROWN, EMPLOYEE CLAIMANT CENTRAL ARK. OPTHALMOLOGY, EMPLOYER RESPONDENT UNION INS. CO. OF PROVIDENCE, CARRIER RESPONDENT OPINION FILED FEBRUARY 4, 2025 Hearing before Chief Administrative Law Judge O. Milton Fine II on January 30, 2024, in Lit...","fetched_at":"2026-05-19T22:43:14.618Z","links":{"html":"/opinions/alj-H401705-2025-02-04","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Brown_Karisha_H401705_20250204.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}