{"id":"alj-H402162-2025-03-21","awcc_number":"H402162","decision_date":"2025-03-21","opinion_type":"alj","claimant_name":"Scarlett Acuna","employer_name":"Aldi, Inc","title":"ACUNA VS. ALDI, INC. AWCC# H402162 March 21, 2025","outcome":"dismissed","outcome_keywords":["dismissed:2","granted:1","denied:2"],"injury_keywords":["back","strain"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/ACUNA_SCARLETT_H402162_20250321.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ACUNA_SCARLETT_H402162_20250321.pdf","text_length":6364,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H402162 \n \nSCARLETT R. ACUNA, EMPLOYEE        CLAIMANT \n \nALDI, INC. EMPLOYER                          RESPONDENT \n \nINDEMNITY INS. CO. OF NORTH AMERICA/ \nBROADSPIRE SERVICES, CARRIER/TPA          RESPONDENT  \n \n \nOPINION FILED 21 MARCH 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 5 March 2025 in Little Rock, Arkansas. \n \nThe pro se claimant failed to appear. \n \nLedbetter, Arnold, Cogbill & Harrison, Mr. Scott Zuerker, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 5 March 2025. This case relates to an accepted compensable injury \nsustained on or about 26 January 2024. The hearing record consisted of: Respondents’ \nExhibit No 1 (their motion), Respondents’ Exhibit No 2 (the 22 January 2025 hearing notice \nletter), and Respondents’ Exhibit No 3 (the 20 February 2025 hearing notice letter). I have \nblue-backed the First Report of Injury, two AR-2 Forms, a one-page letter from the \nclaimant, and a returned Certified Letter to this opinion. In accordance with Sapp v. Tyson \nFoods, Inc., 2010 Ark. App. 517, 2010 Ark. App. LEXIS 549, these documents are being \nserved on the parties in conjunction with this opinion. \nA First Report of Injury was filed on 29 March 2024, indicating a lower back strain. \nOn 3 April 2024, the respondents filed a Form AR-2 in which they represented that they \nhad accepted the injury as compensable and were paying benefits. On 10 May 2024, the \n\nACUNA- H402162 \n2 \n \nclaimant filed a letter that stated, “I am requesting a hearing.” An amended Form AR-2\n1\n \nwas also filed on 10 May 2024 noting adjustments to the average weekly wage and \ntemporary total disability (TTD) benefit rate. As noted above, those forms and the \nclaimant’s letter are blue-backed to this opinion. \nOn 11 November 2024, the respondents filed the immediate motion seeking a \ndismissal of the claim for want of prosecution, citing Ark. Code Ann. § 11-9-702(a)(4) (Repl. \n2012) and AWCC Rule 099.13. Therein, they argued that more than six months had passed \nwithout a bona fide request for a hearing on an issue ripe for litigation. They also argued \nthat the claimant’s failure to appear via telephone for a prehearing conference that was \nscheduled for 1 October 2024 was evidence of her lack of prosecuting a claim. Additionally, \nthey argued that the claimant failed to file a Form AR-C, the means by which formal claims \nfor benefits are made to the AWCC.   \n Notice of the respondents’ motion was sent to the claimant, consistent with AWCC \npractices, via First Class Mail and Certified Mail, on 11 December 2024. After no response \nor objection was received by my office, a notice of a hearing on that motion was sent in the \nsame fashion on 22 January 2025. The hearing was originally set for 19 February 2025; but \nit was canceled and rescheduled due to inclement weather. Notice of the rescheduled \nhearing was sent on 20 February 2025, resetting the date for 5 March 2025. When mailings \nare returned to the AWCC as not accepted or undeliverable, those mailings are appended to \nthe claim’s file. This file includes a return of the certified letter from 22 January 2025, \nwhich I have also blue-backed to this opinion. \n \n \n \n1\n The box indicating “Initial Filing” was checked in error on the form. \n\nACUNA- H402162 \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Having reviewed the record as a whole, which includes the exhibits admitted into \nevidence at the hearing and the documents blue-backed to this opinion, I hereby make the \nfollowing findings of fact and conclusions of law in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2021): \n 1. The AWCC has jurisdiction over this matter. \n 2. The claimant has not filed a Form AR-C in connection with this matter. \n 3. No other filings constitute a claim for additional benefits under § 11-9-702(c). \n4. The respondents’ motion to dismiss must be denied because no claim exists \nthat is subject to dismissal. \n \nADJUDICATION \nThe respondents appeared on 5 March 2025, presented their motion, and offered \nsupporting evidence into the record. Having reviewed the claimant’s file, the respondents \ncorrectly state that no Form AR-C has been filed in this case. A respondent-employer’s First \nReport of Injury is not sufficient to instigate a claim for initial benefits on the claimant’s \nbehalf. The Court of Appeals has held, however, that communication with the AWCC that \nis specific to a particular claim may be sufficient to serve as a claim, even in the absence of \na Form AR-C. See Garrett v. Sears, Roebuck & Co. 43 Ark. App. 37, 858 S.W.2d 146 (1993) \n(citing Cook v. Southwestern Bell Telephone Co., 21 Ark. App. 29, 727 S.W.2d 862 (1987). \nClaims for additional compensation, though, are controlled by § 11-9-702(c), which states: \nA claim for additional compensation must specifically state that it is a claim \nfor additional compensation. Documents which do not specifically request \nadditional benefits shall not be considered a claim for additional \ncompensation.  \n \n (Emphasis added) See White Cty. Judge v. Menser, 2020 Ark. 140, 597 S.W.3d 640.  \n\nACUNA- H402162 \n4 \n \nThe forms and the claimant’s letter (which simply stated “I am requesting a hearing”) that \nare blue-backed to this opinion do not demonstrate compliance with the statute’s \nrequirements for filing a claim for additional benefits.  \nUnder § 11-9-705(a)(3), the respondents must prove by a preponderance of the \nevidence that a dismissal should be granted. A “preponderance of the evidence” means the \nevidence having greater weight or greater 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 (1947). \nHere, the evidence preponderates a finding that no filing has been made that constitutes a \nclaim for additional benefits under the requirements noted above. Thus, there is no claim \nthat is subject to dismissal per the respondents’ motion. \nORDER \n Consistent with the findings of fact and conclusions of law set forth above, the \nMotion to Dismiss is hereby DENIED. \nSO ORDERED.  \n    \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H402162 SCARLETT R. ACUNA, EMPLOYEE CLAIMANT ALDI, INC. EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA/ BROADSPIRE SERVICES, CARRIER/TPA RESPONDENT OPINION FILED 21 MARCH 2025 Heard before Arkansas Workers’ Compensation Commission (AWCC) Adminis...","fetched_at":"2026-05-19T22:42:49.699Z","links":{"html":"/opinions/alj-H402162-2025-03-21","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/ACUNA_SCARLETT_H402162_20250321.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}