{"id":"full_commission-G908137-2024-01-09","awcc_number":"G908137","decision_date":"2024-01-09","opinion_type":"full_commission","claimant_name":"Lexington Arthur","employer_name":"Staffmark Investments, LLC","title":"ARTHUR VS. STAFFMARK INVESTMENTS, LLC AWCC# G908137 JANUARY 9, 2024","outcome":"dismissed","outcome_keywords":["dismissed:3","denied:1"],"injury_keywords":["shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Arthur_Lexington_G908137_20240109.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Arthur_Lexington_G908137_20240109.pdf","text_length":20846,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G908137 \n \nLEXINGTON S. ARTHUR, \nEMPLOYEE \n \nCLAIMANT \nSTAFFMARK INVESTMENTS, LLC,  \nEMPLOYER \n \nRESPONDENT \nINDEMNITY INS. CO. OF NORTH AMERICA/ \nCCMSI, INSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JANUARY 9, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE JARROD S. PARRISH, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Vacated. \n \n \n OPINION AND ORDER \nThe claimant appeals an ORDER OF DISMISSAL WITHOUT \nPREJUDICE FILED JULY 12, 2023.  The Full Commission vacates the \nadministrative law judge’s dismissal, and we remand for further \nproceedings.   \nI.  HISTORY \n The record indicates that Lexington Arthur, now age 25, was hired by \nthe respondents, Staffmark Investments, LLC on September 17, 2019.  The \nrecord contains a FIRST REPORT OF INJURY OR ILLNESS prepared \nDecember 16, 2019.  The FIRST REPORT OF INJURY OR ILLNESS \n\nARTHUR - G908137  2\n  \n \n \nindicated that the claimant sustained a “Crushing injury to left forearm” on \nDecember 10, 2019.  The FIRST REPORT indicated, “Left forearm caught \nin auger.”   \n A Form AR-2, EMPLOYER’S INTENT TO ACCEPT OR \nCONTROVERT CLAIM dated December 16, 2019 indicated that the \nrespondents “Accepted Left Forearm Injury.” \n Dr. John W. Bracey reported on June 30, 2021: \nPatient is a 23-year-old returns today for follow-up evaluation \nof severe left upper extremity injury.  This was a bur (sic) \nrelated crush avulsion injury when his upper extremity was \ncaught in an auger.  He underwent multiple surgeries \nincluding revascularization by the vascular surgery team, soft \ntissue coverage, and soft tissue repairs.  His last surgery was \non 12/16/2019.   \nOverall he has done very well.  He reports that he is not really \n[having] any pain.  He continues to have some limitations in \nfunction but the (sic) relatively mild.  He is working without \nrestrictions and not having any difficulty.... \nToday I had a very long discussion with the patient.  We again \ndiscussed that he had a very severe injury.  Despite the \nseverity he has done excellent job of regaining function.  He \nhas been very dedicated with therapy that is (sic) resulted in \ngood overall function.  He still has some limitations particularly \nregards to his loss of strength.  He also has some mild loss of \nrange of motion....I do believe he is at maximal medical \nimprovement.  I do believe he can continue working without \nrestrictions he was given the today (sic).  Will therefore \nproceed with his final rating using the Cassat evaluation of \npermanent impairment, 4\nth\n edition....due to the work related \ninjury there is a 30% impairment to the left upper extremity.   \n \n Dr. Bracey’s impression was “Status post surgical treatment left \nupper extremity crush avulsion injury.”   \n\nARTHUR - G908137  3\n  \n \n \n Dr. Mohammed M. Moursi, Division of Vascular & Endovascular \nSurgery, University of Arkansas for Medical Sciences, stated on July 14, \n2021, “From a Vascular Surgery standpoint, Lexington Arthur is cleared for \nwork with no restrictions.  He should continue vascular lab surveillance for \nlife.”     \n The claimant filed a Form AR-C, CLAIM FOR COMPENSATION on \nJanuary 13, 2022.  The ACCIDENT INFORMATION section of the Form \nAR-C indicated that the Date of Accident was December 10, 2019, and the \ninjury was described:  “Left arm caught in auger causing multiple injuries \nfrom fingers to bicep resulting in surgeries, vascular grafts, and months of \nrehab and therapy returning for visits and ultrasound on the graft.”  The \nCLAIM INFORMATION section of the Form AR-C indicated that the \nclaimant claimed “additional” benefits, specifically “Additional Medical \nExpenses.”   \n The claimant filed another Form AR-C, CLAIM FOR \nCOMPENSATION, on May 17, 2022.  The CLAIM INFORMATION section \nof the Form AR-C indicated that the claimant claimed “additional” benefits, \nspecifically “Additional Medical Expenses.” \n A Senior Claims Examiner with the third-party administrator informed \nan employee with the Commission on May 25, 2022, “We are in receipt of \nyour notice dated May 17, 2022.  The aforementioned claim was accepted \n\nARTHUR - G908137  4\n  \n \n \nas compensable and all appropriate medical and indemnity benefits due \nhave been paid.”  \n On or about November 14, 2022, the respondents served on the \nclaimant a MOTION TO DISMISS FOR FAILURE TO PROSECUTE.  The \nrespondents stated: \n1.  This claim involves an injury which occurred on or about \n12/10/19.  Respondents will stipulate that an Employer-\nEmployee relationship existed on that date.  More than six \nmonths have passed since Claimant filed an AR-C with the \nCommission.  Claimant has not sought any type of bona fide \nhearing before the Workers’ Compensation Commission over \nthe last six months.   \n2.  Rule 099.13 of the Arkansas Workers’ Compensation \nCommission provides that upon application by either party for \na dismissal for failure to prosecute, the Commission may, \nafter reasonable notice to all parties, enter an order \ndismissing the claim. \n3.  Ark. Code Ann. §11-9-702 provides for dismissal if no bona \nfide request for a hearing has been made within six (6) \nmonths of the filing of a claim.   \n4.  In the event Claimant objects to the dismissal but does not \nrequest a hearing on the merits, Respondents request a \nhearing on the Motion to Dismiss.   \n \n An administrative law judge corresponded with the claimant on \nNovember 17, 2022: \nA Motion to Dismiss has been filed for failure to diligently \nprosecute or pursue this claim. \nIf you wish to respond to this Motion or request a hearing, \nplease contact my office, in writing, within twenty (20) days, \nTuesday, December 6, 2022.  Failure to respond may result in \nthe dismissal of this claim.   \n \n\nARTHUR - G908137  5\n  \n \n \n The claimant corresponded with the administrative law judge on \nNovember 29, 2022: \n  Dear Sir: \nEnclosed is the AR-C to request continuance of my workers \ncompensation claim due to additional medical expenses.  The \nemployer is aware that I have a lifetime of medical procedures \nrequired due to my workplace injuries.  It is also noted in my \nmedical records. \nCompliance with completion of AR-C every six months is \ndifficult for me.  I regret if I was late with my November 2022 \nsubmission. \nIt is my desire that the motion to be dismissed be denied on \nmy need for additional medical expenses.      \n \n The claimant filed a third Form AR-C, CLAIM FOR \nCOMPENSATION on November 30, 2022.  The ACCIDENT \nINFORMATION section of the Form AR-C indicated that the Date of \nAccident was in December 2019, and the claimant appeared to write, \n“Auger caught glove and pulled arm in up to shoulder resulting in multiple \nlacerations and artery severing in upper left arm.”  The CLAIM \nINFORMATION section of the Form AR-C indicated that that the claimant \nclaimed entitlement to “additional” benefits, specifically, “Additional Medical \nExpenses.”   \n The respondents’ attorney corresponded with the administrative law \njudge on December 1, 2022: \nI have received a copy of the claimant’s November 29, 2022 \ncorrespondence to you indicating an objection to the dismissal \nrequest that I’ve made in this matter.  Your Honor, medical \nexpenses are continuing to be paid with regard to this claim.  \n\nARTHUR - G908137  6\n  \n \n \nThere are no benefits or issues that are outstanding or that \nwarrant litigation.  A formal hearing has not been requested.  \nIn light of this, Respondents request that a hearing be \nscheduled on the dismissal so that we can close the litigation \naspect of this file.  That will have no bearing on Mr. Arthur’s \ncontinued medical care so long as the same is reasonable \nand necessary.   \n \n The record contains an undated letter from Dr. Moursi: \n  To Whom It May Concern, \nArthur Lexington, date of birth 4/11/98, had a left brachial \nartery repair by Dr. Mohammed Moursi at UAMS in 2019.  He \nis currently a vascular lab surveillance patient, and receives \nan ultrasound yearly. \nIf you have any questions, please call the UAMS Vascular \nSurgery department at (501) 686-6176.   \n \n A hearing was held on January 4, 2023.  The respondents’ attorney \nargued, among other things, “There’s been no prosecution in this case \nsince these multiple Form C filings.  Therefore, Respondents respectfully \nrequest that you dismiss the case, both under §11-9-702 and Rule 13 of the \nCommission’s rules for failure to prosecute.”   \n The claimant stated that he filed Forms AR-C for purposes of the \nstatute of limitations.  The administrative law judge examined the pro se \nclaimant: \nJUDGE PICKENS:  And my understanding is, again, that you \nare objecting to the motion because as far as you’re \nconcerned, there are some outstanding issues that you need \nto address with Mr. Parrish and his client.  Is that correct? \nMR. L. ARTHUR:  That is correct.  And we also do have an \nupcoming appointment with the vascular lab once again, \nso....Dr. Moursi did warn me of that – that I will need to have \n\nARTHUR - G908137  7\n  \n \n \nultrasounds to monitor the artery that they took from my leg \nand put into my, you know, my arm.   \n \n The respondents’ attorney cross-examined the claimant: \nQ.  Mr. Arthur, you mentioned an upcoming vascular lab \nappointment.  When is that appointment? \nA.  That’s Friday the 6\nth\n. \nQ.  Okay.  Can you agree with me that you don’t have any \nevidence of any bills that have been submitted to the Work \nComp adjuster that have been denied in this case?  Is that \nright? \nA.  Uh, I don’t believe anything has been denied.   \nQ.  Okay. \nA.  I just know we have that one outstanding balance. \nQ.  Okay.  And you’re not requesting a hearing here today? \nA.  Uh, not today, no.   \n \n The administrative law judge re-examined the claimant: \nJUDGE PICKENS:  Mr. Parrish asked you if you were \nrequesting a hearing here today, and he didn’t – I wasn’t sure \nif you understood that to mean requesting a hearing on the \nmedical issues today or a hearing at some point in the future. \nMR. L. ARTHUR:  Um, I – I guess we can do it at some point \nin the future.  I’m not sure what –  \nJUDGE PICKENS:  Are you requesting a hearing at some \npoint in the future? \nMR. L. ARTHUR:  Yes.   \n \n The administrative law judge filed an opinion on January 9, 2023 and \nfound in pertinent part: \n2.  The ALJ will hold in abeyance a decision on the \nrespondents’ subject motion to dismiss without prejudice for a \nperiod of 45 days, or until Monday, February 20, 2023 (since \n45 days from the hearing date falls on a Saturday). \n3.  The parties have 45 days from the hearing date, or until \nMonday, February 20, 2023, to obtain any and all additional \ninformation they require and to attempt to resolve any and all \noutstanding issues, if they remain. \n\nARTHUR - G908137  8\n  \n \n \n4.  If, after the expiration of this 45-day time-period the \nclaimant does not request, in writing (with a copy to the \nrespondents’ attorney, or course) a hearing before the \nCommission and advise both the Commission and the \nrespondents exactly what specific issues he believes are ripe \nfor a hearing, the ALJ will grant the respondents’ motion to \ndismiss filed November 14, 2022, without prejudice, and \nwithout the necessity of either the respondents filing another \nmotion, and without holding another hearing on the motion.   \n \n The administrative law judge subsequently entered an ORDER OF \nDISMISSAL WITHOUT PREJUDICE FILED JULY 12, 2023.  The \nadministrative law judge concluded: \nHaving given the parties significantly more time to comply with \nthe terms of the attached order filed January 12, 2023, that \napplied to them, and pursuant to the attached order filed \nJanuary 12, 2023, this claim hereby is dismissed without \nprejudice to its refiling pursuant to the deadlines prescribed by \nArk. Code Ann. §11-9-702(a)(4)(2023 Lexis Replacement), \nand Commission Rule 099.13 (2023 Lexis Repl.). \nThis Order shall not be construed to prohibit the claimant, his \nattorney of record, any attorney he may retain in the future, or \nanyone acting legally and on his behalf from refiling the claim \nif it is refiled within the applicable time periods prescribed by \nArk. Code Ann. §11-9-702(a) and (b).   \n \n The claimant appeals to the Full Commission. \nII.  ADJUDICATION \n Ark. Code Ann. §11-9-702(Repl. 2012) provides, in pertinent part: \n  (b)  TIME FOR FILING ADDITIONAL COMPENSATION.... \n(d)  If within six (6) months after the filing of a claim for \nadditional compensation no bona fide request for a hearing \nhas been made with respect to the claim, the claim may, upon \nmotion and after hearing, if necessary, be dismissed without \nprejudice to the refiling of the claim within the limitation period \nspecified in subsection (b) of this section.   \n\nARTHUR - G908137  9\n  \n \n \n \n Commission Rule 099.13 provides, in pertinent part: \nUpon meritorious application to the Commission from either \nparty in an action pending before the Commission, requesting \nthat the claim be dismissed for want of prosecution, the \nCommission may, upon reasonable notice to the parties, enter \nan order dismissing the claim for want of prosecution.   \n \n In the present matter, the Full Commission vacates the \nadministrative law judge’s dismissal of the claim and we remand for further \nproceedings. \n The record indicates that the claimant became employed with the \nrespondents in September 2019.  The record indicates that the claimant \nsustained a serious work-related injury on December 10, 2019.  The \nclaimant’s left forearm was pulled into an auger.  The Full Commission \nnotes that the respondent-carrier “accepted” the claim for medical \ntreatment, but there has never been a stipulation of compensability.  Dr. \nMoursi at UAMS stated in July 2021, “He should continue vascular lab \nsurveillance for life.”     \n The claimant filed Forms AR-C claiming entitlement to additional \nmedical benefits on January 13, 2022, May 17, 2022, and November 30, \n2022.  The last Form AR-C filing was after the respondents filed a Motion to \nDismiss for Failure to Prosecute.   \n A hearing was held at the respondents’ initiative on January 4, 2023.  \nThe claimant, then pro se, was unsure with to regard to whether or not he \n\nARTHUR - G908137  10\n  \n \n \nrequested a hearing.  Yet the Full Commission reiterates the following \nportion of the administrative law judge’s examination of the claimant:   \nJUDGE PICKENS:  Are you requesting a hearing at some \npoint in the future? \n  MR. L. ARTHUR:  Yes.   \n \n This colloquy of record plainly shows that the claimant timely \nrequested a hearing within six months of his last Form AR-C filing in \naccordance Ark. Code Ann. §11-9-702(b)(d)(Repl. 2012).  The claimant \ntestified on January 4, 2023, well within six (6) months after the Form AR-C \nfiled on November 30, 2022, that he requested a hearing.  The Full \nCommission finds that the claimant made a timely “bona fide request for a \nhearing” in accordance with Ark. Code Ann. §11-9-702(b)(d)(Repl. 2012).     \n The purpose of Commission Rule 099.13 is to permit the claimant to \nresist dismissal of the claim and to show, if he can, why the application for \ndismissal is without merit.  Dura Craft Boats, Inc. v. Daugherty, 247 Ark. \n125, 444 S.W.2d 562 (Ark. 1969).  In the present matter, the respondents \nare asking the Commission to dismiss a claim while they are still \npurportedly paying medical benefits provided in connection with the work-\nrelated injury, for which injury they have not formally stipulated to \ncompensability.  The claimant stated at hearing that at least one of his \nmedical bills has not been paid by the respondent-carrier.  The claimant in \nthe present matter sustained a serious injury at work, apparently underwent \n\nARTHUR - G908137  11\n  \n \n \nmultiple surgeries, and has been assigned a permanent anatomical \nimpairment.  The record does not clearly show whether the respondents \nhave paid a permanent rating.   \n The Full Commission therefore vacates the administrative law \njudge’s dismissal of the claim.  We remand the matter to the administrative \nlaw judge for consideration of the claimant’s entitlement to additional \nmedical treatment, including unpaid medical bills and any other benefits to \nwhich the claimant may be entitled.  The Full Commission strongly advises \nthe claimant to timely submit evidence in accordance with Ark. Code Ann. \n§11-9-705(c)(2)(A)(Repl. 2012).   \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \n I must respectfully dissent from the Majority’s finding that the \nAdministrative Law Judge’s dismissal of this claim should be vacated and \nthe matter be remanded to the Administrative Law Judge for consideration \nof the claimant’s entitlement to additional medical treatment including \n\nARTHUR - G908137  12\n  \n \n \nunpaid medical bills and other benefits to which the claimant may be \nentitled. \n \n The Act provides for the dismissal of claims if \n \nwithin six (6) months after the filing of a claim for \nadditional compensation no bona fide request \nfor a hearing has been made with respect to the \nclaim, the claim may, upon motion and after \nhearing, if necessary, be dismissed without \nprejudice to the refiling of the claim within the \nlimitation period specified in subsection (b) of \nthis section. \n \nArk. Code ann. § 11-9-702(d). \n \nThe Commission, therefore, has the authority to \n \n[u]pon meritorious application to the \nCommission from either party in an action \npending before the Commission, \nrequesting that the claim be dismissed for \nwant of prosecution, the Commission \nmay, upon reasonable notice to the \nparties, enter an order dismissing the \nclaim for want of prosecution. \n \nCommission Rule 099.13. \n \nThis matter originated when the claimant sustained a left forearm \ninjury on December 10, 2019.  The respondents accepted this claim as \ncompensable on December 16, 2019, and the claimant filed subsequent \nForms AR-C on January 13 and May 17, 2022.  However, beyond \nsubmitting these forms to the Commission, the claimant took no further \nsteps to pursue this claim, and no hearing request was ever filed.  Due to \n\nARTHUR - G908137  13\n  \n \n \nthis want of prosecution, the respondents filed a Motion to Dismiss on \nNovember 14, 2022.  In response, the claimant filed a third Form C on \nNovember 30, 2022, requesting additional medical benefits.  No hearing \nrequest was made by the claimant. \nA dismissal hearing was held on January 4, 2023,  and the claimant \ntestified that he had not filed for any form of prosecution simply because \n“we believed at that time that everything was paid up to date.  Uh, therefore, \nwe did not pursue any form of a hearing or other legal action followed, \nsimply because of that.”  (Hrng. Tr, P. 11).  The claimant later testified that \nhe believed no bills had been submitted and denied. (Hrng. Tr, P. 24). \nWhen asked directly at the hearing on January 4, 2023 if he was requesting \na hearing, the claimant stated “Uh, not today, no.” (Hrng. Tr, P. 24). \nAfter the dismissal hearing, the ALJ ruled that he would hold his \ndecision in abeyance for 45 days or until Monday, February 20, 2023 (since \n45 days from the date of the hearing falls on a Saturday).  During this \nperiod, the claimant retained Mr. Gary Davis to represent him; however, to \ndate, no hearing request has been submitted.  The Commission has long \nheld that   \nThe fact that the filing of a claim tolls the \nstatute of limitations does not, in itself, \njustify the filing of claims where no \njusticiable controversy exists or justify \nallowing claims to remain open where all \njusticiable controversies have been \n\nARTHUR - G908137  14\n  \n \n \nresolved. To do so would be contrary to \nthe purposes underlying the statute of \nlimitations. \n \nJohnson v. Triple T Foods, 55 Ark. App. 83, 929 S.W.2d 730, 731 (1996). \n \nIn the case at bar, the claimant has failed to identify any justiciable \nissue and has, in fact, agreed that no bona fide request for a hearing has \nbeen made.  By the Majority’s own admission, the claimant has merely \nstated that he may request a hearing at some point in the future.  (Hrng. Tr., \nPp. 26-27).  To date, no request has been made and no controversies have \nbeen identified.  The claimant has wholly failed to provide any justification \nwhy his claim should remain open. \nAccordingly, for the reasons stated above, I respectfully dissent. \n  \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G908137 LEXINGTON S. ARTHUR, EMPLOYEE CLAIMANT STAFFMARK INVESTMENTS, LLC, EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA/ CCMSI, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY 9, 2024","fetched_at":"2026-05-19T22:29:46.021Z","links":{"html":"/opinions/full_commission-G908137-2024-01-09","pdf":"https://labor.arkansas.gov/wp-content/uploads/Arthur_Lexington_G908137_20240109.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}