BROWN v. GENERAL MEDICAL CORPORATION, 1999 AWCC 279

CLAIM NOS. E507812, E602825, E307214, E318421

JAMES R. BROWN, EMPLOYEE, CLAIMANT v. GENERAL MEDICAL CORPORATION, EMPLOYER, RESPONDENT NO. 1 and LIBERTY MUTUAL, INSURANCE CARRIER, RESPONDENT NO. 1 and THE TRAVELERS INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT NO. 2 and SECOND INJURY FUND, RESPONDENT NO. 3

Before the Arkansas Workers’ Compensation Commission
ORDER FILED SEPTEMBER 14, 1999

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE H. OSCAR HIRBY, Attorney at Law, Little Rock, Arkansas.

Respondent No. 1 represented by the HONORABLE BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.

Respondent No. 2 represented by the HONORABLE PHILLIP CUFFMAN, Attorney at Law, Little Rock, Arkansas.

Respondent No. 3 represented by the HONORABLE JUDY W. RUDD, Attorney at Law, Little Rock, Arkansas.

Decision of the administrative law judge: Reversed and remanded.

[1] ORDER
[2] The claimant appeals the administrative law judge’s order filed on May 10, 1999, granting Respondent No. 1’s motion to dismiss the claimant’s claim without prejudice. After considering the administrative law judge’s order and the briefs filed by the claimant and Respondent No. 1, we reverse the administrative law judge’s order of dismissal and remand this case for a hearing on the claimant’s pending claim for additional benefits. [3] No record was prepared by the administrative law judge to support the May 10, 1996 order of dismissal. However, the briefs filed by the claimant and Respondent No. 1 make clear that the present claim for additional benefits was originally scheduled for a hearing to be held on June 26, 1998. However, that hearing was canceled at the request of Respondent No. 2, so that the Second Injury Fund could be joined as a party. By letter addressed to counsel for Respondent No. 2 dated June 24, 1998, the administrative law judge allowed the cancellation of the claimant’s requested hearing on June 26, 1998, with the specific instructions by the administrative law judge that:

[O]nce the fund has had a chance to complete discovery, they will be expected to file a pre-hearing questionnaire. At that time, another conference and hearing will be set. . . . Please let me know when you are ready to proceed.

[4] The claimant’s brief to the Full Commission indicates that the claimant was prepared to proceed to a hearing on June 26, 1998, on approximately nine issues relating to additional benefits, and remains ready to do so today if and when the various potential respondents are ready to proceed to a hearing. Under these circumstances, we find that the administrative law judge abused her discretion in granting Respondent No. 1’s motion to dismiss this claim without prejudice. [5] Because we find that the administrative law judge abused her discretion in granting Respondent No. 1’s motion to dismiss this claim without prejudice, we do not reach the claimant’s alternative contentions that the administrative law judge improperly dismissed this claim without a hearing and that Respondent No. 1’s motion to dismiss was granted without proper notice to the claimant’s attorney. [6] This claim is hereby remanded to the administrative law judge to schedule a pre-hearing conference and a hearing on the claimant’s pending claim for additional benefits. [7] IT IS SO ORDERED. [8] _______________________________
ELDON F. COFFMAN, Chairman _______________________________ PAT WEST HUMPHREY, Commissioner [9] Commissioner Wilson dissents.