CLAIM NO. E912139
Before the Arkansas Workers’ Compensation Commission
ORDER FILED AUGUST 29, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE H. OSCAR HIRBY, Attorney at Law, Little Rock, Arkansas.
Respondents represented by HONORABLE MICHAEL J. DENNIS, Attorney at Law, Pine Bluff Arkansas.
Decision of the Administrative Law Judge: Vacated and remanded.
ORDER
The claimant appeals an Order of Dismissal filed by the Administrative Law Judge on April 26, 2001. The Order filed by the Administrative Law Judge was purportedly filed pursuant to Commission Rule 13 without any response from the claimant and without advance notice to the claimant’s attorney from the Administrative Law Judge that a ruling on the respondents’ motion was imminent. The claimant asserts on appeal that the claimant was in fact entitled to notice and an opportunity for a hearing pursuant to Ark. Code Ann. § 11-9-702(a)(4) or (d).
As an initial matter, we note that the Commission has previously found that Ark. Code Ann. § 11-9-702(d) and Commission Rule 13 apply under different circumstances and require different minimum procedural guarantees. Compare, Bruce Christopher v.Fisher Trucking, Full Workers’ Compensation Commission, Opinion filed October 23, 1991 (W.C.C. No. D814550); Shirley Olsen v.Cannon Express, Full Workers’ Compensation Commission, Opinion filed November 20, 1996 (W.C.C. No. E407009); Brenda Bennett v.Earth Grains at Little Rock, Full Workers’ Compensation Commission, Opinion filed December 18, 1996 (W.C.C. No. E500644).
There was no record prepared by the Administrative Law Judge in relation to the respondent’s motion and the Administrative Law Judge’s associated order. Therefore, there is no record before us from which to determine whether or not a bonafide request for a hearing was ever made within six months after the filing of the claimant’s claim for additional compensation. Consequently, we make no finding as to whether or not the respondent’s motion would properly be filed pursuant to Ark. Code Ann. § 11-9-702(d) or instead pursuant to Commission Rule 13. Consequently, we also make no findings at this time as to exactly what procedural protection the claimant would be entitled to with respect to the respondent’s motion. However, we note in passing that the respondent’s brief on appeal does not identify any relevant facts in this case indicating why the respondent’s motion is properly considered under Rule 13 rather than under the more specific procedures of Ark. Code Ann. § 11-9-702(d) (i.e., a hearing).
The claimant asserts on appeal that the Administrative Law Judge denied her notice and an opportunity for a hearing in entering an Order of Dismissal on April 26, 2001. We vacate the Administrative Law Judge’s April 26, 2001 Order of Dismissal and remand this case for additional proceedings consistent with the procedures discussed in Olsen, Bennett, and Christopher. We note from the Commission file that multiple Administrative Law Judges have handled various matters in this case, and we note that the claimant’s attorney objects to Judge Hogan presiding further in this case. We direct the Clerk of the Commission to re-assign this case to the appropriate Administrative Law Judge, whether Judge Hogan or otherwise, pursuant to the Clerk’s standard case assignment procedure.
For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. §11-9-715 (Repl. 1996).
IT IS SO ORDERED.
________________________________ ELDON F. COFFMAN, Chairman
________________________________ MIKE WISON, Commissioner
________________________________ SHELBY W. TURNER, Commissioner