JOHNSON v. TRIPLE T FOODS, INC., 1995 AWCC 10

CLAIM NO. E219745

WAYNE JOHNSON, EMPLOYEE, CLAIMANT v. TRIPLE T FOODS, INC., EMPLOYER, RESPONDENT and CIGNA INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 11, 1995

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

Claimant represented by the HONORABLE JAY N. TOLLEY, Attorney at Law, Fayetteville, Arkansas.

Respondents represented by the HONORABLE ROBERT E. HORNBERGER, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Affirmed in part, vacated and remanded in part.

[1] OPINION AND ORDER
[2] The claimant appeals an order filed by the administrative law judge on July 20, 1994. In that order, the administrative law judge dismissed the claim without prejudice for the want of prosecution. In addition, the respondents’ have filed a motion to dismiss the claimant’s appeal. The Commission has designated certain documents as the record, and those documents have been marked by attaching a blue cover to them.

[3] After giving due consideration to the respondents’ motion, the claimant’s response, and all other matters properly before the Commission, we find that the respondents’ motion must be denied. We also find that the administrative law judge correctly determined that the claim should be dismissed for want of prosecution. However, considering the facts of this claim, we also find that the claim should be dismissed with prejudice and that costs should be assessed against the claimant’s attorney unless cause can be shown indicating that these actions should not be taken. Therefore, we find that the administrative law judge’s order must be vacated to the extent the dismissal is without prejudice, and we find that the claim must be remanded so that a hearing can be held to allow the claimant an opportunity to show cause why the claim should not be dismissed with prejudice and so that claimant’s attorney can be given an opportunity to show cause why costs should not be assessed against him.

[4] Our review of this claim shows that the claimant’s attorney, Jay Tolley, has filed repetitive claims on behalf of the claimant even though he concedes that the claimant is not entitled to any additional compensation. Moreover, this review shows that Mr. Tolley has abused the judicial functions of this Commission by asserting claims even though he concedes that there are no justiciable controversies to adjudicate. On February 22, 1993, the claimant filed a claim seeking compensation for an injury or condition that arose in November of 1992. At the same time that the claim was filed, Mr. Tolley requested a hearing. As a result of this claim and the hearing request, the claim was assigned to an administrative law judge, and prehearing questionnaires and notices scheduling a prehearing conference for April 20, 1993, were mailed to the parties by the Commission. In addition, the respondents’ counsel began preparing for a hearing, and the respondents filed responses to the prehearing questionnaire through their attorney. However, on April 19, 1993, the prehearing conference was being canceled at attorney Tolley’s request. Mr. Tolley indicated that he canceled the prehearing conference because the claimant was receiving, or had received, all benefits that he was entitled to receive.

[5] No further action occurred until June 28, 1993, when the Commission received a letter from the respondent carrier asking that the claim be dismissed for lack of prosecution. This letter was treated as a motion to dismiss, and, on August 5, 1993, the administrative law judge filed an order dismissing the claim. The claimant appealed the administrative law judge’s August 5, 1993, order to the Full Commission, and, in that appeal, the claimant argued that the Commission should allow claims to remain pending indefinitely, regardless of whether or not the claimant intends to ever prosecute the claim or even feels that he is entitled to any compensation which he is not receiving.

[6] On March 23, 1994, this Commission filed an opinion and order finding that the administrative law judge’s August 5, 1993, order was not an appealable order and, therefore, dismissing the appeal. However, in reaching this decision, we addressed Mr. Tolley’s arguments, and we concluded that there is no legitimate reason for allowing inactive claims to remain pending where the claimant is not seeking any compensation or where a justiciable controversy otherwise does not exist, and we explained at length our reasons for reaching these conclusions. Furthermore, we pointed out to the claimant and Mr. Tolley that sanctions can be imposed against any party or attorney who institutes a claim without reasonable grounds to conclude that a meritorious controversy exists which requires adjudication by the Commission. In this regard, we made the following comments:

With regard to the suggestion of the claimant’s attorney that he will refile a claim even though no controversy exists, we point out that costs may be imposed against a party who institutes a claim without reasonable grounds. Ark. Code Ann. § 11-9-714 (1987). Furthermore, this Commission can impose sanctions against any attorney who files a claim without reasonable grounds to do so, including the imposition of the reasonable costs incurred by the other party as a result of the filing of the claim. Ark. Code Ann. § 11-9-717
(Cumm. Supp. 1993). Certainly, a claimant has every right to refile a claim where some meritorious controversy exists which creates the need for adjudication by the Commission. However, a claimant may not summarily refile a claim merely because an administrative law judge dismisses a claim under either Ark. Code Ann. § 11-9-702 (a)(4) 1987) or Commission Rule 13.

[7] The claimant did not attempt to appeal our March 23, 1994, decision.

[8] However, on October 22, 1993, while the appeal was pending before the Full Commission, Mr. Tolley filed another claim on behalf of the claimant, and, again, he requested a hearing at the time that he filed the claim. When no action was taken on that claim, the respondents again requested dismissal of the claim, and on July 20, 1994, the administrative law judge filed the order of dismissal which is the subject of the appeal currently before the Commission. However, despite our March 23, 1994, opinion, Mr. Tolley challenged the dismissal of the claim on behalf of the claimant, and he has continued to challenge the dismissal by again appealing the administrative law judge’s order of dismissal to this Commission.

[9] With regard to the respondents’s motion for dismissal of this appeal, we have previously found that an order of dismissal which is without prejudice is not appealable as a matter of right. However, we have also found that we have discretionary authority to review such orders. WayneJohnson v. Triple T. Foods. Inc., Full Workers’ Compensation Commission, opinion filed March 23, 1994 (Claim No. E219745); Randy McAbee v. TCC Illinois/Polar Express, Full Workers’ Compensation Commission, opinion filed March 25, 1994 (Claim No. E214857); Billy Norton v. Springdale AirService, Full Workers’ Compensation Commission, opinion filed March 25, 1994 (Claim No. E004464). After considering the actions taken by Mr. Tolley on behalf of the claimant in light of our previous opinion and order, we find that the exercise of our discretionary review authority is warranted in the present matter.

[10] Initially, we find that the claim was properly dismissed for want of prosecution. As discussed, no action whatsoever has been taken to prosecute this claim. Furthermore, when this matter was first before us, Mr. Tolley admitted on behalf of the claimant that the claimant was receiving, or had received, all of the compensation that he is entitled to receive and that he is not seeking any additional compensation, and there is no indication that this status has changed. Thus, by the claimant’s own admission, there is no justiciable controversy to adjudicate. Therefore, we find that the administrative law judge’s dismissal of the claim must be affirmed.

[11] However, after reviewing the facts, we find that the claim should be dismissed with prejudice and that costs should be assessed against Mr. Tolley unless cause can be shown indicating that these actions should not be taken. As discussed, we expressly concluded in our March 23, 1994, opinion and order that claims should not be allowed to remain pending where there is no meritorious justiciable controversy to adjudicate. Furthermore, we warned the claimant and Mr. Tolley that the filing of claims in the absence of reasonable grounds to conclude that a meritorious justiciable controversy exists might result in the imposition of sanctions. Although we had not filed our March 23, 1994, opinion when Mr. Tolley filed this claim on behalf of the claimant, he did have the opinion when he opted to challenge the respondents’ motion for dismissal before the administrative law judge and when he appealed the administrative law judge’s July 20, 1994, order of dismissal to the Full Commission. Nevertheless, on behalf of the claimant, Mr. Tolley intentionally disregarded the prior opinion and order of this Commission by continuing to aggressively challenge the dismissal of this claim before the administrative law judge and on appeal even though he acknowledges that there is no justiciable controversy to adjudicate. Furthermore, in a letter to the administrative law judge dated July 27, 1994, Mr. Tolley indicates that he intends to continue ignoring the decision of this Commission by continuing to file a new claim whenever a claim is dismissed, regardless of what this Commission says. In this regard, Mr. Tolley made the following comments:

Finally, I have always maintained that merely because a claimant is “receiving all benefits he is entitled to receive” that this should not prohibit him from filing a claim. . . . . I have been threatened in this and other cases with costs if I file additional proceedings after the case is dismissed. I am simply indicating to you at this time that I shall not be intimidated by the Commission threatening me with costs, and if this case is dismissed again, I will again file a new Ar-C form. It has been and is my position that the Commission cannot intimidate claimants or lawyers from filing otherwise legitimate claims, and I simply want the record to reflect that A.C.A. 11-9-702 which was designed to be a “housekeeping measure” is being used as a summary judgment proceeding since the Commission has indicated that once a case is dismissed pursuant to 11-9-702, an attorney will have to pay costs if he/she files a new claim, even though no hearing is requested.

[12] In the present case, by his own admission, Mr. Tolley filed these claims and instituted proceedings before this Commission even though the claimant did not seek any additional compensation. Consequently, we find that he instituted or continued proceedings before this Commission without reasonable grounds to do so. Furthermore, by challenging the dismissal of this claim, Mr. Tolley, on behalf of the claimant, has deliberately and brazenly disregarded the previous decision of this Commission, and he has expressed his intent to continue to do so in the future. Moreover, Mr. Tolley’s actions have resulted in the unwarranted expenditure of the resources of this Commission and the respondents, and his conduct has hindered and obstructed our orderly administration of the Arkansas Workers’ Compensation Law. This Commission simply will not allow any attorney or party appearing before us to hinder and obstruct the performance of our duties by demonstrating such rank disrespect for the law and the Commission as that displayed by Mr. Tolley. Certainly, Mr. Tolley is entitled to disagree with our conclusions. However, his forum for challenging those conclusions lies in the Arkansas Court of Appeals, not through the repetitive filing of claims which are certain to be dismissed or through such egregious conduct.

[13] In reaching our decision, we are aware that the respondents have withdrawn their motion for costs which was filed with their motion to dismiss this appeal. However, this Commission can raise this issue on our own motion, and we do so in this case. Steve Jackson v. Arkansas TruckingServices, Full Workers’ Compensation Commission, Sep. 23, 1993 (Claim No. E216668). We also note that Mr. Tolley filed a motion to sever issues pertaining to the imposition of costs against him from the issues pertaining to the dismissal of the claim. We find no reason to sever these issues, so we find that Mr. Tolley’s motion must be denied.

[14] Accordingly, after giving due consideration to the respondents’ motion to dismiss this appeal, the claimant’s response, and all other matters properly before the Commission, we find that the respondents’ motion must be, and hereby is, denied. In addition, based on our de novo
review of the entire record, and for the reasons discussed herein, we find that this claim must be, and hereby is dismissed for failure to prosecute under Commission Rule 13. Therefore, the administrative law judge’s decision in this regard is affirmed. However, we also find that this claim should be dismissed with prejudice and that costs should be imposed against the claimant’s attorney unless the claimant and his attorney can show cause why these actions should not be taken. Therefore, we find that the administrative law judge’s order must be vacated to the extent the dismissal is without prejudice, and we find that the claim must be remanded so that a hearing can be held to allow the claimant an opportunity to show cause why the claim should not be dismissed with prejudice and so that claimant’s attorney can be given an opportunity to show cause why costs should not be assessed against him. On remand, the administrative law judge is instructed to conduct such proceedings as are necessary to determine whether the claimant and his attorney have shown good cause that these actions should not be taken, to determine the amount of costs which may be assessed against claimant’s attorney, and to enter appropriate findings of fact and conclusions of law.

[15] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[16] Commissioner Humphrey concurs