Opinion
CLAIM NO. D913749
OPINION FILED AUGUST 14, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by RALPH WASHINGTON, Attorney at Law, Little Rock, Arkansas.
Respondent #1 represented by WILLIAM M. GRIFFIN, III, Attorney at Law, Little Rock, Arkansas.
Respondent #2 represented by JOSEPH E. KILPATRICK, JR., Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Vacated and set aside.
OPINION AND ORDER
[2] Both respondents appeal a decision of the Administrative Law Judge filed on January 20, 1998, finding that "The March 7, 1997, Order of Dismissal is set aside." Based upon our de novo review of the entire record, we find that the March 7, 1997, Order of Dismissal became final on or about April 6, 1997, prior to the receipt of claimant's April 30, 1997, correspondence requesting a new conference hearing with respect to claim number D913749. Therefore, we find that the decision of the Administrative Law Judge must be vacated and set aside.This matter was submitted to the Administrative Law Judge on briefs and stipulations. The stipulations agreed to by all parties are set forth as follows:
1. This claim was initially filed in the Spring of 1991. On March 26, 1991, a Legal Advisor conference was held in Ted Goodloe's office with Ron Smith attending on behalf of Aetna and Judy Smith attending on her own behalf.
2. In May of 1991, Responses to Prehearing Questionnaires were filed.
3. The first prehearing conference in this case was held in June 1991.
4. The claimant is making a claim for alleged extraordinary mental stress which she had to endure on the job.
5. The claimant alleges temporary total disability since December 14, 1992.
6. On July 28, 1995, a prehearing order was entered by Judge Gary Shelton. That hearing was continued.
7. On October 9, 1995, another prehearing was held before Judge Greenbaum, and a prehearing order was entered.
8. On May 6, 1996, an order was entered by the Eastern District of Arkansas, Western Division, in a case by Judy Smith v. Harvest Foods. A copy of that order is attached as Exhibit "A."
9. Exhibit "B" is a letter dated January 21, 1997, from Joseph E. Kilpatrick, Jr., to Faydeane Gray requesting that this case be dismissed.
10. Exhibit "C" is a letter dated January 27, 1997, from William M. Griffin, III, to Faydeane Gray requesting that the case be dismissed as to Aetna Casualty Surety Company.
11. Exhibit "D" is a letter from Jospeh E. Kilpatrick, Jr., to Michael D. Booker dated February 3, 1997, enclosing a copy of the January 21, 1997, letter to Faydeane Gray.
12. Claimant does not stipulate to the contents of Exhibits "B," "C," and "D" but stipulates only that the letters were addressed to Ms. Faydeane Gray and Mr. Michael Booker.
13. Exhibit "E" is a pro se filing on March 25, 1997, requesting a hearing. However, an incorrect file number was placed on the filed document.
14. An order of dismissal was filed by Judge David Greenbaum on March 7, 1997.
15. On May 6, 1997, Judge David Greenbaum sent the parties a prehearing questionnaire.
Stipulation number 13 addresses claimant's March 25, 1997, correspondence to the Commission. This stipulation states "However, an incorrect file number was placed on the filed document." Claimant's filed document requests a new hearing on claim number E006790. As it applies to this claim, claim number E006790 is an incorrect file number. However, claim number E006790 is the correct claim number for claimant's bilateral knee injuries.
With regard to pro se filings, the Arkansas Court of Appeals has discussed the minimum requirements necessary for correspondence to the Commission to constitute a claim for additional compensation for the purposes of tolling the applicable Statute of Limitation. See Cook v. Southwestern Bell Telephone Company, 21 Ark. App. 29, 727 S.W.2d 862 (1987). The Commission has interpreted the Court's holding in Cook as requiring that correspondence intended as a claim for additional benefits (1) identify the claimant (2) indicate that a compensable injury has occurred, and (3) convey the idea that compensation is expected.Araille Martin v. Hamlin Seed Company, Full Commission Opinion June 8, 1993 (Claim No. ( D901716)). In Geraldine Hornaday v. Smith Roberts Timber Company, Full Commission Opinion filed February 6, 1996 ( D807079) the Full Commission reviewed a claimant's request and determined that the claimant's six page letter conveyed the general idea that claimant requests the Full Commission to review the Administrative Law Judge's decision in her claim and considered the letter to be a notice of appeal.
In our opinion, we cannot find that claimant's March 25, 1997, correspondence is either a petition for review or a motion for reconsideration of the Order of Dismissal in this claim. First, claimant's March 25, 1997, correspondence while it does identify the claimant, it does not identify the injury relevant to this claim, the claim number relevant to this claim, the Administrative Law Judge's Order of Dismissal, or requests in any manner whatsoever that the Order of Dismissal be appealed or reconsidered. All that can be gleaned from claimant's March 25, 1997, correspondence is that claimant would like a new hearing on a previously closed claim for claimant's compensable bilateral knee injuries. We cannot agree with the Administrative Law Judge's finding that the 1990 claim number was a clerical error and that the March 25, 1997, correspondence was sufficient enough to place the parties on notice that claimant was in fact appealing the Order of Dismissal for claimant's alleged 1989 stress injury with claim number D913749. There is simply insufficient information in claimant's March 25, 1997, correspondence to even satisfy the absolute minimum requirements necessary for an adequate petition for review for the Order of Dismissal. In a case such as this where a claimant has filed multiple claims before the Commission, it is imperative that the claimant provide sufficient information in her correspondence for the Commission to determine which claim the correspondence concerns. Claimant's March 25, 1997, correspondence clearly concerned her bilateral knee injury, not the mental stress injury which is the subject of this claim ( D913749). It is the claimant's burden to at a minimum correctly identify her claim, either by claim number or description.
Moreover, we are not persuaded by claimant's argument that the Administrative Law Judge erred in granting the order of dismissal since claimant's counsel was involved as a member of the legislature in the General Session at the time the Motions for Dismissal and the Order of Dismissal were entered. It is noted that the provision relied upon by claimant for the proposition that the Motion and Order should be stayed until after the General Assembly adjourned sine die applies only to hearings. Specifically, Ark. Code Ann. § 25-15-103(a)(1) states:
Any and all administrative hearings before an agency of this state in which any attorney for either party to any suit is . . . a member of the Senate or the House of Representatives . . . shall be stayed for not less than fifteen days preceding the convening of the General Assembly and for thirty days after its adjournment sine die, unless otherwise requested by any interested member of the General Assembly or interested officer or employee of the General Assembly.
(2) The motion for a continuance need not be reduced to writing.
(3) It is not necessary that the notice be afforded to opposing counsel that a continuance is sought.
This statutory provision is specific and only grants a stay for administrative hearings and does not excuse members of the legislature from responding to motions or lodging timely notices of appeal from duly entered orders and opinions.
Furthermore, Ark. Code Ann. § 11-9-702(a)(4) (1987) provided:
If, within six months after the filing of a claim for compensation, no hearing has been requested with respect to the claim, the claim shall be dismissed without prejudice to the refiling of the claim within the limitations period specified in subdivisions (a)(1)(3) of this section.
Accordingly, it was not necessary for a hearing to be held in order for the Administrative Law Judge to act upon the Motions for Dismissal filed by respondents in this matter.
Moreover, in order to take advantage of the stay provided for in § 25-15-103, subdivision (2) makes it clear that a motion for continuance must be made. There is no evidence of such a motion in this claim.
Finally, even if we were to find that claimant filed a timely Notice of Appeal of the Administrative Law Judge's March 7, 1997, Order of Dismissal, a finding we do not make, we still find that the Administrative Law Judge's opinion dated January 20, 1998, should be vacated and set aside. Assuming that claimant's March 25, 1997, correspondence is sufficient to satisfy the minimum requirements for petition of review, a finding we do not make, this matter should have been placed on the Full Commission's docket and the Administrative Law Judge would have lost jurisdiction to set aside his Order of Dismissal.
Assuming arguendo, that we set aside the Order of Dismissal, a finding which we cannot make for those reasons set forth above, we find that claimant is barred from recovery in the workers' compensation arena as she has elected to pursue her remedies against respondent in Federal Court. The election of remedies doctrine has been described as follows:
The general rule as to the election of remedies is that, where a party has a right to chose one of two or more appropriate but inconsistent remedies, and with full knowledge of all the facts and of his rights makes a deliberate choice of one, then he is bound by his election and cannot resort to the other remedy.
See Travelers Insurance Company v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997). In Travelers, the Arkansas Supreme Court noted that if the plaintiff either "received or could have received" compensation under the Workers' Compensation Act, the election of remedies would control. In the present claim, claimant either received or could have received a monetary judgment against respondent in her Federal Lawsuit. Therefore, the election of remedies bars claimant's instant claim for workers' compensation benefits.
We do not find the Administrative Law Judge's analysis — that because claimant has not recovered on her judgment, she has not received any remedy, — to be persuasive. Under the Administrative Law Judge's analysis, claimant could proceed against her employer in Federal Court, receive an unfavorable judgment, or a judgment not to her satisfaction, and then go forward under Workers' Compensation and in effect have not only a day in Court, but two days in Court. The Arkansas Supreme Court has held that when a case has been pursued to finality, an election of remedies has been made. Sontag v. Orbit Valve Co., 283 Ark. 191, 672 S.W.2d 50 (1984). In the present case, claimant pursued her claim against Harvest Foods to finality a judgment in Federal Court. Whether claimant has collected on this judgment is immaterial to the election of remedies doctrine. Once the employee makes the election, the employee may not later avail himself of the remedy not chosen. Gourley v. Crossett Public Schools, 333 Ark. ___, ___ S.W.2d ___ (May 7, 1998); Western Waste Industry v. Purifoy, 326 Ark. 256, 930 S.W.2d 348 (1996).
In the present case, it was stipulated that claimant proceeded with her claim against respondent in Federal Court on the same grounds for which she is now seeking workers' compensation benefits. Inasmuch as claimant has followed that action through to judgment, we find that claimant has made an election of remedies and is now barred from pursuing this cause of action on the same set of facts.
Accordingly, for those reasons set forth herein, we find that the decision of the Administrative Law Judge must be and hereby is vacated and set aside.
IT IS SO ORDERED.
Commissioner Humphrey recuses.