{"id":"alj-G807158-2023-09-20","awcc_number":"G807158","decision_date":"2023-09-20","opinion_type":"alj","claimant_name":"Thomas Boyette","employer_name":"Roach Mfg. Corp","title":"BOYETTE VS. ROACH MFG. CORP. AWCC# G807158 SEPTEMBER 20, 2023","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:1"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//Boyette_Thomas_G807158_20230920.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Boyette_Thomas_G807158_20230920.pdf","text_length":9441,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. G807158 \n \n \nTHOMAS L. BOYETTE, EMPLOYEE CLAIMANT \n \nROACH MFG. CORP., \n SELF-INSURED EMPLOYER RESPONDENT NO. 1 \n \nTRAVELERS INDEMN. CO., \n CARRIER RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL \n DISABILITY TRUST FUND RESPONDENT NO. 2 \n \n \nOPINION FILED SEPTEMBER 20, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  September \n15, 2023, in Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  No. 1  represented  by  Mr.  Guy  Alton Wade,  Attorney  at  Law,  Little \nRock, Arkansas. \n \nRespondent  No.  2,  represented  by  Ms.  Christy  L.  King,  Attorney  at  Law,  Little \nRock, Arkansas, excused from participation. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on  the Motion to Dismiss filed \nby  Respondents  No.  1.    A  hearing  on  the motion  was  conducted  on  September \n15,  2023,  in  Jonesboro,  Arkansas.    Claimant,  who  is pro  se,  failed  to  appear.  \nRespondents  No.  1  were  represented  at  the hearing  by  Mr.  Guy  Alton  Wade, \nAttorney  at  Law,  of  Little  Rock,  Arkansas.    Respondent  No.  2,  represented  by \nMs.  Christy  L.  King,  Attorney-at-Law,  Little  Rock,  Arkansas,  was  excused  from \nparticipation.    The  record  consists  of  Respondents’  Exhibit  1,  pleadings,  forms \n\nBOYETTE – G807158 \n \n2 \nand  correspondence  related  to  the  claim,  consisting  of  five  pages.  In  addition, \nwithout  objection,  the  Commission’s  file  has  been  incorporated  herein  in  its \nentirety by reference. \n The evidence reflects that  per the First Report of Injury or Illness filed on \nOctober 23, 2018, Claimant purportedly suffered an injury to his left hand at work \non October  22,  2018,   when his  hand  got  caught  in  a  falling  scissor  lift  table.  \nAccording  to  the  Form AR-2  that  was  filed  on  November  2,  2018,  Respondents \nNo.  1  accepted  the  claim  and  paid  medical  and  indemnity  benefits  pursuant \nthereto. \n On  May  16,  2019,   through  then-counsel  Rainwater,  Holt  &  Sexton, \nClaimant filed a Form AR-C, requesting a range of initial and additional benefits, \nand  stated  that  the  alleged  accident  resulted  in  injuries  to “his  right  arm,  hand, \nand   other   whole   body.”  No   hearing   request   accompanied   this   filing.  \nRespondents  No.  1  on  May  17,  2019,  informed  the  Commission  that  their \nposition  had  not  changed.    Attorney  Tod  Bassett  entered  an  appearance  on \nbehalf of Respondents No. 1 on May 20, 2019. \n On  March  12,  2020,  Respondents  No.  1  filed  a  joint  petition  with  the \nCommission  and  requested  a  hearing  thereon.    The  hearing  was  scheduled  on \nMarch  16,  2020,  for  April  3,  2020,  at  9:45  a.m.  at  the  Craighead  County \nCourthouse  in  Jonesboro.    However,  because  of  the  COVID-19  pandemic,  the \nhearing was cancelled. \n\nBOYETTE – G807158 \n \n3 \n Claimant’s  then-counsel  filed  an  identical  copy  of  the  earlier  Form  AR-C \non  September  21,  2020.    They  did  this  yet  again  on  March  1,  2021,  for  no \ndiscernible  reason;  while  in  both  instances  they  wrote  that  they  were  doing  this \n“for statute [of limitations] purposes,” the first Form AR-C remained in effect and \noperated  to  toll  the  running  of  the  limitations  period.    Bassett  retired  from  the \npractice of law as of December 31, 2020; and his partner, James Graves, moved \nto  be  substituted  as  counsel  for  Respondents.    On  May  21,  2021,  Gary  Davis \nentered  his  appearance  as  co-counsel  to  Claimant.    To  further  compound  the \nconfusion in this matter, attorney Daniel Wren on November 24, 2021, informed \nthe  Commission  by  letter  that  Claimant  had  now  hired  him  to  prosecute this \nclaim. \n No  further  action  on  the  claim  took  place  until  June  30,  2023.    On  that \ndate,  current  counsel  for  Respondents  No.  1  entered  his  appearance  and  filed \nth e instant  Motion  to  Dismiss.    Therein,  it  was  argued  that  dismissal  was \nwarranted under  AWCC R. 099.13 because “Claimant has not done anything to \npursue  this  matter  or  requested  a  hearing.”  On  July  5,  2023,  my  office  wrote \nWren  and  Claimant,  asking  for  a  response  to  the  motion  within 20  days.    This \ncorrespondence  was  sent  to  Claimant  by  first-class  and  certified  mail  to  the \naddress for him listed in the file and on his Forms AR-C.  However, both of these \nitems were returned to the Commission, undelivered. \n Meanwhile,   on   June   29,   2023,   Wren   filed   with   the   Clerk   of   the \nCommission  a  motion  to  withdraw  from  the  case.    On  July  11,  2023,  the  Full \n\nBOYETTE – G807158 \n \n4 \nCommission entered an order granting the motion under AWCC Advisory 2003-2.  \nNot  surprisingly,  no  response  to  the  Motion  to  Dismiss  was  forthcoming  from \neither Claimant or his now-former counsel. \n A  hearing  on  the  Motion  to  Dismiss  was  scheduled on  July  28,  2023,  for \nSeptember  15,  2023,  at  11:00  a.m.  at  the  Craighead  County  Courthouse  in \nJonesboro.    The  Notice  of  Hearing  was  sent  to  the  now-pro  se  Claimant  (using \nthe same address as before) by certified and first-class mail.  In this instance, the \nU.S. Postal Service could not confirm delivery of the certified letter; but neither it \nnor the first-class letter was returned.  The evidence thus preponderates that he \nreceived notice of the hearing. \n The  hearing  on  the  Motion  to  Dismiss  proceeded  as  scheduled  on \nSeptember  15,  2023.    Again,  Claimant  failed  to  appear.    Respondents  No.  1 \nappeared  through  counsel  and  argued  for  dismissal  of  the  action  under the \naforementioned authority. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. All parties received notice of the Motion to Dismiss and the hearing \nthereon pursuant to AWCC R. 099.13. \n\nBOYETTE – G807158 \n \n5 \n3. Respondents   No.  1  have  proven  by  a  preponderance  of  the \nevidence  that  Claimant  has  failed  to  prosecute  his  claim  under \nAWCC R. 099.13. \n4. Respondents’ Motion to Dismiss should be, and hereby is, granted. \n5. This claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996).  (Emphasis added) \n As  the  moving  party,  Respondents  No.  1  under  Ark.  Code  Ann.  §  11-9-\n705(a)(3)  (Repl.  2012)  must  prove  their  entitlement  to  the  relief  requested–\ndismissal  of  this  claim–by  a  preponderance  of  the  evidence.    This  standard \nmeans  the  evidence  having  greater  weight  or  convincing  force.   Barre  v. \nHoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., \n212 Ark. 491, 206 S.W.2d 442 (1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit  of it—including appearing  at  the  September  15,  2023,  hearing  to  argue \n\nBOYETTE – G807158 \n \n6 \nagainst its dismissal—since the March 1, 2021, re-filing of his Form AR-C.  Thus, \nthe evidence preponderates that dismissal is warranted under Rule 13. \n That  leaves  the  question  of  whether  the  dismissal  of the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    In Abo  v.  Kawneer  Co.,  2005  AR Wrk.  Comp. \nLEXIS  510,  Claim  No.  F404774  (Full  Commission  Opinion  filed  November  15, \n2005),  the  Commission  wrote:    “In  numerous  past  decisions,  this  Commission \nand  the  Appellate  Courts  have  expressed  a  preference  for  dismissals without \nprejudice.”    (Emphasis  added)(citing Professional  Adjustment  Bureau  v.  Strong, \n75 Ark. 249, 629 S.W.2d 284 (1982)).  Respondents No. 1 at the hearing asked \nfor  a  dismissal  without  prejudice.    Based  on  the  above  authorities, I  agree  and \nfind  that  the  dismissal  of  the  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. G807158 THOMAS L. BOYETTE, EMPLOYEE CLAIMANT ROACH MFG. CORP., SELF-INSURED EMPLOYER RESPONDENT NO. 1 TRAVELERS INDEMN. CO., CARRIER RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED SEPTEMBER 20, 2023 Hearing befor...","fetched_at":"2026-05-19T23:02:56.463Z","links":{"html":"/opinions/alj-G807158-2023-09-20","pdf":"https://labor.arkansas.gov/wp-content/uploads//Boyette_Thomas_G807158_20230920.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}