{"id":"alj-H007900-2024-03-28","awcc_number":"H007900","decision_date":"2024-03-28","opinion_type":"alj","claimant_name":"Lawrence Watson","employer_name":"Dobbs Peterbilt West Memphis","title":"WATSON VS. DOBBS PETERBILT WEST MEMPHIS AWCC# H007900 MARCH 28, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":["shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Watson_Lawrence_H007900_20240328.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Watson_Lawrence_H007900_20240328.pdf","text_length":8683,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H007900 \n \n \nLAWRENCE WATSON, EMPLOYEE CLAIMANT \n \nDOBBS PETERBILT WEST MEMPHIS, \nEMPLOYER RESPONDENT \n \nLUBA CASUALTY INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED MARCH 28, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on March 28, 2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant represented  by  Mr. Daniel  E.  Wren,  Attorney  at  Law, Little  Rock, \nArkansas (neither appearing). \n \nRespondents represented  by  Mr. Jarrod  S.  Parrish,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a Motion  to Dismiss  by \nRespondents.  A  hearing  on  the  motion  was  conducted  on March  28,  2024, in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant and  his \ncounsel  waived  their  appearance at  the  hearing.    Admitted  into  evidence  was \nRespondents’ Exhibit 1, pleadings, correspondence, reports, and forms related to \nthis claim, consisting of one index page and 21 numbered pages thereafter. \n The record reflects the following procedural history: \n Per the First Report of Injury or Illness filed on October 16, 2020, Claimant \npurportedly suffered  an  injury  to  his  right  shoulder  on  October  6,  2020,  when  he \nwas removing an oil pan at work.  According to the Form AR-2 that was filed on \n\nJACKSON – H201641 \n \n2 \n \n \nOctober  20,  2020,  Respondents accepted  the  claim and  paid  medical  and \nindemnity benefits pursuant thereto. \n On February 10,  2023,  Claimant through  counsel filed  a  Form  AR-C, \nrequesting the  full  range  of  initial  and  additional benefits  in  connection  with  his \nalleged shoulder injury.     No    hearing    request    accompanied    this    filing.  \nRespondents’ counsel made their entry of appearance on February 14, 2023. \n The  record  reflects  that  no  further  activity  took  place  on  the  claim  until \nSeptember  28,  2023.    On  that  date,  Respondents  filed  the  instant  Motion  to \nDismiss.  Therein, they asked that the claim be dismissed under AWCC R. 099.13 \nand/or Ark. Code Ann. § 11-9-702 (Repl. 2012) because “Claimant has not sought \nany  type  of  bona fide hearing before the Workers’ Compensation Commission \nover the last six months.”  The file was assigned to me on September 28, 2023; \nand  on  that  same  date,  my  office  wrote  Claimant  and  his  counsel,  requesting  a \nresponse  to  the  motion  within  20  days.    Counsel  did  so  in  a  response  pleading \nfiled  on  October  18,  2023.    Therein,  he  objected  to  dismissal  and  argued  the \nfollowing:  (1) the “parties have been active in negotiations”; and (2) “Claimant \nintends to file [a] Prehearing Questionnaire [response] on Wage Loss in the next \n10 days.”  I interpreted this as a hearing request, and informed the parties on \nOctober  18,  2023,  that  I  would  take  the  motion  under  advisement.    Prehearing \nquestionnaires  were  issued  to  the  parties.    Claimant  filed  a  timely  response \nthereto  on November  8,  2023;  and  Respondents  followed  suit  on November  17, \n\nJACKSON – H201641 \n \n3 \n \n \n2023.    Following  a  prehearing  telephone  conference  on  December  4,  2023,  a \nscheduled  a  hearing  for  February  23,  2024,  at  10:30  a.m.  at  the  Crittenden \nCounty Courthouse in Marion on the following issues: \n1. What was Claimant’s average weekly wage? \n2. Whether  Claimant  is  entitled  to  additional indemnity  benefits  based \nupon earlier payment of them at a lower rate that that established by \nIssue No. 1. \n3. Whether Claimant is entitled to wage loss disability benefits. \n4. Whether Claimant is entitled to a controverted attorney’s fee. \nHearing  preparation  continued.    On  February  16,  2024,  Respondents  filed  the \nindexes  for  their  medical  and  non-medical  exhibits,  which  they  furnished  to \nClaimant.    However,  on February  21,  2024,  Claimant’s  counsel  emailed  the \nfollowing: \nJudge Fine[:] \nDo [sic] to very recent changes in my client’s employment status we \nno  longer  need  a  hearing.    I  apologize  for  the  late  cancellation.    I \nwill pay the court reporter’s fee.  At this time we would ask that the \ncase  be  returned  to  the  general  files.    I  have  discussed  this  with \n[Respondents’ counsel] and he has no objection. \n \nBased on this, the hearing was cancelled. \n Respondents’ counsel on that same date renewed their Motion to Dismiss.  \nThe  hearing  was  initially  scheduled  on  February  26,  2024,  for  April  12,  2024,  at \n12:30 p.m.  in  the St. Francis  County  Courthouse  in  Forrest  City.  However,  after \n\nJACKSON – H201641 \n \n4 \n \n \nthe office of Claimant’s counsel on February 28, 2024, emailed me that both he \nand Claimant “will be waiving their appearance” at the hearing, it  was  reset  for \nMarch  14,  2023,  at  10:00  a.m.  at  the  Commission  in  Little  Rock.   But  after \nRespondents’ counsel developed a conflict with that time, it was reset once more \nfor March 28, 2024, at 9:30 a.m. at the Commission in Little Rock. \n The  hearing  on  the  Motion  to  Dismiss  proceeded  as  scheduled  on March \n28,   2024.    As   noted   above,   both Claimant and his counsel waived   their \nappearance.   Respondents  appeared  through  counsel  and  argued  for  dismissal \nunder the aforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim under AWCC R. 099.13. \n\nJACKSON – H201641 \n \n5 \n \n \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim  is  hereby \ndismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \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). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested–dismissal of this \nmatter–by a preponderance of the evidence.  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(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  this claim.   Thus, the  evidence preponderates  that \ndismissal is warranted under Rule 13.  Because of this finding, it is unnecessary \nto address the application of § 11-9-702. \n\nJACKSON – H201641 \n \n6 \n \n \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).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at  the  hearing  asked  for  a  dismissal  without prejudice.   Based  on \nthe  foregoing, I agree  and  find  that  the  dismissal  of  these  claims  should  be  and \nhereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for additional benefits 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. H007900 LAWRENCE WATSON, EMPLOYEE CLAIMANT DOBBS PETERBILT WEST MEMPHIS, EMPLOYER RESPONDENT LUBA CASUALTY INS. CO., CARRIER RESPONDENT OPINION FILED MARCH 28, 2024 Hearing before Administrative Law Judge O. Milton Fine II on March 28, 2024, in Little Rock, P...","fetched_at":"2026-05-19T22:57:02.024Z","links":{"html":"/opinions/alj-H007900-2024-03-28","pdf":"https://labor.arkansas.gov/wp-content/uploads/Watson_Lawrence_H007900_20240328.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}