{"id":"alj-H008203-2023-01-12","awcc_number":"H008203","decision_date":"2023-01-12","opinion_type":"alj","claimant_name":"Gary Smith","employer_name":"Rodriguez Courier Freight, Inc","title":"SMITH VS. RODRIGUEZ COURIER FREIGHT, INC. AWCC# H008203 AMENDED JANUARY 12, 2023","outcome":"dismissed","outcome_keywords":["dismissed:6","granted:1"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Smith_Gary_H008203_20230112.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Smith_Gary_H008203_20230112.pdf","text_length":7984,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H008203 \n \n \nGARY W. SMITH, EMPLOYEE CLAIMANT \n \nRODRIGUEZ COURIER FREIGHT, INC., \n EMPLOYER RESPONDENT \n \nNATL. LIAB. & FIRE INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 12, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  January  12, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Randy P. Murphy, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  the  Motion  to  Dismiss  that \nwas filed  by  Respondents.    A  hearing  on  the  motion  was  conducted  on  January \n12,  2023,  in  Little  Rock,  Arkansas.    Claimant,  who  is pro  se,  failed  to appear.  \nRespondents were represented at the hearing by Mr. Randy P. Murphy, Attorney \nat Law, of Little Rock, Arkansas.   The record consists of Respondents’ Exhibit 1, \npleadings  related  to  this  claim,  consisting of  two  pages.   In  addition,  and without \nobjection,  the  Commission’s  file  has  been  incorporated  herein  in  its  entirety  by \nreference. \n\nSMITH – H 008203 \n2 \n \n The  evidence  reflects  that  per  the  First  Report  of  Injury  or  Illness  filed  on \nOctober 22, 2020, Claimant purportedly injured his lower back on September 28, \n2020,  when  he  was  lifting  a box  at  work.    According  to  the  Form AR-2  that  was \nfiled  on  November  3,  2020  ,  Respondents  accepted  the  claim  and  paid  medical \nand temporary total disability benefits pursuant thereto. \n On  May  25,  2021,  a  Joint  Petition  was  filed  with  the  Commission  on  this \nmatter.   A  hearing  thereon was  set  for  June  8,  2021,  at  the  Commission  in Little \nRock.  However, Respondents’ counsel informed the Commission by letter on that \ndate  that  Claimant  had  elected  not  to  proceed  with  settlement.    For  that  reason, \nthe  hearing  on  the  Joint  Petition  was  cancelled,  and  the  file  was  returned  to  the \nCommission’s general files. \n Attorney  Greg  Giles  entered  his  appearance  on  behalf  of  Claimant on \nAugust  18,  2021;  and  on  that  same  date,  he filed  a  Form  AR-C on August  18, \n2021.  Therein, Claimant requested the full range of initial and additional benefits \nand  alleged  that he  hurt  his  back  at  work on  September 28,  2020,  when he  was \n“picking  up  [a]  heavy  package.”    No  further  action  occurred  on  the  claim  until \nAugust  12,  2022,  when  Giles  moved  to  withdraw  from  his  representation  of \nClaimant.      In  his   motion,   Giles   stated   that   his   client “appear[ed]   to  have \nabandoned his claim,” and had failed to respond despite efforts to contact him by \nboth  phone  and  mail.    In  an  Order  entered  on  August  25,  2022, the  Full \nCommission granted Giles’s motion under AWCC Advisory 2003-2. \n\nSMITH – H 008203 \n3 \n \n On  October  26,  2022  ,  Respondents  filed  the  instant  Motion  to  Dismiss.  \nTherein,  they  argued  that  dismissal  was  warranted  under  AWCC  R.  099.13  and \nArk.  Code  Ann.  § 11-9-702  (Repl.  2012).  The  case  was  assigned  to  me  on \nOctober 27, 2022; and on that same date, my office wrote Claimant, requesting a \nresponse  to  the  motion  within  20  days.    The  letter  was  sent  by  first-class  and \ncertified  mail  to  the  address  listed  by  Claimant  in  his  Form  AR-C.    The  certified \nletter  was  returned  to  the  Commission,  undelivered, on November  21,  2022;  but \nthe first-class letter was not returned.  Regardless, no response to the motion was \nforthcoming.  On December 16, 2022, a hearing on the motion was scheduled for \nJanuary 12, 2023, at 11:0 0 a.m. at the Commission in Little Rock.  The notice was \nsent to Claimant by first-class and certified mail at the same address as before.  In \nthis instance, the certified letter was claimed by him on December 24, 2022; and \nthe  first-class  letter  was  not  returned.  The  evidence  thus  preponderates  that \nClaimant received notice of the hearing. \n The hearing on the Motion to Dismiss proceeded as scheduled on January \n12, 2023.  Again, Claimant failed to appear.  But Respondents appeared through \ncounsel   and   argued   for   dismissal   of   the   action   under   the   aforementioned \nauthorities. \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): \n\nSMITH – H 008203 \n4 \n \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this matter. \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 \nhis claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby \ndismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC 099.13 reads: \n \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 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) \n\nSMITH – H 008203 \n5 \n \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit  of it  (including  appearing  at  the  January  12,  2023,  hearing  to  argue \nagainst  its  dismissal)  since  the  filing  of  his  Form  AR-C  on  August  18,  2021.  \nThus,  the  evidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  \nBecause  of  this  finding,  it  is  unnecessary  to  address  the  application  of  §  11-9-\n702. \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  5  10,  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 Pr  ofessional  Adjustment  Bureau  v.  Strong, \n75  Ark.  249,  629  S.W.2d  284  (1982)).  Respondents  at  the hearing  asked  for  a \ndismissal without prejudice.  Based on the above authorities, I agree and find that \nthe dismissal of this claim should be and hereby 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 is hereby dismissed without prejudice. \n\nSMITH – H 008203 \n6 \n \n IT IS SO ORDERED. \n \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. H008203 GARY W. SMITH, EMPLOYEE CLAIMANT RODRIGUEZ COURIER FREIGHT, INC., EMPLOYER RESPONDENT NATL. LIAB. & FIRE INS. CO., CARRIER RESPONDENT OPINION FILED JANUARY 12, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on January 12, 2023, i...","fetched_at":"2026-05-19T23:11:23.310Z","links":{"html":"/opinions/alj-H008203-2023-01-12","pdf":"https://labor.arkansas.gov/wp-content/uploads/Smith_Gary_H008203_20230112.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}