{"id":"alj-H010322-2023-03-22","awcc_number":"H010322","decision_date":"2023-03-22","opinion_type":"alj","claimant_name":"Dwayne Armstrong","employer_name":"Shearers Foods LLC","title":"ARMSTRONG VS. SHEARERS FOODS LLC AWCC# H010322 MARCH 22, 2023","outcome":"dismissed","outcome_keywords":["dismissed:6","granted:1"],"injury_keywords":["strain"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//Armstrong_Dwayne_H010322_20230322.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Armstrong_Dwayne_H010322_20230322.pdf","text_length":9762,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H010322 \n \n \nDWAYNE P. ARMSTRONG, EMPLOYEE CLAIMANT \n \nSHEARERS FOODS LLC, \n EMPLOYER RESPONDENT \n \nTRAVELERS INDEMN. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED MARCH 22, 2023 \n \nHearing before Administrative Law Judge O. Milton Fine II on  March 17, 2023, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Guy  Alton  Wade,  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  17,  2023,  in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nWithout objection, the Commission file on this claim has been incorporated herein \nin  its  entirety  by  reference.  Admitted  into  evidence  was  Respondents’  Exhibit  1, \nforms,  pleadings,  and  correspondence related  to  the  claim,  consisting  of 48 \nnumbered pages. \n\nARMSTRONG – H010322 \n2 \n \n The record reflects the following procedural history: \n On December 19, 2020, a Form AR-1 was filed in this case, reflecting that \nClaimant  purportedly  sustained  a  strain  injury  while  lifting  pallets  at  work  on \nFebruary  14,  2020.    Per  the  Form  AR-2  that  was  filed on December 21,  2020, \nRespondents  controverted  the  claim  in  its  entirety.    On  December  14,  2020, \nClaimant  filed  a  Form  AR-C,  requesting  a  full  range  of  initial  and  additional \nbenefits.    No  hearing  request  accompanied  this  filing.    Respondents’  counsel \nmade an entry of appearance on February 22, 2021.  The evidence indicates that \ndiscovery was propounded to Claimant, but went unanswered. \n On June 4, 2021, Respondents filed their first Motion to Dismiss.  Therein, \nthey alleged that dismissal of the claim was warranted under AWCC R. 099.13 for \n“lack of prosecution.”  On June 8, 2021, a letter from the Commission was sent to \nClaimant, asking for a response to the motion within 20 days.  This letter was sent \nby both first-class and certified mail to the address for Claimant listed on his Form \nAR-C.    While  the  certified  letter  was  returned  to  the  Commission,  unclaimed,  on \nJuly  6,  2021,  the  first-class  letter  was  never  returned.    Regardless,  no  response \nwas forthcoming from him. \n On  June 30,  2021  ,  a  hearing  was  scheduled on  Respondents’  motion  for \nJuly 29, 2021, at 9:30 a.m. at the Commission in Little Rock.  The hearing notice \nwas  sent  to  Claimant  by  certified  and  first-class  mail  to  the  same  address  as \nbefore.  As before, the certified letter was returned to the Commission, unclaimed, \n\nARMSTRONG – H010322 \n3 \n \non July 20,  2021,  while  the  first-class  letter  was  never  returned.    The  evidence \nthus preponderates that Claimant received notice of the hearing. \n The  hearing  proceeded  as  scheduled  on  July  29,  2021.    Again,  Claimant \nfailed to appear at the hearing.  But Respondents appeared through counsel and \nargued for dismissal under § 11-9-702(a)(4) and Rule 13.  Thereafter, on July 29, \n2021, I issued an opinion in which I dismissed the claim under Rule 13. \n Subsequently, Sheila F. Campbell, Esq., entered an appearance before the \nCommission on behalf of Claimant.  She made a hearing request on his behalf on \nMarch 10, 2022.  The file was reassigned to me on March 11, 2022; and on March \n14, 2022, I sent prehearing questionnaires to the parties.  Claimant filed a timely \nresponse  thereto  on  April  5,  2022;  and  Respondents  followed  suit  on  April  7, \n2022.     A   prehearing   telephone   conference   took   place  on   June  20,   2022.  \nFollowing the conference, the file was returned to the Commission’s general files \nby agreement of the parties in order to allow for the completion of discovery. \n The  next  action  to  be  taken  in  connection  with  this  claim  took  place  on \nOctober  14,  2022,  when  Respondents  filed  another  Motion  to  Dismiss.    Therein, \nthey alleged that “Claimant has taken no action proceed with this matter and has \nfailed to provide full and complete responses to the interrogatories originally sent \n[i]n February 2021.”  The file was reassigned to me on October 18, 2022; and on \nOctober  20,  2022,  my  office  sent  a  letter  to  Claimant’s  counsel,  asking  for  a \nresponse to the Motion to Dismiss within 20 days.  However, when no response to \nthe  motion  was  forthcoming,  on  December  29,  2022,  I  scheduled  a  hearing \n\nARMSTRONG – H010322 \n4 \n \nthereon  for  February  17,  2022.  In  addition  to  the  notices  provided  to  the \nattorneys, I sent a copy of the hearing notice by both certified  and first-class mail \nto  Claimant  at  the  Newport,  Arkansas  address  listed  for  him  on  his  Form  AR-C.  \nHowever, the certified letter was returned, unclaimed, on January 23, 2023.  The \nfirst-class letter was not returned.  But Campbell on January 26, 2023, gave a new \naddress  for  him  in  Rochester,  New  York.    Coupled  with  that  were  motions  to \nwithdraw  from  her  representation  of  him,  and  to  continue  the  February  17, \nhearing.    In  an  order  entered  on  February  9,  2023,  I  granted  the  Motion  to \nWithdraw  under  AWCC  Advisory  2003-2,  and  continued  the  hearing  until  March \n17, 2023, at 11:30 a.m.  This order was sent to Claimant at an incorrectly-spelled \naddress  in  Rochester.    Unsurprisingly,  both  the  certified  and  first-class  letters \nwere returned to the Commission.  This was corrected; and they were re-sent on \nMarch 3, 2023.  Per the United States Postal Service, Claimant did not claim the \ncertified  letter  by  the  time  of  the  hearing.    However,  the  first-class  letter  was not \nreturned.    Moreover,  Claimant  (having  apparently  gotten  the  notice)  sent  a  letter \nto the Commission from the same Rochester address on March 6, 2023, stating: \nTo Whom It May Concern: \n \nI  am  the  Claimant  in  the  above  referenced  case.  I  am  submitting \nthis  letter  to  inform  you  that  I  no  longer  want  to  pursue  this  case \nand  want  to  dismiss  my  claim  for  Worker’s  [sic]  Compensation \nbenefits. \n \n/s/ Dwayne Armstrong \n \n\nARMSTRONG – H010322 \n5 \n \n The  hearing  took place  as  scheduled  on  March  17,  2023.    Unsurprisingly, \nClaimant  failed  to  appear.    But  Respondents  appeared  through  counsel  and \nmoved for dismissal under AWCC R. 099.13. \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  over \nthis matter. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  his \nclaim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby  dismissed \nwithout prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \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 \n\nARMSTRONG – H010322 \n6 \n \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 his claim because he has taken no further action in \npursuit of it (including appearing at the March 17, 2023, hearing to argue against \nits  dismissal)  since  the  June  20,  2022,  prehearing  conference.    Thus,  the \nevidence 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. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(emphasis  added)(citing Professional  Adjustment  Bureau  v.  Strong,  75  Ark.  249, \n629  S.W.2d  284  (1982)).  Respondents  at  the  hearing  asked  for  a  dismissal \nwithout  prejudice.    Based  on  the  above  authorities, I  agree  and  find  that  the \ndismissal of this claim should be and hereby is entered without prejudice.\n1\n \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). \n\nARMSTRONG – H010322 \n7 \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","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H010322 DWAYNE P. ARMSTRONG, EMPLOYEE CLAIMANT SHEARERS FOODS LLC, EMPLOYER RESPONDENT TRAVELERS INDEMN. CO., CARRIER RESPONDENT OPINION FILED MARCH 22, 2023 Hearing before Administrative Law Judge O. Milton Fine II on March 17, 2023, in Jonesboro, Craighead ...","fetched_at":"2026-05-19T23:09:44.777Z","links":{"html":"/opinions/alj-H010322-2023-03-22","pdf":"https://labor.arkansas.gov/wp-content/uploads//Armstrong_Dwayne_H010322_20230322.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}