{"id":"alj-H100341-2025-05-16","awcc_number":"H100341","decision_date":"2025-05-16","opinion_type":"alj","claimant_name":"Demetrius Chism","employer_name":"Little Rock Sch. Dist","title":"CHISM VS. LITTLE ROCK SCH. DIST. AWCC# H100341 May 16, 2025","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":["hip","knee","shoulder","neck","back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Chism_Demetrius_H100341_20250516.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Chism_Demetrius_H100341_20250516.pdf","text_length":9816,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H100341 \n \n \nDEMETRIUS CHISM, EMPLOYEE CLAIMANT \n \nLITTLE ROCK SCH. DIST., \n SELF-INSURED EMPLOYER RESPONDENT \n \nRISK MGMT. RESOURCES, \n THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED MAY 16, 2025 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on May 15, 2025, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant, represented   by   Gregory   R.   Giles,   Attorney   at   Law,   Texarkana, \nArkansas, neither appearing. \n \nRespondents represented  by  Ms. Melissa  Wood,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on May 15, 2025, in Little \nRock,  Arkansas.   No  testimony  was  taken  in  the  case.   Neither Claimant nor  his \ncounsel appeared at  the  hearing.   Admitted  into  evidence  was  Respondents’ \nExhibit 1, pleadings and forms related to this claim, consisting of one index page \nand  11  numbered  pages  thereafter.  Also,  in  order  to  address  adequately  this \nmatter  under  Ark.  Code  Ann. § 11-9-705(a)(1)  (Repl. 2012)(Commission  must \n“conduct the hearing . . . in a manner which best ascertains the rights of the \nparties”), and without objection, I have blue-backed to the record documents from \nthe Commission’s file on the claim,  consisting  of ten pages.  In  accordance  with \n\nCHISM – H100341 \n \n2 \n \nSapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 Ark. App. LEXIS 549, these \ndocuments have been served on the parties in conjunction with this opinion. \n The record reflects the following procedural history: \n Per  the Form  AR-C filed on May  5,  2021,  Claimant allegedly suffered \nmultiple injuries at  work  on December  15,  2021, when  he  fell  through  a  rotten \ntrailer  floor.  This  claim  has  been  the  subject  of  a  mediation,  and  has  been \nassigned  to  me  on  multiple  occasions,  including  on  September  30,  2024,  to \nconduct   a   full   hearing.      Following   a   prehearing   telephone   conference   on \nDecember  9,  2024,  a  prehearing  order  was  issued  on  December  10,  2024,  that \nscheduled  a  hearing  for February  5,  2025.    That  order  listed  the  following \nstipulations  reached  by  the  parties  and  issues  to  have  been  litigated  at  the \nhearing: \n Stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  employee/self-insured  employer/third-party  administrator  rela- \ntionship  existed  among  the  parties  on  December  14,  2020,  when \nClaimant  sustained  compensable  injuries  to  his  bilateral  shoulders \nas well as to his right hip and knee. \n3. Respondents accepted the above injuries as compensable and paid \nmedical    and    indemnity    benefits    pursuant    thereto,    including \n\nCHISM – H100341 \n \n3 \n \npermanent  partial  disability  benefits  pursuant  to  impairment  ratings \ntotaling fifteen percent (15%) to the body as a whole assigned by Dr. \nBarry   Baskin   (whom   Claimant   saw   pursuant   to   a   change   of \nphysician) with regard to Claimant’s bilateral shoulder injuries. \n Issues: \n1. Whether Claimant’s alleged neck and back injuries are barred by the \nstatute of limitations. \n2. Whether  Claimant  sustained  compensable  injuries  to  his  neck  and \nback in the stipulated work-related specific incident of December 14, \n2020. \n3. Whether  Claimant  is  entitled  to  reasonable  and  necessary  medical \ntreatment of his alleged neck and back injuries. \n4. When did Claimant reach the end of his healing period? \n5. Whether  Claimant  is  entitled  to  additional  temporary  total  disability \nbenefits. \n6. Whether  Claimant  is  entitled  to  impairment  ratings,  and  permanent \npartial  disability  benefits  pursuant  thereto,  in  connection  with  his \nalleged neck and back injuries. \n7. What was Claimant’s average weekly wage? \n8. Whether Claimant is entitled to wage loss disability benefits. \n9. Whether Claimant is entitled to a controverted attorney’s fee. \n\nCHISM – H100341 \n \n4 \n \nAll other issues were reserved. \n But  on  the  eve  of  the  hearing,  the  parties  reached  a  settlement,  and  the \nhearing  was  cancelled.    On  February  18,  2025,  I  heard  and  approved  a  joint \npetition for partial settlement pursuant to Ark. Code Ann. § 11-9-805(a)(2) (Supp. \n2017). \n The record reflects that nothing further took place on the claim until March \n18, 2025.  On that date, Respondents filed the instant motion, asking for dismissal \nof the claim (or rather, that portion of the claim that was not the subject of the joint \npetition  for  partial  settlement) under  AWCC  R.  099.13  because  Claimant  has \nfailed to request a hearing on the claim within the last six months.  The claim was \nreassigned  to me  on  March  19,  2025;  and  on  that  same  date,  my office  wrote \nClaimant and  his  counsel,  asking  for  a  response  to  the  motion  within  20  days.  \nThe  letter  was  sent  by  first  class  and  certified  mail  to  the Katy,  Texas address \nlisted  for  Claimant  in  the  file  and supplied  by  him.   However,  both  items  of \ncorrespondence to him were returned to the Commission, with the certified letter \nbearing  the  notation  that  it  was  unclaimed,  and  the  first-class  item  stating  that  it \nwas  not  deliverable  as  addressed.    The  letter  to  Claimant’s  counsel  was  not \nreturned.   Regardless,  no  response  from either  individual to  the  motion  was \nforthcoming.  On April 9, 2025, a hearing on the Motion to Dismiss was scheduled \nfor May 15, 2025, at 9:30 a.m. at the Commission in Little Rock.  The notice was \nsent  to  Claimant  via  first-class  and  certified mail  to the  same  address  as  before.  \n\nCHISM – H100341 \n \n5 \n \nIn this instance, the certified letter was returned to the Commission, unclaimed, on \nMay  14,  2025,  while  the  first-class  letter  was  not  returned.  Claimant’s counsel \nemailed  my  office  on  April  9,  2025,  indicating  that  he  did  not  plan  to  attend  the \nhearing. \n The  hearing  on  the  Motion  to  Dismiss  proceeded  as  scheduled.    Again, \nneither Claimant nor  his  attorney  made  an  appearance  at  it.    But  Respondents \nappeared through counsel and argued for dismissal under the foregoing authority. \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 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;  this  claim  for additional \nbenefits  is  hereby  dismissed  without  prejudice  under  AWCC  R. \n099.13. \n\nCHISM – H100341 \n \n6 \n \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 the \nclaim—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 his claim because he has taken no further action in \npursuit of it (including appearing at the May 15, 2025, hearing to argue against its \ndismissal) since the approval of his joint petition for partial settlement on February \n18,  2025.    Thus,  the  evidence  preponderates  that  dismissal  is  warranted  under \nRule 13. \n\nCHISM – H100341 \n \n7 \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  this  claim  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 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. H100341 DEMETRIUS CHISM, EMPLOYEE CLAIMANT LITTLE ROCK SCH. DIST., SELF-INSURED EMPLOYER RESPONDENT RISK MGMT. RESOURCES, THIRD-PARTY ADM’R RESPONDENT OPINION FILED MAY 16, 2025 Hearing before Chief Administrative Law Judge O. Milton Fine II on May 15, 2025, ...","fetched_at":"2026-05-19T22:40:48.365Z","links":{"html":"/opinions/alj-H100341-2025-05-16","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Chism_Demetrius_H100341_20250516.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}