{"id":"alj-H100357-2023-01-13","awcc_number":"H100357","decision_date":"2023-01-13","opinion_type":"alj","claimant_name":"Wyllow Tree","employer_name":"Metro Builders & Restoration","title":"TREE VS. METRO BUILDERS & RESTORATION AWCC# H100357 JANUARY 13, 2023","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:1"],"injury_keywords":["knee","ankle"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Tree_Wyllow_H100357_20230113.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Tree_Wyllow_H100357_20230113.pdf","text_length":7594,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H100357 \n \n \nWYLLOW TREE, EMPLOYEE CLAIMANT \n \nMETRO BUILDERS & RESTORATION, \n EMPLOYER RESPONDENT \n \nALLIED EASTERN INDEMN. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 13, 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.  R.  Scott  Zuerker,  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. R. Scott Zuerker, Attorney at \nLaw, of Fort Smith, Arkansas.  The record consists of the Commission’s file, which \nhas been incorporated herein in its entirety by reference without objection. \n The  evidence  reflects  that  per  the  First  Report  of  Injury  or  Illness  filed  on \nJanuary  11,  2021,  Claimant  purportedly  injured  her  right  knee  at  work  on \nDecember 28, 2020.  According to the Forms AR-2 that were filed on January 11 \n\nTREE – H100357 \n2 \n \nand 27, 2021, Respondents accepted the  claim and paid  medical and temporary \ntotal disability benefits pursuant thereto. \n Attorney Laura Beth York entered her appearance on behalf of Claimant on \nApril  8,  2022;  and  on  that  same  date,  she filed  a  Form  AR-C.    Therein,  she \nrequested the full range of initial and additional benefits and alleged that her client \nhurt her “right knee, right ankle, and other whole body” at work on December 20, \n2020.  Respondents’ counsel entered his appearance on April 19, 2022. \n On  June  27,  2022,  York  moved  to  withdraw  from  her  representation  of \nClaimant.  In an Order entered on July 7, 2022, the Full Commission granted the \nmotion under AWCC Advisory 2003-2. \n On  October 11,  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(a)(4)\n1\n  (Repl.  2012)  because  Claimant  has  not \nrequested a hearing and “has had reasonable time to move forward with this claim \nbut  has  failed  to  do  so.”  The  case  was  assigned  to  Administrative  Law  Judge \nTerry  Don  Lucy on October 12,  2022;  and  on  October  14,  2022,  he  wrote \nClaimant, requesting a response to the motion within 20 days.  The letter was sent \nby first-class and certified mail to the address listed by Claimant on her Form AR-\nC.      The   certified   letter   was   returned   to   the   Commission,   undelivered,   on \nNovember  21,  2022; but  the  first-class  letter  was  not  returned.    Regardless,  no \n \n1\nBecause  this  is  a  claim  for  additional  benefits,  the  applicable  provision  is \nArk. Code Ann. § 11-9-702(d) (Repl. 2012). \n\nTREE – H100357 \n3 \n \nresponse  to  the  motion  was  forthcoming.    On  November  15,  2022,  a  hearing  on \nthe   motion   was   scheduled   for   December   22,   2022,   at   9:30 a.m.   at   the \nCommission  in  Little  Rock.  Later,  on  November  30,  2022,  the  hearing  was \nrescheduled for the same location on January 12, 2023 at 11:30 a.m.  The notice \nwas  sent  to  Claimant  by  first-class  and  certified  mail  at  the  same  address  as \nbefore.   In  this  instance,  the  certified  letter  was  claimed  by  her  on  December  6, \n2022;   and   the   first-class   letter   was   not   returned.      The   evidence   thus \npreponderates that Claimant received notice of the hearing. \n The hearing  on the  Motion to  Dismiss proceeded before me as scheduled \non  January  12,  2023.    Again,  Claimant  failed  to  appear.    But  Respondents \nappeared  through  counsel  and  argued  for  dismissal  of  the  action  under  the \naforementioned authorities. \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 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 \nher claim under AWCC R. 099.13. \n\nTREE – H100357 \n4 \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 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) \nClaimant has failed to pursue her claim because  she has taken no further action \nin  pursuit  of it  (including  appearing  at  the  January  12,  2023,  hearing  to  argue \nagainst its dismissal) since the filing of her Form AR-C on April 8, 2022.  Thus, the \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  Because  of \nthis finding, it is unnecessary to address the application of § 11-9-702. \n\nTREE – H100357 \n5 \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).    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.\n2\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      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n2\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. H100357 WYLLOW TREE, EMPLOYEE CLAIMANT METRO BUILDERS & RESTORATION, EMPLOYER RESPONDENT ALLIED EASTERN INDEMN. CO., CARRIER RESPONDENT OPINION FILED JANUARY 13, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on January 12, 2023, in Litt...","fetched_at":"2026-05-19T23:11:27.527Z","links":{"html":"/opinions/alj-H100357-2023-01-13","pdf":"https://labor.arkansas.gov/wp-content/uploads/Tree_Wyllow_H100357_20230113.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}