{"id":"alj-H103741-2024-01-03","awcc_number":"H103741","decision_date":"2024-01-03","opinion_type":"alj","claimant_name":"Tavares Richardson","employer_name":"Hino Motors Mfg. USA, Inc","title":"RICHARDSON VS. HINO MOTORS MFG. USA, INC. AWCC# H103741 JANUARY 3, 2024","outcome":"dismissed","outcome_keywords":["dismissed:6"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Richardson_Tavares_H103741_20240103.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Richardson_Tavares_H103741_20240103.pdf","text_length":11301,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H103741 \n \n \nTAVARES D. RICHARDSON, EMPLOYEE CLAIMANT \n \nHINO MOTORS MFG. USA, INC., \nEMPLOYER RESPONDENT \n \nFIRST LIBERTY INS. CORP., \nCARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 3, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on December 22, 2023, \nin Marion, Crittenden County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Zachary F. Ryburn, 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 December 22, 2023, in \nMarion, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.    Admitted  into \nevidence  was  Respondents’  Exhibit  1,  pleadings,  correspondence  and  forms \nrelated to this claim, consisting of six pages.  Also, in order to address adequately \nthis matter 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   forms, \npleadings,   and   correspondence from   the   Commission’s   file   on   the   claim, \n\nRICHARDSON – H103741 \n \n2 \n \nconsisting of 58 pages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. \nApp. 517, ___ S.W.3d ___, these documents have been served on the parties in \nconjunction with this opinion. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on  May  7,  2021,  Claimant \npurportedly suffered, inter alia, a fractured nose at work on April 8, 2021, when he \nwas assaulted by a co-worker.  According to the Form AR-2 that was also filed on \nMay 19, 2021, Respondents denied the claim on the basis that the altercation was \nallegedly unrelated to Claimant’s employment.  He filed a form on April 26, 2021, \nin  which  he  represented  that  he  suffered  injuries  to  his  head  and  brain  as  well.  \nClaimant   added:    “Without   continued   employment   and   without   health   care \ncoverage, I cannot receive the vital medical attention needed.” \n On  April  26,  2021,  Claimant  filed  a  Form  AR-C,  alleging  that  he  was \nentitled  to  medical  expenses  and  lost  wages  due  to  his  alleged  work-related \ninjuries.    No  hearing  request  accompanied  this  filing.    Later,  on  June  1,  2021, \nAttorney  Matthew  Ketcham  entered  an  appearance  on  his  behalf  before  the \nCommission and filed another Form AR-C.  In this instance, the full range of initial \nand additional benefits was requested.  As before, no hearing was sought. \n On  February  22,  2022,  Respondents  moved  to  dismiss  the  claim.    In \nresponse to a February 25, 2022, letter from my office, Ketcham on February 28, \n2022,  objected  to  dismissal  and  requested  a  hearing.    I  took  the  motion  under \n\nRICHARDSON – H103741 \n \n3 \n \nadvisement  and  issued  prehearing  questionnaires  to  the  parties  on  March  2, \n2022.    Claimant  filed  a  timely  response  thereto  on  March  23,  2022,  and \nRespondents  followed  suit  on  March  25,  2022.    During  the  May  9,  2022, \nprehearing  telephone  conference,  the  parties  agreed  that  the  file  should  be \nreturned to the Commission’s general files.  It was returned that same day. \n On  February  6,  2023,  Respondents  filed  another  Motion  to  Dismiss.    My \noffice wrote Ketcham on February 15, 2023, requesting a response thereto within \n20 days.  He did so on March 7, 2023, again asking for a hearing on the merits of \nthe claim.  As before, I held the motion in abeyance and scheduled a prehearing \ntelephone conference.   In the meantime, on March 27, 2023, Ketcham moved  to \nwithdraw  from  his  representation  of  Claimant.    In  an  Order  ended  on  May  17, \n2023,  I  granted  the  motion  under  AWCC  Advisory  2003-2  and  scheduled  a \nprehearing  telephone conference  for  June 5,  2023.    Due  to  a miscommunication \non that date, the conference was re-set for June 12, 2023. \n The   prehearing   conference   took   place   as   scheduled,   with   Claimant \nappearing pro se.  Following the conference, I issued a Prehearing Order that set \na hearing for August 25, 2023, on the following issues: \n1. Whether  Claimant  sustained  a  compensable  injury  to  his  face  and \nhead by specific incident. \n2. Whether  Claimant  is  entitled  to  reasonable  and  necessary  medical \ntreatment. \n\nRICHARDSON – H103741 \n \n4 \n \n3. Whether Claimant is entitled to temporary total disability benefits. \nHowever,  on  August  23,  2023,  Claimant  contacted  my  office  and  stated  that  he \nwanted  to  cancel  the  hearing.    I  granted  the  request  and  returned  the  file  to the \nCommission’s general files. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nSeptember  19,  2023.   On  that  date,  Respondents  filed  the  instant  motion,  again \nasking  for  dismissal  of  the  claim.    My  office  wrote  Claimant  on  September  20, \n2023, asking for a response to the motion within 20 days.  The letter was sent by \nfirst class and certified mail to the West Memphis address of Claimant listed in the \nfile,  the  accuracy  of  which  was  confirmed  during  the  June  12,  2023,  prehearing \ntelephone conference.  It is unknown at present whether  Claimant signed for the \ncertified  letter.    However,  the  first-class  letter  was  not  returned.    Regardless,  no \nresponse from Claimant to the motion was forthcoming.  On October 13, 2023, a \nhearing on the Motion to Dismiss was scheduled fo r December 22, 2023, at 10:30 \na.m.  at  the  Crittenden  County  Courthouse  in  Marion.  The  notice  was  sent  to \nClaimant  via  first-class  and  certified  mail  to  the  same  address  as  before.  A \nperson  with  an  illegible  signature  signed  for  the  certified  letter on October 17, \n2023; and the first-class letter was not returned to the Commission. \n\nRICHARDSON – H103741 \n \n5 \n \n Claimant wrote my office on November 20, 2023: \nRE:  WCC File NO:  H103741 \n \nTo Whom It May Concern: \n \nI  Tavares  Richardson  acknowledge  that  this  letter  is  a  request  to \ncancel/closed   [sic]   my   upcoming   court   hearing   on   Friday, \nDecember   22,   2023 at   the   Crittenden   County   Courthouse   in \nMarion,  Arkansas.    Due to  personal  matters,  I  will  be  out  of  town \nduring that time.  I will no longer pursue this case matter further.  I \napologize for any inconvenience this may have cause[d] and I hope \nthat  you  can  process  this  cancellation  of  this  hearing  and  closed \n[sic]  this  case  as  soon  as  possible.    Thank  you  for  your  time  and \nunderstanding regarding this matter. \n \nHowever,   I   notified   the   parties   by   letter   on   November   20,   2023,   that, \nnotwithstanding  the  above  request,  the  hearing  would  remain  as  scheduled.  \nWhile  it  could  not  be  confirmed  that  Claimant  signed  for  the  certified  letter,  the \nfirst-class one was not returned. \n The   hearing   on   the   Motion   to   Dismiss   proceeded   as   scheduled   on \nDecember 22,  2023.  Again,  Claimant  failed  to  appear  at  the  hearing.    But \nRespondents  appeared  through  counsel  and  argued  for  dismissal  under  AWCC \nR. 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): \n\nRICHARDSON – H103741 \n \n6 \n \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;  this  claim  for  initial  benefits is \nhereby dismissed 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 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\nRICHARDSON – H103741 \n \n7 \n \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  December 22,  2023,  hearing  to  argue \nagainst its dismissal) since the cancellation of the full hearing on August 23, 2023.  \nAs his November 20, 2023, letter makes clear, he has no intention of pursuing this \nclaim any further.   Thus, the evidence preponderates that dismissal is warranted \nunder 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 Pr  ofessional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629  S.W.2d  284  (1982)).  At  the  hearing,  Respondents  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\nRICHARDSON – H103741 \n \n8 \n \nIV.  CONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim for initial benefits 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. H103741 TAVARES D. RICHARDSON, EMPLOYEE CLAIMANT HINO MOTORS MFG. USA, INC., EMPLOYER RESPONDENT FIRST LIBERTY INS. CORP., CARRIER RESPONDENT OPINION FILED JANUARY 3, 2024 Hearing before Administrative Law Judge O. Milton Fine II on December 22, 2023, in Mari...","fetched_at":"2026-05-19T22:58:00.512Z","links":{"html":"/opinions/alj-H103741-2024-01-03","pdf":"https://labor.arkansas.gov/wp-content/uploads/Richardson_Tavares_H103741_20240103.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}