{"id":"alj-H104220-2023-07-25","awcc_number":"H104220","decision_date":"2023-07-25","opinion_type":"alj","claimant_name":"Claudia Baldridge","employer_name":"Spring River Lp Gas, Inc","title":"BALDRIDGE VS. SPRING RIVER LP GAS, INC. AWCC# H104220 JULY 25, 2023","outcome":"dismissed","outcome_keywords":["dismissed:6","granted:2"],"injury_keywords":["knee"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//Baldridge_Claudia_H104220_20230725.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Baldridge_Claudia_H104220_20230725.pdf","text_length":9342,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H104220 \n \n \nCLAUDIA BALDRIDGE, EMPLOYEE CLAIMANT \n \nSPRING RIVER LP GAS, INC., \n EMPLOYER RESPONDENT \n \nWELLFLEET NY INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JULY 25, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  July  21, \n2023, in Jonesboro, Craighead 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 a Motion to Dismiss filed by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  July  21,  2023,  in \nJonesboro,  Arkansas.    Claimant,  who  is pro  se,  failed  to  appear.  Respondents \nwere  represented  at  the hearing  by  Mr.  Randy  P.  Murphy,  Attorney  at  Law,  of \nLittle  Rock,  Arkansas.    The  record  consists  of the  Commission’s  file,  which—\nwithout objection—has been incorporated herein in its entirety by reference. \n The evidence reflects that  per the First Report of Injury or Illness filed on \nMay 14, 2021, Claimant purportedly injured her right knee at work on December \n24, 2020, while getting out of her office chair.  According to the  Form AR-2 that \nwas  filed  on  May  17,  2021,  Respondents  accepted  the  injury  as  compensable \n\nBALDRIDGE – H104220 \n \n2 \nand  paid  medical  and  indemnity  benefits  pursuant  thereto.  Claimant’s  then-\ncounsel,  Laura  Beth  York,  entered  her  appearance  before  the  Commission  on \nthe   matter   on   July   28,   2021,   and   requested   a   hearing   on   the   matter.  \nAccompanying  this  correspondence  was  a  prehearing  questionnaire  response.  \nThe file was assigned to me on July 29, 2021; and that same day, my office sent \na prehearing questionnaire to Respondents.  Through  their counsel, they filed a \ntimely response thereto on August 23, 2021. \n A  prehearing  telephone  conference  was  scheduled  for  September  21, \n2021.    At  that  conference,  the  parties  agreed  to  another  one  that was  set  for \nOctober  18,  2021.    Thereafter,  on  September  23,  2021,  Claimant  filed  a  Form \nAR-C, asking for initial and additional benefits.  Claimant alleged therein that she \ninjured  not  only  her  right  knee,  but  also  her “other  whole  body.”  Following  the \nsecond   prehearing   telephone   conference,   a   hearing   was   scheduled   for \nNovember 19, 2021, on the following issues: \n1. Whether Claimant is entitled to additional medical treatment. \n2.  Whether Claimant is entitled to temporary total disability benefits. \n3. Whether Claimant is entitled to a controverted attorney’s fee. \nClaimant filed a copy of their medical exhibit with the Commission on November \n8,  2021.    That  same  day,  however,  the  parties  agreed  to  a  continuance  of  the \nhearing  to  December  17,  2021.    On  December  15,  2021,  York  advised  the \nCommission  by  email  that  because “Respondents  have  agreed  to  pay  for  the \nrecommended  surgery,”  she  was  withdrawing  her  client’s  hearing  request.  \n\nBALDRIDGE – H104220 \n \n3 \nBased  on  this,  the  hearing  was  cancelled,  and  the  file  was  returned  to  the \nCommission’s general  files on  December  15,  2021.  Even  though  the first  Form \nAR-C  was  never  dismissed,  Claimant’s  counsel  filed  it  again  on  November  28, \n2022.  A handwritten notation at the top of the form indicated that this action was \nbeing taken for “[s]tatute [p]urposes.” \n The  record  reflects  that  no  further  activity  occurred  in  this  matter  until \nFebruary  28,  2023.    On that  date,  Respondents  filed  the  instant  Motion  to \nDismiss.    Therein,  they  argued  that  dismissal  was  warranted  under  AWCC  R. \n099.13 and Ark. Code Ann. § 11-9-702 (Repl. 2012) because of Claimant’s “lack \nof prosecution” of this claim.  On March 27, 2023, I sent a letter to Claimant and \nher  counsel,  requesting  a  response  to  the  motion  within  20  days.    The  letter  to \nClaimant  was  sent  by  both  first-class  and  certified  mail  to  the  address  for  her \nlisted in her Forms AR-C.  She signed for the certified letter on April 5, 2023; and \nthe first-class letter was not returned.  No response to the Motion to Dismiss was \nforthcoming from either Claimant or her attorney, however. \n In  the  meantime,  on  April  20,  2023,  York  filed  a  motion  to  withdraw  from \nthe  case.    This  motion  was  inadvertently  assigned  to  the  Full  Commission \ninstead of the undersigned; and on May 2, 2023, the Full Commission granted it \nunder AWCC Advisory 2003-2. \n On  May  9,  2023,  a  hearing  on  the  Motion  to  Dismiss  was  scheduled  for \nJuly 21, 2023, at 10:30 a.m. at the Craighead County Courthouse in Jonesboro.  \nThe notice  was  sent  to  Claimant  by  first-class  and  certified  mail  at  the  address \n\nBALDRIDGE – H104220 \n \n4 \nlisted  on  her Forms  AR-C.    The  certified  letter  was  claimed  by  her on May  23, \n2021;   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 as scheduled on July 21, \n2023.    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 \nFindings  of  Fact  and  Conclusions  of  Law  in  accordance  with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \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 \nthis 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. \n\nBALDRIDGE – H104220 \n \n5 \nIII.  DISCUSSION \n AWCC 099.13 provides: \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).  (Emphasis added)  Under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), \nRespondents  must  prove  by  a  preponderance  of  the  evidence  that  dismissal \nshould  be  granted.    The  standard  “preponderance  of  the evidence”  means  the \nevidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. \n373,  326  S.W.3d  415;  Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (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 July 21, 2023, hearing to argue against \nits dismissal) since the re-filing of her Form AR-C on November 28, 2022.  Thus, \nthe evidence preponderates that dismissal is warranted under Rule 099.13.  The \nMotion to Dismiss is hereby granted.  Because of this finding, the application of \nArk. Code Ann. § 11-9-702 (Repl. 2012) is moot and will not be addressed. \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 \n\nBALDRIDGE – H104220 \n \n6 \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 510,  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 Professional  Adjustment  Bureau  v.  Strong, \n75  Ark.  249,  629  S.W.2d  284  (1982)).    Respondents  at  the hearing  asked  for  a \ndismissal without prejudice.  But based on the above authorities, I agree and find \nthat  the  dismissal  of  the  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nCONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim\n2\n 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  L  AW  DICTIONARY  825  (abridged  5\nth\n  ed. \n1983). \n \n \n2\nThe  term “claim” encompasses  both  active,  identical,  Forms  AR-C,  filed \non September  23,  2021,  and  on  November  28,  2022.  With  this  dismissal,  no \nactive Forms AR-C remain.","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H104220 CLAUDIA BALDRIDGE, EMPLOYEE CLAIMANT SPRING RIVER LP GAS, INC., EMPLOYER RESPONDENT WELLFLEET NY INS. CO., CARRIER RESPONDENT OPINION FILED JULY 25, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on July 21, 2023, in Jonesboro, C...","fetched_at":"2026-05-19T23:05:39.630Z","links":{"html":"/opinions/alj-H104220-2023-07-25","pdf":"https://labor.arkansas.gov/wp-content/uploads//Baldridge_Claudia_H104220_20230725.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}