{"id":"alj-H104716-2023-05-03","awcc_number":"H104716","decision_date":"2023-05-03","opinion_type":"alj","claimant_name":"Dennis Brewer","employer_name":"City Of West Memphis","title":"BREWER VS. CITY OF WEST MEMPHIS AWCC# H104716 MAY 3, 2023","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//Brewer_Dennis_H104716_20230503.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Brewer_Dennis_H104716_20230503.pdf","text_length":9657,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H104716 \n \n \nDENNIS B. BREWER, DEC’D, EMPLOYEE CLAIMANT \n \nCITY OF WEST MEMPHIS, \nSELF-INSURED EMPLOYER RESPONDENT \n \nARK. MUN. LEAGUE, \nTHIRD-PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED MAY 3, 2023 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  April 28,  2022,  in \nMarion, Crittenden County, Arkansas. \n \nClaimant  (through  his  widow  Dorothy  Brewer)  represented  by  Mr.  Kenneth  A. \nOlsen, Attorney at Law, Bryant, Arkansas (neither appearing). \n \nRespondents  represented  by  Mr.  Jarrod  S.  Parrish,  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  April  28,  2023,  in \nMarion,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant’s  estate \n(through  his  widow  Dorothy  Brewer) failed  to  appear  at  the  hearing;  and  his \ncounsel waived his appearance.  Without objection, the Commission’s file on the \nclaim has  been  incorporated  herein  in  its entirety  by  reference.  Admitted  into \nevidence  was  Respondents’  Exhibit  1—forms,  pleadings  and  correspondence \nrelated to the claim—consisting of one (1) index page and twelve (12) numbered \npages thereafter. \n\nBREWER – H 104716 \n \n2 \n \n \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on  June  2,  2021,  Claimant \npurportedly  contracted  cancer  as  a  result  of  exposure  to  certain  chemicals  at \nwork,  resulting  in  his  death  on  May  31,  2020.    According  to  the  Form AR-2  that \nwas filed on June 4, 2021, Respondents controverted the claim in its entirety. \n On September  27, 2021,  Claimant’s estate  (through  counsel)  filed a  Form \nAR-C, requesting initial benefits in connection with his alleged injury.  No hearing \nrequest  accompanied  this  filing.    In  response,  Respondent  Arkansas  Municipal \nLeague wrote the Commission on September 28, 2021, reiterating that they were \ncontroverting the claim.  Respondents’ counsel entered their appearance thereon. \n On   August   10,   2022,   Claimant’s   counsel   emailed   the   Commission, \nrequesting a  hearing on  this  claim.    The  file was  assigned  to me  that  same day.  \nOn  August  11,  2022,  I  sent  prehearing  questionnaires  to  the  parties.   When \nClaimant’s  response  was  not  timely  filed,  Respondents  on  September  12,  2022, \nfiled  the  instant  Motion  to  Dismiss.    Therein,  they  alleged  that  dismissal  of  the \nclaim  was  called  for  under  AWCC  R.  099.13  and  Ark.  Code  Ann.  § 11-9-702 \nbecause “Claimant  ha[d]  not  sought  any  type  of  bona  fide  hearing  before  the \nWorkers’  Compensation  Commission  over  the  last  six  months.”  That  day,  I \nemailed Claimant’s counsel, informing him that he had until September 16, 2022, \nto  respond  to  the  questionnaire  in  order  for  me  to  hold  the  Motion  to  Dismiss  in \nabeyance.    Claimant  complied;  on  September  16,  2022,  Claimant’s  response  to \n\nBREWER – H 104716 \n \n3 \n \n \nthe prehearing questionnaire was belatedly filed.  Respondents followed suit that \nsame  day.  A  prehearing  telephone  conference  was  scheduled  for  October 24, \n2022.  At that conference, the parties agreed that the file should be returned to the \nCommission’s  general  files  for  the  time  being  to  allow  for  the  completion  of \ndiscovery.    However,  Respondents  reserved  the  right  to  renew  their  Motion  to \nDismiss at the appropriate time if the case did not proceed. \n Respondents did just that on December 2, 2022, informing the Commission \nby letter that they were renewing their motion.  On December 15, 2022, I emailed \nthe parties, stating: \nRespectfully,  I  think  this  renewal  is  a  bit  premature.    For  that \nreason, I am going to continue to hold the motion in abeyance and \ndiary  this  for  60  days.    If  no  appreciable  progress  has  been  made \non this by then, my office will schedule a hearing on the motion. \n \nHowever,  after  the  60-day  deadline  came  and  went  without  further  action  by \nClaimant’s counsel, on February 17, 2023, I scheduled a hearing on the Motion to \nDismiss for April 28, 2023, at 10:30 a.m. at the Crittenden County Courthouse in \nMarion.    The  hearing  notice  was  sent  not  only  to  the  attorneys  of  record,  but  to \nMs.  Brewer  at  the  address  for  her  listed  in  the  file  and  on  the  Form  AR-C.    She \nsigned for the certified mail on February 23, 2023; and the first-class mail was not \nreturned. \n On April 24, 2023, Claimant’s counsel wrote the Commission, stating: \nWhile  I  agree  that  I  have  not  been  diligent  in  following  up  on \nwhether  medical  records  were  requested  and  received,  please \n\nBREWER – H 104716 \n \n4 \n \n \naccept  this  letter  as  Objection  to  dismissal,  and  request  for  a  full \nhearing. \n \nRespondents’  co-counsel  objected  to  this  in  an  email  sent  on  April  26,  2023, \npointing out, inter alia, that the objection was very late in coming.  Agreeing with \ntheir  position,  I  informed  the  parties  that  day  that  the  hearing  would  remain  as \nscheduled.    The  next  day,  on  April  27,  2023,  Claimant’s  counsel  emailed \nRespondents’  co-counsel  and  myself,  advising  that  he  was  withdrawing  his \nobjection  to  the  Motion  to  Dismiss.    In  a  follow-up  email,  Claimant’s  counsel \nadvised that he would not be attending the hearing. \n The hearing on the Motion to Dismiss proceeded as scheduled on April 28, \n2023.  Both  Claimant’s  estate  (through  Ms. Brewer) and  counsel  therefor  waived \ntheir appearance; but, again, counsel has indicated no objection to a dismissal of \nthis  claim.    Respondents  appeared  through  counsel  and  argued  for  dismissal \nunder the aforementioned authorities. \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 claim. \n\nBREWER – H 104716 \n \n5 \n \n \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. \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 \nthese  matters–by  a  preponderance  of  the  evidence.    This  standard  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) \n\nBREWER – H 104716 \n \n6 \n \n \nClaimant  has  failed  to  pursue the  claim  because  his  estate  has  taken  no  further \naction  in  pursuit  of it—including  appearing  at  the  April  28,  2023,  hearing  on  the \nMotion  to  Dismiss—since  the  prehearing  telephone  conference  on  October  24, \n2022.  Thus, the evidence preponderates that dismissal is warranted under Rule \n13.  Because of this finding, it is unnecessary to address the applicability of  Ark. \nCode Ann. § 11-9-702(a)(4) (Repl. 2012). \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  510,  Claim  No.  F404774  (Full  Commission  Opinion  filed  November  15, \n2005), the Commission wrote:  “In numerous past decisions, this Commission and \nthe   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  (through  counsel)  at  the \nhearing asked for a dismissal without prejudice.  Based on the above authorities, I \nagree  and  find  that  the  dismissal  of  the  claim  should  be  and  hereby  is  entered \nwithout prejudice. \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\nBREWER – H 104716 \n \n7 \n \n \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. H104716 DENNIS B. BREWER, DEC’D, EMPLOYEE CLAIMANT CITY OF WEST MEMPHIS, SELF-INSURED EMPLOYER RESPONDENT ARK. MUN. LEAGUE, THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED MAY 3, 2023 Hearing before Administrative Law Judge O. Milton Fine II on April 28, 2...","fetched_at":"2026-05-19T23:07:11.676Z","links":{"html":"/opinions/alj-H104716-2023-05-03","pdf":"https://labor.arkansas.gov/wp-content/uploads//Brewer_Dennis_H104716_20230503.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}