{"id":"alj-H108542-2023-02-27","awcc_number":"H108542","decision_date":"2023-02-27","opinion_type":"alj","claimant_name":"Marlon Pettigrew","employer_name":"Smyrna Ready Mix Concrete, LLC","title":"PETTIGREW VS. SMYRNA READY MIX CONCRETE, LLC AWCC# H108542 FEBRUARY 27, 2023","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:1"],"injury_keywords":["neck","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Pettigrew_Marlon_H108542_20230227.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Pettigrew_Marlon_H108542_20230227.pdf","text_length":7289,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H108542 \n \n \nMARLON W. PETTIGREW, EMPLOYEE CLAIMANT \n \nSMYRNA READY MIX CONCRETE, LLC, \n EMPLOYER RESPONDENT \n \nTRAVELERS INDEMN. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 27, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on  February 23, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Guy  Alton  Wade,  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  February \n23,  2023,  in  Little  Rock,  Arkansas.    Claimant,  who  is pro  se,  failed  to appear.  \nRespondents were represented at the hearing by Mr. Guy Alton Wade, Attorney at \nLaw,  of  Little  Rock,  Arkansas.    The  record  consists  of the  Commission’s  file, \nwhich has been incorporated herein in its entirety by reference without objection.  \nAlso  admitted  into  evidence  was  Respondents’  Exhibit  1,  comprised of  forms, \npleadings and correspondence related to this claim, consisting of 24 pages. \n\nPETTIGREW – H108542 \n2 \n \n The  record  reflects  that  per  the  First  Report  of  Injury  or  Illness  filed  on \nOctober  25,  2021,  Claimant  purportedly  was  injured  in  a  work-related  motor \nvehicle  accident  on  October  16,  2021.    According  to  the  Forms AR-2  that  were \nfiled  on  October  26,  2021,  and  April  14,  2022,  Respondents  controverted  the \nclaim in its entirety. \n Attorney Laura Beth York entered her appearance on behalf of Claimant on \nApril 11,  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 his “neck, back, and other whole body” at work on the date in question. \n On  June  8,  2022,  York  moved  to  withdraw  from  her  representation  of \nClaimant.    In  an  Order  entered  on June  21,  2022,  the  Full  Commission  granted \nthe motion under AWCC Advisory 2003-2. \n On  October  14,  2022  ,  Respondents  filed  the  instant  Motion  to  Dismiss.  \nTherein,  they  argued  that  dismissal  was  warranted  under AWCC  R.  099.13  for \n“lack of prosecution” of the claim.  The case was assigned to me on October 18, \n2022; and on October 20, 2022, my office wrote Claimant, requesting a response \nto the motion within 20 days.  The letter was sent by first-class and certified mail \nto  the  address  listed  by  Claimant  on  his  Form  AR-C.    He  signed  for  the  certified \nletter  on  October  26,  2022;  and  the  first-class  letter  was  not  returned  to  the \nCommission.    Regardless, no response  to  the  motion  was  forthcoming.    On \nNovember 30,  2022,  a  hearing  on  the  motion  was  scheduled  for  January  26, \n2023, at 11:3 0 a.m. at the Commission in Little Rock.  Later, on January 20, 2023, \n\nPETTIGREW – H108542 \n3 \n \nthe hearing was rescheduled for the same location on February 23, 2023, at 10:30 \na.m.  The notice was sent to Claimant by first-class and certified mail at the same \naddress  as  before.   In  this  instance,  the  certified  letter  was  claimed  by  him  on \nJanuary 28, 2023; 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  February 23,  2023.    Again,  Claimant  failed  to  appear.    But  Respondents \nappeared  through  counsel  and  argued  for  dismissal  of  the  action  under  the \naforementioned authority. \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 \nhis 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\nPETTIGREW – H108542 \n4 \n \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 his claim because he has taken no further action in \npursuit  of it  (including  appearing  at  the  February 23,  2023,  hearing  to  argue \nagainst  its  dismissal)  since  the  filing of  his Form  AR-C  on  April 11,  2022.    Thus, \nthe evidence preponderates that dismissal is warranted under Rule 13.  Because \nof this finding, it is unnecessary to address the application of § 11-9-702. \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. \n\nPETTIGREW – H108542 \n5 \n \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.\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      ________________________________ \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. H108542 MARLON W. PETTIGREW, EMPLOYEE CLAIMANT SMYRNA READY MIX CONCRETE, LLC, EMPLOYER RESPONDENT TRAVELERS INDEMN. CO., CARRIER RESPONDENT OPINION FILED FEBRUARY 27, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on February 23, 2023, ...","fetched_at":"2026-05-19T23:10:41.466Z","links":{"html":"/opinions/alj-H108542-2023-02-27","pdf":"https://labor.arkansas.gov/wp-content/uploads/Pettigrew_Marlon_H108542_20230227.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}