{"id":"alj-H109030-2024-02-23","awcc_number":"H109030","decision_date":"2024-02-23","opinion_type":"alj","claimant_name":"Richard Carpenter","employer_name":"Nibco, Inc","title":"CARPENTER VS. NIBCO, INC. AWCC# H109030 FEBRUARY 23, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":["shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Carpenter_Richard_H109030_20240223.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Carpenter_Richard_H109030_20240223.pdf","text_length":7689,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H109030 \n \n \nRICHARD CARPENTER, EMPLOYEE CLAIMANT \n \nNIBCO, INC., \nEMPLOYER RESPONDENT \n \nLIBERTY INS. CORP., \nCARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 23, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on February 16, 2024, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Michael  C.  Stiles,  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  February 16, 2024, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  was  Respondents’  Exhibit  1,  pleadings,  correspondence \nand forms related to this claim, consisting of 39 numbered pages.  Also, in order \nto  address  adequately  this  matter  under  Ark.  Code  Ann.  § 11-9-705(a)(1)  (Repl. \n2012)(Commission  must “conduct  the  hearing    .  .  .  in  a  manner  which  best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe  record  documents from  the  Commission’s  file  on the  claim,  consisting  of  two \n\nCARPENTER – H109030 \n \n2 \n \npages.   In accordance  with Sapp  v.  Tyson  Foods,  Inc.,  2010  Ark. App.  517, ___ \nS.W.3d  ___,  these  documents  have  been  served  on  the  parties  in  conjunction \nwith this opinion. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on  November  12,  2021, \nClaimant purportedly suffered an injury to his upper extremity, clavicle, or scapula \nat work on April 29, 2021, when he was pushing a heavy pallet with a co-worker.  \nAccording to the Form AR-2 that was  filed on  November 16, 2021,  Respondents \naccepted the claim and paid medical and indemnity benefits pursuant thereto. \n On April 2, 2023, through then-counsel Daniel Wren, Claimant filed a Form \nAR-C.    Therein, he alleged  that  he  was  entitled  to  the  full  range  of  initial  and \nadditional  benefits  as  a  result  of a  compensable  injury  that  he  sustained  to  his \nshoulder.  No hearing request accompanied this filing.  Respondents propounded \ndiscovery   to   Claimant   on   April   21,   2023.      But   responses   thereto   remain \noutstanding. \n On August 25, 2023, Wren moved to withdraw from the case.  In an Order \nentered  on  September  6,  2023,  the  Full  Commission  granted  the  motion  under \nAWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nDecember 12, 2023.   On  that date,  Respondents  filed the  instant motion, asking \nfor dismissal of the claim under AWCC R. 099.13 and Ark. Code Ann. § 11-9-702 \n\nCARPENTER – H109030 \n \n3 \n \n(Repl.  2012).    My  office  wrote  Claimant  on  December 13,  2023,  asking  for  a \nresponse  to  the  motion  within  20  days.    The  letter  was  sent  by  first  class and \ncertified mail to the Blytheville address of Claimant listed in the file and his Form \nAR-C.  While  the  United  States  Postal  Service  was  unable  to  verify  whether \nClaimant  claimed  the  certified  letter,  the  first-class  letter  was  not  returned.  \nRegardless,  no  response  from  Claimant  to  the  motion  was  forthcoming.    On \nJanuary 10, 2024, a hearing on the Motion to Dismiss was scheduled fo r February \n16,  2023,  at  1:30  p.m.  at  the  Craighead  County  Courthouse  in  Jonesboro.  The \nnotice was sent to Claimant via first-class and certified mail to the same address \nas  before.  Once  again,  it  could  not  be  verified  whether  Claimant  signed  for  the \ncertified letter; but the first-class letter was not returned to the Commission. \n The   hearing   on   the   Motion   to   Dismiss   proceeded   as   scheduled   on \nFebruary 16,  2024.  Again,  Claimant  failed  to  appear  at  the  hearing.    But \nRespondents  appeared  through  counsel  and  argued  for  dismissal  under  the \naforementioned 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): \n\nCARPENTER – H109030 \n \n4 \n \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;  this  claim  for  initial \nbenefits is  hereby  dismissed  without  prejudice  under  AWCC  R. \n099.13. \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 \n\nCARPENTER – H109030 \n \n5 \n \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 16,  2024,  hearing  to  argue \nagainst its dismissal) since the filing of his Form AR-C on April 2, 2023.  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 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).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Pr  ofessional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\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\nCARPENTER – H109030 \n \n6 \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      O. MILTON FINE II \n      Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H109030 RICHARD CARPENTER, EMPLOYEE CLAIMANT NIBCO, INC., EMPLOYER RESPONDENT LIBERTY INS. CORP., CARRIER RESPONDENT OPINION FILED FEBRUARY 23, 2024 Hearing before Administrative Law Judge O. Milton Fine II on February 16, 2024, in Jonesboro, Craighead County...","fetched_at":"2026-05-19T22:57:39.387Z","links":{"html":"/opinions/alj-H109030-2024-02-23","pdf":"https://labor.arkansas.gov/wp-content/uploads/Carpenter_Richard_H109030_20240223.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}