{"id":"alj-H109157-2023-04-14","awcc_number":"H109157","decision_date":"2023-04-14","opinion_type":"alj","claimant_name":"James Hamilton","employer_name":"Maxus Properties, Inc","title":"HAMILTON VS. MAXUS PROPERTIES, INC. AWCC# H109157 APRIL 14, 2023","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:1"],"injury_keywords":["shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Hamilton_James_H109157_20230414.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Hamilton_James_H109157_20230414.pdf","text_length":7842,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H109157 \n \n \nJAMES HAMILTON, EMPLOYEE CLAIMANT \n \nMAXUS PROPERTIES, INC., \nEMPLOYER RESPONDENT \n \nACCIDENT FUND INS. CO. AMER., \nCARRIER RESPONDENT \n \n \nOPINION FILED APRIL 14, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on April 12, 2023, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Ms.  Karen  H.  McKinney,  Attorney  at  Law,  Little \nRock, Arkansas. \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 April 12, 2023, in Little \nRock, Arkansas.   Claimant, who is pro se, appeared at the hearing and testified.  \nWithout  objection,  the  Commission’s  file  on  the  claim  has  been  incorporated \nherein  in  its  entirety  by  reference.  Also  admitted  into  evidence  was  Claimant’s \nExhibit  1,  a  one-page  handwritten,  undated  letter\n1\n  by  Claimant  addressed  to  the \nCommission;  and  Respondents’  Exhibit  1,  pleadings,  correspondence  and  forms \nrelated to this claim, consisting of nine pages. \n \n1\nThis is the October 28, 2022, letter discussed infra. \n\nHAMILTON – H109157 \n \n2 \n \n The record reflects the following procedural history: \n Per the First Report of Injury or Illness filed November 17, 2021, Claimant \npurportedly  suffered  an  injury  to  his  shoulder on March  3, 2021, while  shoveling \nsnow  at  work.  According  to  the  Form  AR-2  filed  on  November  17,  2021, \nRespondents  accepted   the   claim   and   paid  medical   and   indemnity   benefits \npursuant thereto. \n Through  then-counsel Laura Beth York on April 22, 2022, Claimant filed a \nForm  AR-C,  alleging  that  he  injured  his  right  shoulder “and other whole  body”  at \nwork on February 15, 2021.  However, no hearing request accompanied the form.  \nYork moved to withdraw on October 18, 2022.  In an order entered on October 28, \n2022, the Full Commission granted the motion under AWCC Advisory 2003-2. \n In  a  handwritten  letter  to  the  Commission  received  by  it  on  October  28, \n2022, Claimant wrote: \nI  James  Hamilton  agreed  with  Laura  Beth  York’s  assistant  on  a \nphone  call  I  receive[d]  from  the  Law  Firm  that  they  resigned  from \nrepresenting  me  that  the  other  company  settled  [the]  issue.    No \nother action is required from me. \n \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nJanuary  24,  2023.   On  that  date,  Respondents’  counsel  filed  the  instant  motion, \nasking  for  dismissal  of  the  claim  because  Claimant  has  not  requested  a  hearing \nwithin six months of the filing of his claim, as required by Ark. Code Ann.  § 11-9-\n702(d)  (Repl.  2012).    On  January  25,  2023,  my  office  wrote  Claimant  counsel, \nasking for a response to the motion  within twenty (20) days.  The letter was sent \n\nHAMILTON – H109157 \n \n3 \n \nvia first-class and certified mail to the address for Claimant listed on his Form AR-\nC.   “Melody  DeLong” signed  for  the  certified  letter on  January  27, 2023;  and  the \nfirst-class  letter  was  not  returned.    Regardless,  no  response  to  the  motion  was \nforthcoming.  On March  2,  2023,  a hearing  on  the  Motion  to  Dismiss  was \nscheduled  fo r  April  12,  2023,  at  11:30  a.m.  at  the  Commission  in  Little  Rock, \nArkansas.  The Notice of Hearing was sent by certified and first-class mail to the \nsame address as before.  Someone with the surname of “Hamilton” signed for the \ncertified  letter  on  March  6,  2023;  and  the  first-class  letter  was  not  returned.  \nClaimant testified that he received this notice. \n The hearing on the Motion to Dismiss proceeded as scheduled on April 12, \n2023.    Again, Claimant appeared at the hearing.  He took the stand and testified \nthat he does not object to dismissal of the claim,  that Respondents have paid all \nof  his  benefits,  and  that  there  is  nothing  to  address  in  a  hearing.    Respondents \nappeared through counsel and argued for dismissal under AWCC R. 099.13 and \nArk. Code Ann. § 11-9-702(d) (Repl. 2012). \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\nHAMILTON – H109157 \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;  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 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\nHAMILTON – H109157 \n \n5 \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  since  the  filing  of  the  Form  AR-C  on  April  22,  2022.    Thus,  the \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  Because  of \nthis finding, it is unnecessary to address the applicability of Ark. Code Ann. § 11-\n9-702(d) (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. 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)).  Respondents  at  the  hearing  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.\n2\n \n \n \n2\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\nHAMILTON – H109157 \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. H109157 JAMES HAMILTON, EMPLOYEE CLAIMANT MAXUS PROPERTIES, INC., EMPLOYER RESPONDENT ACCIDENT FUND INS. CO. AMER., CARRIER RESPONDENT OPINION FILED APRIL 14, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on April 12, 2023, in Little Ro...","fetched_at":"2026-05-19T23:08:30.960Z","links":{"html":"/opinions/alj-H109157-2023-04-14","pdf":"https://labor.arkansas.gov/wp-content/uploads/Hamilton_James_H109157_20230414.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}