{"id":"alj-H109610-2023-07-18","awcc_number":"H109610","decision_date":"2023-07-18","opinion_type":"alj","claimant_name":"Candace Williams","employer_name":"Prysmian Group","title":"WILLIAMS VS. PRYSMIAN GROUP AWCC# H109610 JULY 18, 2023","outcome":"dismissed","outcome_keywords":["dismissed:9","granted:1"],"injury_keywords":["ankle"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Williams_Candace_H109610_20230718.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Williams_Candace_H109610_20230718.pdf","text_length":7881,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H109610 \n \n \nCANDACE M. WILLIAMS, EMPLOYEE CLAIMANT \n \nPRYSMIAN GROUP, \n EMPLOYER RESPONDENT \n \nTRAVELERS INDEMN. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JULY 18, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on July 14, 2023, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Ms. Amy C. Markham, Attorney at Law, Jonesboro, \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  July  14,  2023,  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.    At \nRespondents’ request, the Commission’s file on the claim has been incorporated \nherein in its entirety by reference. \n The record reveals the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed on  December  14,  2021, \nClaimant purportedly injured her ankle at work on March 22, 2021.  According to \n\nWILLIAMS – H109610 \n2 \n \nthe Form AR-2 that was filed on December 15, 2022, Respondents accepted the \nclaim as a medical-only one and paid benefits pursuant thereto. \n Claimant  filed  a  Form  AR-C on December  9,  2021,  asking  for  temporary \ntotal disability benefits and an attorney’s fee.  Therein, she alleged that when she \ninjured her ankle, she sustained “some ligament damage.”  In correspondence to \nthe   Commission   on   January   10,   2022,   Respondents’   counsel   entered   her \nappearance and represented that her clients’ position that had been expressed in \nthe Form AR-2 had not changed. \nOn January  7,  2022,  Respondents  propounded  discovery  to  Claimant.  \nThis  discovery,  in  the  form  of  interrogatories  and  request  for  production  of \ndocuments,  went  unanswered.    On  May  12,  2022,  Respondents  moved  for  an \norder  compelling  Claimant  to  respond  to  the  discovery.    On  June  1,  2022, then-\nAdministrative  Law  Judge  Terry  Don  Lucy  entered  this  order.    However,  when \nClaimant  failed  to  comply  as  directed,  Judge  Lucy  returned  the  file  to  the \nCommission’s general files. \n The record reflects that no further action took place on this claim until April \n14,  2023,  when  Respondents  filed  the  instant  Motion  to  Dismiss.    Therein,  they \nargued  that  dismissal  of  the  claim  was  warranted  under  AWCC  R.  099.13  and \nArk. Code Ann. § 11-9-702(a)(4)\n1\n (Repl. 2012), and alleged that Claimant has not \nmade a bona fide hearing request to the Commission within the past six months.  \n \n \n1\nSince  Respondents  accepted  this  claim  and  paid  medical  benefits,  the \napplicable provision is § 11-9-702(d). \n\nWILLIAMS – H109610 \n3 \n \nThe  file  was  assigned  to  Administrative  Law  Judge  Steven  Porch  on  April  17, \n2023.  On April 27, 2023, his office wrote Claimant at the address she supplied on \nthe Form AR-C, asking for a response to the motion within 20 days.  This certified \nletter  was  claimed  by “Lesley Williams”  on May  1,  2023;  and the first-class  letter \nwas not returned.  Nonetheless, no response from Claimant was forthcoming.  On \nMay  24,  2023,  a  hearing  on  Respondents’  motion  was  scheduled  for July  14, \n2023, at 11:00 a.m. at the Craighead County Courthouse in Jonesboro, Arkansas.  \nThe Notice of Hearing was sent to Claimant by certified and first-class mail to the \nsame address as before.   In this instance,  Claimant  signed for the certified letter \non  May  27,  2023.    As  before,  the  first-class  letter  was  not  returned.    Thus,  the \nevidence preponderates that the notice reached its proper destination. \n The   hearing   proceeded   as   scheduled  on   July   14,  2023,  before   the \nundersigned.  Again, Claimant failed to appear at the hearing.  But Respondents \nappeared  through  counsel  and  argued  for  dismissal  under  the  aforementioned \nauthorities as well as AWCC R. 099.13. \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  over \nthis claim. \n\nWILLIAMS – H109610 \n4 \n \n2. The parties were provided reasonable notice of the  Motion to Dismiss and \nof the hearing thereon. \n3. Respondents  have  proven  by  a  preponderance  of  the  evidence  that \nClaimant has failed to prosecute her claim. \n4. Respondents  have  proven  by  a  preponderance  of  the  evidence  that  this \nclaim should be dismissed under AWCC R. 099.13. \n5. The Motion to Dismiss is hereby granted. \n6. This claim is hereby dismissed without prejudice. \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)(discussing, inter alia, Rule 13). \n Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must \nprove  by  a  preponderance  of  the  evidence  that  this  claim  should  be  dismissed.  \nThis  standard  means  the  evidence  having  greater  weight  or  convincing  force.  \nBarre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.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\nWILLIAMS – H109610 \n5 \n \nClaimant has failed to pursue her claim because  she has taken no further action \nin pursuit of it (including appearing at the July 14, 2023, hearing to argue against \nits  dismissal)  since  the  filing  of  her  Form  AR-C  on December  9,  2021.    Thus, \ndismissal  is  warranted  under  Rule  13.    Respondents  have  met  their  burden  of \nproof  in  this  matter.    Because  of  this  finding,  it  is  unnecessary  to  address  the \napplication 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).  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)).  Based on the foregoing, I find that the dismissal of this \nclaim should be and hereby is entered without prejudice.\n2\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 \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\nWILLIAMS – H109610 \n6 \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. H109610 CANDACE M. WILLIAMS, EMPLOYEE CLAIMANT PRYSMIAN GROUP, EMPLOYER RESPONDENT TRAVELERS INDEMN. CO., CARRIER RESPONDENT OPINION FILED JULY 18, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on July 14, 2023, in Jonesboro, Craighead ...","fetched_at":"2026-05-19T23:05:25.030Z","links":{"html":"/opinions/alj-H109610-2023-07-18","pdf":"https://labor.arkansas.gov/wp-content/uploads/Williams_Candace_H109610_20230718.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}