{"id":"alj-H109960-2023-04-04","awcc_number":"H109960","decision_date":"2023-04-04","opinion_type":"alj","claimant_name":"Susan House","employer_name":"Ar. Heart Hospital, LLC","title":"HOUSE VS. AR. HEART HOSPITAL, LLC AWCC# H109960 APRIL 4, 2023","outcome":"dismissed","outcome_keywords":["dismissed:12"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/HOUSE_SUSAN_H109960_20230404.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOUSE_SUSAN_H109960_20230404.pdf","text_length":5124,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H109960 \n \n \nSUSAN D. HOUSE, EMPLOYEE CLAIMANT \n \nAR. HEART HOSPITAL, LLC, \n Employer RESPONDENT \n \nBRIDGEFIELD EMPLOYERS INS. CO., \n Insurance Carrier RESPONDENT \n \nSUMMIT CONSULTING, LLC, \n Third Party Administrator RESPONDENT \n \nOPINION FILED APRIL 4, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch  on  March  22,  2023, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant  is  represented  by  Ms.  Laura  Beth  York,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nRespondent is represented by Mr. Guy Alton Wade, Attorney at Law, Little Rock, \nArkansas. \n \nI.  BACKGROUND \n This matter comes before the Commission on a  Motion to Dismiss filed by \nRespondent  on  January  20,  2023.  No  testimony  was  taken.  The  evidentiary \nrecord consists of  Respondent’s Exhibit 1 and oral argument of the Respondent. \nClaimant’s  attorney  waived  her  appearance  for  the  March  22,  2023,  hearing. \nWithout  objection,  the  Commission’s  file  on  this  claim  has  been  incorporated \nherein by reference in its entirety. \n The  record  reflects  the  following  procedural  history:    The  Claimant  has \nalleged she has sustained injuries to her back and whole body on November 11, \n2021,  during  the  course  and  scope  of  her  employment.  Respondent  denied  this \n\nHOUSE – H109960 \n \n2 \nclaim  in  its  entirety.  Claimant  filed  an  AR-C  with  the  Commission,  through \ncounsel, on July 1, 2022, for benefits. Since then, the Claimant has not requested \na hearing and no efforts have been made to prosecute this claim.  \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 claim. \n2. The  parties  were  provided  reasonable  notice  of  the  motion  to \ndismiss and of the hearing thereon under AWCC R. 099.13. \n3. The   Commission   is   authorized   to   dismiss   claims   for   want   of \nprosecution pursuant to AWCC R. 099.13. \n4. This  claim  should  be,  and  hereby  is,  dismissed without  prejudice \npursuant to AWCC R. 099.13 due to want of prosecution. \n5. Because of  the above  finding,  Ark.  Code  Ann. § 11-9-702(d)  (Repl. \n2012) will not be addressed. \nIII.  DISCUSSION \n Arkansas Code Annotated § 11-9-702(d) (Repl. 2012) provides as follows: \n \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation,  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim  may,  upon  motion  and  after \nhearing,  if  necessary,  be  dismissed  without  prejudice  to  the  refiling \n\nHOUSE – H109960 \n \n3 \nof the claim within the limitation period specified in subsection (b) of \nthis section. \n \nIn addition, AWCC R. 099.13 provides in relevant part: \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 \n At  the  hearing,  Respondent’s  counsel  was  present.  Claimant’s  attorney \nwaived her appearance  after  being  duly  served  with notice.  However,  Claimant’s \nattorney  did  respond  to  the  Motion  to  Dismiss  with  an  email  dated  February  10, \n2023,  where  she  wrote, “I  do  not  object  to  the  respondents  Motion  to  Dismiss \nWithout Prejudice.” Based on this response and the lack of prosecution, I find this \nclaim   should   be   dismissed   under   Rule   13.   Because   of   this   finding,   it   is \nunnecessary to address the application of § 11-9-702(d). \n That, however, leaves the question of whether the dismissal should be with \nor  without  prejudice.  The  Commission  possesses  the  authority  to  dismiss  claims \nwith  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co.,  23  Ark. App.  137,  744 \nS.W.2d  402  (1988).    This  includes  claims  dismissed  under  Rule  13.   Johnson, \nsupra.  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS 5 10, the Commission \nwrote:    “In  numerous  past  decisions,  this  Commission  and  the  Appellate  Courts \nhave    expressed    a    preference    for    dismissals    without    prejudice.”    (citing \nProfessional  Adjustment  Bureau  v.  Strong,  75  Ark.  249, 629  S.W.2d  284  (1982); \nHutchinson  v.  North  Arkansas  Foundry,  Claim  No.  D902143  (Full  Commission \n\nHOUSE – H109960 \n \n4 \nOpinion  filed  October  23,  1991).  Considering  this  preference,  I  find  this  claim \nshould be dismissed without 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 IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H109960 SUSAN D. HOUSE, EMPLOYEE CLAIMANT AR. HEART HOSPITAL, LLC, Employer RESPONDENT BRIDGEFIELD EMPLOYERS INS. CO., Insurance Carrier RESPONDENT SUMMIT CONSULTING, LLC, Third Party Administrator RESPONDENT OPINION FILED APRIL 4, 2023 Hearing before Adminis...","fetched_at":"2026-05-19T23:08:12.202Z","links":{"html":"/opinions/alj-H109960-2023-04-04","pdf":"https://labor.arkansas.gov/wp-content/uploads/HOUSE_SUSAN_H109960_20230404.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}