{"id":"alj-H200603-2024-03-01","awcc_number":"H200603","decision_date":"2024-03-01","opinion_type":"alj","claimant_name":"Brian Bozza","employer_name":"Home Depot USA, Inc","title":"BOZZA VS. HOME DEPOT USA, INC. AWCC# H200603 MARCH 1, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":["shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Bozza_Brian_H200603_20240301.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Bozza_Brian_H200603_20240301.pdf","text_length":8109,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H200603 \n \n \nBRIAN BOZZA, EMPLOYEE CLAIMANT \n \nHOME DEPOT USA, INC., \nEMPLOYER RESPONDENT \n \nINDEMNITY INS. CO. OF NO. AMER., \nCARRIER RESPONDENT \n \n \nOPINION FILED MARCH 1, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  March  1,  2024,  in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Zachary F. Ryburn, 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 March 1, 2024, in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.    Admitted  into \nevidence  was  Respondents’  Exhibit  1,  pleadings,  correspondence,  reports,  and \nforms  related  to  this  claim,  consisting  of 11  pages.  Also,  in  order  to  address \nadequately   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  forms,  pleadings,  and  correspondence from  the  Commission’s  file  on \n\nBOZZA – H200603 \n \n2 \n \nthe claim, consisting of 19 pages.  In accordance with Sapp v. Tyson Foods, Inc., \n2010 Ark. App. 517, ___ S.W.3d ___, these documents have been served on the \nparties in conjunction with this opinion. \n The record reflects the following procedural history: \n On  January  20,  2022,  through  then-counsel  Laura  Beth  York,  Claimant \nfiled  a  Form  AR-C,  alleging  that he injured his  left  shoulder  on August  19,  2021, \nwhile  lifting  a  box  at  work.    The  full  range  of  initial  and  additional  benefits  was \nrequested.  Accompanying  this  filing  was a  request  for  a  hearing  on  the  claim.  \nRespondents’ counsel entered an appearance on January 24, 2022.   Following a \nMarch 21, 2022, prehearing telephone conference, where the parties agreed that \nall   outstanding   issues   had   been   resolved,   the   file   was   returned   to   the \nCommission’s general files. \n Later,   another   hearing   request   was   made.      The   parties   filed   timely \nprehearing  questionnaire  responses.    On  September  19,  2022,  following  the \nconference, I issued a prehearing order that scheduled a full hearing for October \n27,  2022,  on  the  issue  of  whether  Claimant  is  entitled  to  additional  medical \ntreatment  of  his  stipulated  compensable  left  shoulder  injury.  The parties  notified \nme  on  October  18,  2022,  that  all  outstanding  issues  had  once  again  been \nresolved.    For  that  reason,  the  hearing  was  cancelled  that  day,  and  the file  was \nonce more returned to the Commission’s general files. \n \n\nBOZZA – H200603 \n \n3 \n \n On February 14, 2023, York moved to withdraw from her representation of \nClaimant.    In  an  Order  entered  on  February  24,  2023,  the  Full  Commission \ngranted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nJanuary  2,  2024.   On  that  date,  Respondents  filed  the  instant  motion,  asking  for \ndismissal of the claim because “[t]he claimant has failed to prosecute his claim for \nworkers’  compensation  benefits.”  My  office  wrote  Claimant on January  2,  2024, \nasking  for  a  response  to  the  motion  within  20  days.    The  letter  was  sent  by first \nclass and certified mail to the Hensley, Arkansas address of Claimant listed in the \nfile  and  on  the  Form  AR-C.  Claimant  claimed  the  certified  letter  on  January  6, \n2024, and the first-class letter was not returned.  However, no response from him \nto the motion was forthcoming.  On January 24, 2024, a hearing on the Motion to \nDismiss was scheduled fo r February 29, 2024, at 11:30 a.m. at the Commission in \nLittle  Rock.  The  notice  was  sent  to  Claimant  via  first-class  and  certified  mail  to \nthe  same  address  as  before.  In  this  instance,  the  United  States  Postal  Service \nwas  unable  to  verify  whether  Claimant  received  the  certified  letter.    But  the  first-\nclass letter was not returned to the Commission. \n The   hearing   on   the   Motion   to   Dismiss   proceeded   as   scheduled   on \nFebruary  29,  2024.  Again,  Claimant  failed  to  appear  at  the  hearing.    But \nRespondents  appeared  through  counsel  and  argued  for  dismissal  under  AWCC \nR. 099.13. \n\nBOZZA – H200603 \n \n4 \n \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 matter. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  his \nclaim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  for  initial  benefits is \nhereby dismissed 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\nBOZZA – H200603 \n \n5 \n \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 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  29,  2024,  hearing  to  argue \nagainst  its  dismissal)  since  the  cancellation  of  the  full  hearing  on  October  18, \n2022.  Thus, the evidence preponderates that dismissal is warranted under Rule \n13. \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 \n\nBOZZA – H200603 \n \n6 \n \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \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. H200603 BRIAN BOZZA, EMPLOYEE CLAIMANT HOME DEPOT USA, INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED MARCH 1, 2024 Hearing before Administrative Law Judge O. Milton Fine II on March 1, 2024, in Little Rock, Pulask...","fetched_at":"2026-05-19T22:55:52.936Z","links":{"html":"/opinions/alj-H200603-2024-03-01","pdf":"https://labor.arkansas.gov/wp-content/uploads/Bozza_Brian_H200603_20240301.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}