{"id":"alj-H200712-2023-03-31","awcc_number":"H200712","decision_date":"2023-03-31","opinion_type":"alj","claimant_name":"Jonathan Thielemier","employer_name":"Randolph County","title":"THIELEMIER VS. RANDOLPH COUNTY AWCC# H200712 MARCH 31, 2023","outcome":"dismissed","outcome_keywords":["dismissed:8"],"injury_keywords":["neck"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Thielemier_Jonathan_H200712_20230331.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Thielemier_Jonathan_H200712_20230331.pdf","text_length":6045,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H200712 \n \n \nJONATHAN THIELEMIER, EMPLOYEE CLAIMANT \n \nRANDOLPH COUNTY, \n Self-Insured Employer RESPONDENT \n \nAAC RISK MANAGEMENT SERVICES, \n Third Party Administrator RESPONDENT \n \n \nOPINION FILED MARCH 31, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch  on  March  24,  2023, in \nJonesboro, Craighead County, Arkansas \n \nClaimant represented himself, Pro Se. \n \nRespondent No. 1 is represented by Mr. Michael E. Ryburn, Attorney at Law, Little \nRock, Arkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.   No   testimony   was   taken.   The   evidentiary   record   consists   of \nRespondents Exhibit 1 and oral argument of the Respondents.  Without objection, \nthe Commission’s file on this claim has been incorporated herein by reference in \nits entirety. \n The  record  reflects  the  following  procedural  history:    The  Claimant  has \nalleged  he  has  sustained  multiple  injuries  when  he  fell  into  an  open  top  trailer \nduring the course and scope of his employment. Claimant specifically alleges that \nhe has sustained injuries to his face, eyes, wrists, arms, neck, spine, and multiple \nother  body  parts  from  a  specific  incident  on  January  10,  2022.  Respondents \naccepted the claim as compensable and have paid benefits. The Claimant filed a \n\nTHIELEMIER – H200712 \n \n2 \nForm AR-C with the Commission on March 2, 2022. Since then, the Claimant has \nnot requested a 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 \nof the claim within the limitation period specified in subsection (b) of \nthis section. \n \n\nTHIELEMIER – H200712 \n \n3 \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 \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n The  Arkansas  Court  of  Appeals  in Johnson  held  that  a  claim  could  be \ndismissed for lack of prosecution since there is no justiciable issue.  The authority \nfor doing so comes under Rule 13, which the Commission promulgated under Ark. \nCode  Ann.  §  11-9-205(a)(1)(A)  (Repl.  2012).    This  provision authorizes  it  “[t]o \nmake  such  rules  and  regulations  as  may  be  found  necessary[.]”  See Dura  Craft \nBoats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d 562 (1969); Johnson, supra.  \nContra  Dillard  v.  Benton  Cty.  Sheriff’s  Off.,  87  Ark.  App.  379,  192  S.W.3d  287 \n(2004)(“Rule  13  .  .  .  allows  a  dismissal  .  .  .  pursuant  to  Ark.  Code  Ann.  §  11-9-\n702(b)(4),  the  portion  of  the  statute  relating  to  additional  benefits”).    Certainly, \nsuch  a  claim  could  be  re-filed  if  a  justiciable  issue  arises,  provided  that  all  other \nprerequisites for a cognizable claim are met. \n At the hearing, The Claimant did not appear at the March 24, 2023, hearing \nafter  being  duly  served  by  U.S.  certified  mail,  return  receipt  request.  The  return \nreceipt   was   returned   to   the   Commission   with   Claimant’s   signature.   The \nRespondents’  Attorney  was  present  at  the  hearing.  Under Johnson,  supra,  this \n\nTHIELEMIER – H200712 \n \n4 \nclaim  should  thus  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 \nOpinion filed October 23, 1991)).  In light of this preference, this claim should be \ndismissed 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. H200712 JONATHAN THIELEMIER, EMPLOYEE CLAIMANT RANDOLPH COUNTY, Self-Insured Employer RESPONDENT AAC RISK MANAGEMENT SERVICES, Third Party Administrator RESPONDENT OPINION FILED MARCH 31, 2023 Hearing before Administrative Law Judge Steven Porch on March 24, ...","fetched_at":"2026-05-19T23:10:03.673Z","links":{"html":"/opinions/alj-H200712-2023-03-31","pdf":"https://labor.arkansas.gov/wp-content/uploads/Thielemier_Jonathan_H200712_20230331.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}