{"id":"alj-H201453-2023-12-15","awcc_number":"H201453","decision_date":"2023-12-15","opinion_type":"alj","claimant_name":"Eric Settles","employer_name":"Performance Food Group, Inc","title":"SETTLES VS. PERFORMANCE FOOD GROUP, INC. AWCC# H201453 DECEMBER 15, 2023","outcome":"dismissed","outcome_keywords":["dismissed:7"],"injury_keywords":["shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Settles_Eric_H201453_20231215.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Settles_Eric_H201453_20231215.pdf","text_length":7417,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H201453 \n \n \nERIC SETTLES, EMPLOYEE CLAIMANT \n \nPERFORMANCE FOOD GROUP, INC., \n EMPLOYER RESPONDENT \n \nINDEMN. INS. CO. OF NO. AMER., \n CARRIER RESPONDENT \n \n \nOPINION FILED DECEMBER 15, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on December 14, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  David  C.  Jones,  Attorney  at  Law,  Little  Rock, \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 December 14, 2023, in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted   into   evidence   without   objection   were   Commission   Exhibit   1 and \nRespondents’  Exhibit  1,  forms,  pleadings,  and  correspondence  related  to  this \nclaim, consisting of 6 and 42 numbered pages, respectively. \n\nSETTLES – H201453 \n2 \n \n The record reveals the following procedural history: \n The First Report of Injury or Illness, filed on February 16, 2022, reflects that \nClaimant  purportedly  suffered  an  injury  to  his  left  shoulder  on  October 21,  2021, \nwhen he tripped and fell at work.  Per the Form AR-2 filed on February 23, 2022, \nRespondents  accepted  the  claim  as  a  medical-only  one.  Respondents’  counsel \nentered his appearance on February 17, 2022. \n Through  then-counsel  Laura  Beth  York,  Claimant  filed  a  Form  AR-C  on \nMarch  28,  2022.    Therein, he requested  the  full  range  of  initial  and  additional \nbenefits  in  connection  with  his  alleged  left  shoulder  injury.    No  hearing  request \naccompanied  this  filing.    In  an  amended  Form  AR-2  filed  on  May  11,  2022, \nRespondents  informed  the  Commission  that  they  were  now  paying  indemnity \nbenefits as  well as medical  benefits  in  connection  with  the  claim.    On  November \n16,  2022,  York  moved  to  withdraw  from  her  representation  of  Claimant.    In  an \norder  entered  on  November  29,  2022,  the  Full  Commission  granted  the  motion \nunder AWCC Advisory 2003-2. \n The  record  reflects  that  no  further  action  was  taken  on  the  case  until \nOctober 5, 2023, when Respondents filed the instant Motion to Dismiss under Ark. \nCode  Ann.  §  11-9-702  (Repl.  2012)  and  AWCC  R.  099.13,  along  with  a  brief  in \nsupport  thereof.    Therein,  they  alleged  that  Claimant  had  failed  to  prosecute  his \nclaim,  and  more  particularly,  that  he  had  failed  to  make  a  bona  fide  hearing \nrequest for additional benefits within six months of the filing of the Form AR-C, per \n§  11-9-702(d).    On  October 10,  2023,  my  office  wrote  Claimant,  requesting  a \n\nSETTLES – H201453 \n3 \n \nresponse  to  the  motion  within 20  days.    This  correspondence  was  sent  by  both \ncertified and first-class mail to the address for Claimant listed in the file and on his \nForm AR-C.  While the certified letter was returned to the Commission, unclaimed, \nthe first-class mailing was not returned.  Regardless,  no response  from Claimant \nto the motion was forthcoming. \n On November 14, 2023, a hearing on Respondents’ motion was scheduled \nfor December 14, 2023, at 12:00 p.m. at the Commission.  The Notice of Hearing \nwas  sent  to  Claimant  by  certified  and  first-class  mail  to  the  same  address  as \nbefore.  In this instance, both items were returned\n1\n to the Commission.  On each, \nthe  United  States  Postal  Service  wrote  that  Claimant  had  moved  from  that \naddress without having in place a forwarding order. \n The  hearing  proceeded  as  scheduled  on  December  14,  2023.    Claimant \nfailed to appear at the hearing.  But Respondents appeared through counsel and \nargued for dismissal under, inter alia, Rule 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): \n \n \n1\nAlthough  page  six  of  Commission  Exhibit  1  contains a  photocopy  of  a \nsigned  certified  mail  receipt,  it  is  apparent  that  the  slip  (bearing  the  signature  of \n“Matthew Taylor” and not Claimant) pertains to an unrelated case. \n\nSETTLES – H201453 \n4 \n \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. \n3. Claimant has failed to prosecute his claim. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n5. The 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 The  evidence  adduced  at  the  hearing  shows  that  Claimant  has  taken  no \naction in pursuit of his claim since the filing of his Form AR-C on March 28, 2022.  \nMoreover,  he  failed  to  appear  on  the  hearing  to  argue  against  dismissal  of  the \nclaim, despite being given  reasonable notice of the  Motion to  Dismiss and of the \nhearing  thereon.    Thus,  the  evidence  preponderates  that  dismissal  is  warranted \nunder  Rule  13.  Because  of  this  finding,  it  is  unnecessary  to  address  the \napplicability of Ark. Code Ann. § 11-9-702(d) (Repl. 2012). \n\nSETTLES – H201453 \n5 \n \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 with \nprejudice.    But  based  on  the  above  authorities, I  find  that  the  dismissal  of  this \nclaim should be and hereby is entered without prejudice.\n2\n \nCONCLUSION \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 \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).","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H201453 ERIC SETTLES, EMPLOYEE CLAIMANT PERFORMANCE FOOD GROUP, INC., EMPLOYER RESPONDENT INDEMN. INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED DECEMBER 15, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on December 14, 2023, i...","fetched_at":"2026-05-19T22:59:38.738Z","links":{"html":"/opinions/alj-H201453-2023-12-15","pdf":"https://labor.arkansas.gov/wp-content/uploads/Settles_Eric_H201453_20231215.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}