{"id":"alj-H201641-2023-10-10","awcc_number":"H201641","decision_date":"2023-10-10","opinion_type":"alj","claimant_name":"Charles Jackson","employer_name":"Friedman Indus., Inc","title":"JACKSON VS. FRIEDMAN INDUS., INC. AWCC# H201641 OCTOBER 10, 2023","outcome":"dismissed","outcome_keywords":["dismissed:9","granted:1"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Jackson_Charles_H201641_20231010.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Jackson_Charles_H201641_20231010.pdf","text_length":8534,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H201641 \n \n \nCHARLES W. JACKSON, EMPLOYEE CLAIMANT \n \nFRIEDMAN INDUS., INC., \nEMPLOYER RESPONDENT \n \nARGONAUT MIDWEST INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED OCTOBER 10, 2023 \n \nHearing before Administrative Law Judge O. Milton Fine II on October 6, 2023, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant  represented  by  Mr.  Bill  E.  Bracey,  Jr.,  Attorney  at  Law,  Blytheville, \nArkansas (neither appearing). \n \nRespondents  represented  by  Mr.  William  C.  Frye,  Attorney  at  Law,  North  Little \nRock, Arkansas. \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  October  6,  2023,  in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant  and  his \ncounsel   waived   their   appearance   at   the   hearing.  Without   objection,   the \nCommission’s  file  on  the  claim has  been  incorporated  herein  in  its entirety  by \nreference. \n The record reflects the following procedural history: \n Per the First Report of Injury or Illness filed on February 23, 2022, Claimant \npurportedly suffered a contusion to his head when he was struck by a steel coil at \nwork.    According  to  the  Form AR-2  that  was  filed  on  February  28,  2022, \n\nJACKSON – H201641 \n \n2 \n \n \nRespondents  accepted   the   claim   and   paid  medical   and   indemnity   benefits \npursuant thereto. \n On August 10, 2022, Claimant filed a Form AR-C, requesting certain initial \nbenefits  in  connection  with  his  alleged  injury.    Therein,  he  claimed  that  being \nstruck  by  the  coil  resulted  in  his  suffering  from  headaches,  vertigo,  and  loss  of \nsense  of  smell.    Respondents’  counsel  made  his  entry of  appearance on  August \n17, 2022; and on August 26, 2022, he notified the Commission that his clients had \npaid  all  appropriate  benefits  in  connection  with  the  claim,  including  permanent \npartial  disability  benefits  in  accordance  with  a  three  percent  (3%)  impairment \nrating to the body as a whole that Claimant had been assigned. \n Claimant requested a hearing.  The file was assigned to me on August 31, \n2022;  and  on  September  2,  2022,  my  office  issued  prehearing  questionnaires  to \nthe  parties.    However,  on  September  22,  2022,  Claimant’s  counsel  withdrew  the \nhearing  request  because  he  was  being  scheduled  for  emergency  back  surgery.  \nFor that reason, that file was returned to the Commission’s general files. \n On  November  14,  2022,  he  made  another  hearing  request.    The  file  was \nre-assigned  to  me  on  November  16,  2022;  and  my  office  issued prehearing \nquestionnaires  on  November  17, 2022.    Claimant  filed  a timely  response  thereto \non December 13, 2022; and Respondents followed suit on December 27, 2022. A \nprehearing  telephone  conference  was  scheduled  for  February  13,  2023.    During \nthat  conference,  Claimant’s  counsel  stated that  his  client  was going  to  request  a \n\nJACKSON – H201641 \n \n3 \n \n \none-time  change  of  physician  from  the  Commission.    For  that  reason,  by \nagreement  of  the  parties,  the  file  was  returned to  the  Commission’s  general  files \non  that  day.  However,  review  of  the  file  reflects  that  Claimant  did  not  follow \nthrough by making a change-of-physician request. \n The  record  reflects  that  no  further  activity  occurred  until  August  10,  2023, \nwhen Respondents filed the instant motion.  Therein, they requested dismissal of \nthe  claim  under  AWCC  R.  099.13 “[b]ased  on  the  fact  that  no  action  has  been \ntaken in this matter since the Claimant filed the AR-C . . . .”  On August 10, 2023, \nmy  office  wrote  Claimant  and  his  attorney,  requesting  a  response  to  the  motion \nwithin 20 days.  However, no response to the Motion to Dismiss was forthcoming. \n On September 5, 2023, I scheduled a hearing on the motion for October 6, \n2023,  at  11:00  a.m.  at  the  Craighead  County  Courthouse  in  Jonesboro.  The \nNotice  of  Hearing  was  sent  to  the  parties  by  certified  and  first-class  mail.    The \nUnited  States  Postal  Service  cannot  confirm  whether  Claimant  claimed  the \ncertified  letter;  but  the  first-class  mail  was  not  returned.    Moreover,  his  attorney \nreceived it, writing me on September 28, 2023: \nDear Judge: \n \nAs per our recent conversation, Mr. Jackson has received payment \nfor  his  rating,  is  employed  at  a  higher  wage  and  does  not  wish  to \ncontinue to pursue this claim, so that it may be dismissed. \n \nThe evidence thus preponderates that Claimant received notice of the hearing. \n\nJACKSON – H201641 \n \n4 \n \n \n The hearing on the Motion to Dismiss proceeded as scheduled on October \n6,  2023.  Both  Claimant  and  his  counsel  waived  their  appearance.    But,  again, \ncounsel  has  indicated  no  objection  to  a  dismissal  of  this  claim.    Respondents \nappeared  through  counsel  and  argued  for  dismissal  under  the  aforementioned \nauthority. \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 \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the  Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby \ndismissed 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 \n\nJACKSON – H201641 \n \n5 \n \n \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 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 this \nmatter–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 this claim because he has taken no further action in \npursuit of it—including appearing at the October 6, 2023, hearing on the Motion to \nDismiss—since  the  prehearing  telephone  conference  on  February  13,  2023.  \nThus, the evidence preponderates that dismissal is warranted under Rule 13. \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 \n\nJACKSON – H201641 \n \n6 \n \n \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(Emphasis  added)(citing Professional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629  S.W.2d  284  (1982)).    Respondents  at  the  hearing  asked  for a  dismissal \nwithout  prejudice.    Based  on  the  above  authorities, I  agree  and  find  that  the \ndismissal of the claim should be and hereby is entered 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      O. MILTON FINE II \n      Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H201641 CHARLES W. JACKSON, EMPLOYEE CLAIMANT FRIEDMAN INDUS., INC., EMPLOYER RESPONDENT ARGONAUT MIDWEST INS. CO., CARRIER RESPONDENT OPINION FILED OCTOBER 10, 2023 Hearing before Administrative Law Judge O. Milton Fine II on October 6, 2023, in Jonesboro, C...","fetched_at":"2026-05-19T23:01:22.091Z","links":{"html":"/opinions/alj-H201641-2023-10-10","pdf":"https://labor.arkansas.gov/wp-content/uploads/Jackson_Charles_H201641_20231010.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}