{"id":"alj-H201714-2023-03-31","awcc_number":"H201714","decision_date":"2023-03-31","opinion_type":"alj","claimant_name":"Rebecca Brown","employer_name":"Nestle USA, Inc","title":"BROWN VS. NESTLE USA, INC. AWCC# H201714 MARCH 31, 2023","outcome":"dismissed","outcome_keywords":["dismissed:8"],"injury_keywords":["hip"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//Brown_Rebecca_H201714_20230331.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Brown_Rebecca_H201714_20230331.pdf","text_length":6895,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H201714 \n \n \nREBECCA BROWN, EMPLOYEE CLAIMANT \n \nNESTLE USA, INC., \n Employer RESPONDENT \n \nINDEMNITY INSURANCE COMPANY, \nOF NORTH AMERICA (PA), \n Insurance Carrier RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT \nSERVICES, INC., \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 herself, Pro Se. \n \nRespondent No. 1 is represented by Mr. Michael C. Stiles, 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  Respondent’s  oral  argument.  Without  objection,  the \nCommission’s  file  on  this  claim  has  been  incorporated  herein  by  reference  in  its \nentirety. \n The record reflects the following procedural history:  The Claimant alleges \nthat she has sustained a compensable injury to her hip and left leg resulting from \na specific incident on December 10, 2021. Claimant further alleges that her injury \n\nBROWN – H201714 \n \n2 \noccurred  during  the  course  and  scope  of  her  employment  with  Nestle  USA,  Inc. \nThe  Claimant  did  not  file  a  Form  AR-C  with  the  Commission  in  this  matter.  \nHowever,  Respondent  filed  a  Form AR-2  on  February  28,  2022,  controverting \nClaimant’s  entire  claim.    Claimant  requested  a  hearing  on  March  28,  2022. \nClaimant  next  filed  a  Preliminary  Notice  with  the  Commission  indicating  her \nwillingness  to mediate  this  claim on  May  3, 2022.The  Respondents  informed the \nClerk  of  the  Arkansas  Workers’  Compensation  Commission  they  were  willing  to \nmediate  this  claim,  and  the  claim  was  assigned  to  the  Commission’s  Legal \nAdvisor Division. \nThe  Claimant  expressed  in  early  June  2022  her  desire  to  retain  counsel \nbefore  the  mediation.  Since  then,  there  has  been  no  action  on  this  case  for \napproximately  nine  months.  There  has  not  been  an  entry  of  appearance of  an \nattorney on the  behalf  of  the  Claimant.  The Claimant has  not  reached  out  to  the \nLegal  Advisor  Division  to  request  a  mediation  date  or  the  Administrative  Law \nJudge for a new hearing date.  \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. \n\nBROWN – H201714 \n \n3 \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 \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 \n\nBROWN – H201714 \n \n4 \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 \nRespondent’s  Attorney  was  present  at  the  hearing.  Under Johnson,  supra,  this \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 \n\nBROWN – H201714 \n \n5 \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. H201714 REBECCA BROWN, EMPLOYEE CLAIMANT NESTLE USA, INC., Employer RESPONDENT INDEMNITY INSURANCE COMPANY, OF NORTH AMERICA (PA), Insurance Carrier RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., Third Party Administrator RESPONDENT OPINION FILED MARCH...","fetched_at":"2026-05-19T23:10:01.540Z","links":{"html":"/opinions/alj-H201714-2023-03-31","pdf":"https://labor.arkansas.gov/wp-content/uploads//Brown_Rebecca_H201714_20230331.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}