{"id":"alj-H203191-2023-04-11","awcc_number":"H203191","decision_date":"2023-04-11","opinion_type":"alj","claimant_name":"Brian Johns","employer_name":"Kroger Limited Partnership I","title":"JOHNS VS. KROGER LIMITED PARTNERSHIP I AWCC# H203191 APRIL 11, 2023","outcome":"dismissed","outcome_keywords":["dismissed:6","granted:1"],"injury_keywords":["back","fracture","ankle"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//Johns_Brian_H203191_20230411.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Johns_Brian_H203191_20230411.pdf","text_length":7780,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H203191 \n \n \nBRIAN S. JOHNS, EMPLOYEE CLAIMANT \n \nKROGER LIMITED PARTNERSHIP I, \n SELF-INSURED EMPLOYER RESPONDENT \n \nSEDGWICK CLAIMS MGMT. SVCS., \n THIRD PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED APRIL 11, 2023 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  April  7,  2023, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant,   represented  by  Mr.  Jim  R. Burton,  Attorney  at  Law,   Jonesboro, \nArkansas, not appearing. \n \nRespondents  represented  by  Ms.  Karen  H.  McKinney,  Attorney  at  Law,  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  April  7,  2023,  in \nJonesboro, Arkansas.  Neither Claimant nor his counsel appeared at the hearing.  \nWithout objection, the Commission file on this claim has been incorporated herein \nin  its  entirety  by  reference.  Admitted  into  evidence  was  Respondents’  Exhibit  1, \nforms,  pleadings,  and  correspondence related  to  the  claim,  consisting  of 15 \npages. \n\nJOHNS – H203191 \n2 \n \n The record reflects the following procedural history: \n On  April  27, 2022,  a  Form  AR-1  was  filed  in  this  case,  reflecting  that \nClaimant purportedly suffered a fractured foot while operating a pallet jack at work \non June  22,  2021.    Per  the  Form  AR-2  that  was  filed on May  10,  2022, \nRespondents first denied, but later accepted, the claim as a medical-only one.  On \nMay  9,  2022,  Claimant—through  counsel—filed  a  Form  AR-C,  requesting  a  full \nrange of initial benefits in connection with the alleged June 22, 2021, incident.  No \nhearing request accompanied this filing.  Respondents’ counsel made her entry of \nappearance on May 13, 2022. \n Claimant’s counsel on May 17, 2022, wrote the Commission: \nThis  is  to  advise  you  I  have  been  in  contact  with  the  respondents’ \nattorney;  it appears  that  the  issues  raised  in  the  above ARC  filing, \nWCC No. H203191, are already encompassed in and relate back to \nan  earlier  filing  by  the  claimant,  specifically  a  crush/fracture  injury, \nleft   foot/ankle   dated   June   30,   2021,   in   WCC   No.   H105672.  \nRespondents  have  accepted  this  claim  as  compensable  and  have \npaid  temporary  total  disability  and  medical  expenses  up  to  the \npresent. \n \nAs  such,  this  is  to  request  that  our  AR-C  filing  in  WCC  No. \nH203191  be  withdrawn,  and  that  the  file  reflect  us  as  attorney  of \nrecord for the claimant in all future proceedings regarding WCC No. \nH105672. \n \nRespondents’   counsel   by   letter   on   May   17,   2022,   echoed   the   above \ncorrespondence,  representing  that  they  had  no  objection  to  Claimant  being \nallowed to withdraw his Form AR-C in the instant claim. \n But  the  Commission  has  not  found  that  claims  are  subject  to  non-suit—\nwhich a withdrawal of the Form AR-C would essentially constitute—under Ark. R. \n\nJOHNS – H203191 \n3 \n \nCiv.  P.  41.   See  Hooker  v.  E.C.  Rowlett  Const.  Co. et  al.,  2005  AR  Wrk.  Comp. \nLEXIS 38, AWCC No. F012906 (Full Commission Opinion filed February 8, 2005).  \nRegardless, no withdrawal of the claim form ever took place. \n On   November  29,   2022,   Respondents   filed  their   Motion   to  Dismiss.  \nTherein, they alleged  that dismissal of  the  claim  was  warranted  under  AWCC  R. \n099.13 and Ark. Code Ann. § 11-9-702(a)(4) & (d) (Repl. 2012) because Claimant \nhas  not  requested  a  hearing  on  this  claim  (which,  of  course,  stands  to  reason \nsince the injury alleged herein is the subject of a  separate claim).  On December \n8, 2022, my office wrote Claimant’s counsel, asking for a response to the motion \nwithin 20 days.  No response thereto was forthcoming, however. \n On  February  3,  2023  ,  a  hearing  was  scheduled  on  the  Motion  to  Dismiss \nfor April 7, 2023, at 10:30 a.m. at the Craighead County Courthouse in Jonesboro.  \nThe  hearing  notice  was  sent  to  Claimant  by  certified  and  first-class  mail  to the \naddress listed for him in his Form AR-C and in the Commission’s file.  His counsel \nwas  notified  by  first-class  mail  as  well.    The  certified  letter  was  returned  to  the \nCommission, unclaimed, on March 21, 2023, while the first-class letter to Claimant \nwas  never  returned.    The letter  to  his  attorney  was  not  returned,  either.    The \nevidence thus preponderates that Claimant received notice of the hearing. \n The  hearing  proceeded  as  scheduled  on  April  7,  2023.    Again,  Claimant \nand  his  counsel  failed  to  appear  at  the  hearing.    But  Respondents  appeared \nthrough their attorney and argued for dismissal under the foregoing authorities. \n\nJOHNS – H203191 \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;  the  claim is  hereby  dismissed \nwithout prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \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) \n\nJOHNS – H203191 \n5 \n \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the April 7, 2023, hearing to argue against its \ndismissal)  since  the  May  9,  2022,  filing  of  the  Form  AR-C.    Thus,  the  evidence \npreponderates 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 \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 with \nprejudice.    But  based  on  the  above  authorities, I  find  that  the  dismissal  of  this \nclaim 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. H203191 BRIAN S. JOHNS, EMPLOYEE CLAIMANT KROGER LIMITED PARTNERSHIP I, SELF-INSURED EMPLOYER RESPONDENT SEDGWICK CLAIMS MGMT. SVCS., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED APRIL 11, 2023 Hearing before Administrative Law Judge O. Milton Fine II o...","fetched_at":"2026-05-19T23:08:22.718Z","links":{"html":"/opinions/alj-H203191-2023-04-11","pdf":"https://labor.arkansas.gov/wp-content/uploads//Johns_Brian_H203191_20230411.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}