{"id":"alj-H203365-2023-06-08","awcc_number":"H203365","decision_date":"2023-06-08","opinion_type":"alj","claimant_name":"Shaniqua Briscoe","employer_name":"Employee Solutions, LLC","title":"BRISCOE VS. EMPLOYEE SOLUTIONS, LLC AWCC# H203365 JUNE 8, 2023","outcome":"dismissed","outcome_keywords":["dismissed:5"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//Briscoe_Shaniqua_H203365_20230608.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Briscoe_Shaniqua_H203365_20230608.pdf","text_length":8902,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H203365 \n \n \nSHANIQUA BRISCOE, EMPLOYEE CLAIMANT \n \nEMPLOYEE SOLUTIONS, LLC, \n EMPLOYER RESPONDENT \n \nZURICH AMERICAN INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JUNE 8, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on May 19, 2023, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Rick  Behring,  Jr.,  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  May  19,  2023,  in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nWithout  objection,  the  Commission’s  file  on  the  claim  has  been  incorporated \nherein  in  its  entirety  by  reference.    In  addition,  Respondents’  Exhibit  1, forms, \npleadings  and  correspondence  related  to  the  claim,  consisting  of  29 numbered \npages, was admitted into evidence. \n\nBRISCOE – H203365 \n2 \n \n The record reflects the following procedural history: \n The  First  Report  of  Injury  or  Illness  filed  on  May  4,  2033,  reflects  that \nClaimant  purportedly  injured  her  hands  at  work  on  December  7,  2021.    Per  the \nForm  AR-2  filed  on  May  5,  2022,  Respondents  controverted  the  claim  in  its \nentirety.  Claimant filed a Form AR-C on May 11, 2022.  Therein, she changed the \nalleged  date  of  injury  to  February  18,  2022,  and  asserted  that  on  that  date,  her \n“hand  got  infected  from  the  soap  at  the  work  site  .  .  .  .”  On  May  23,  2022, \nRespondents  wrote  the  Commission,  reiterating  that  they  had  denied  the  claim.  \nRespondents’  counsel  entered  an  appearance  on  August  23,  2022.  Claimant \nrequested a hearing on August 30, 2022.  Her letter to the Commission reads: \nI Shaniqua Briscoe \nWould like to appeal my worker comp denial. \n \n/s/ Shaniqua Briscoe \n \n#203365 \n \n The matter was assigned to the Legal Advisor Division on August 31, 2022.  \nBut  due  to  the  lack  of  success  in  setting  up  a  legal  advisor  conference  and/or  a \nmediation  conference,  the  file  was  assigned  to  me  on  October  14,  2022.  \nPrehearing  questionnaires  were  issued  to  the  parties  on  October  18,  2022.  \nRespondents’  counsel  notified  my  office  on  October  24,  2022,  that  both  sides \nwere  willing  to  mediate  the  matter.    For  that  reason,  the  file  was  returned  to  the \nClerk  of  the  Commission  for  reassignment  to  the  Legal  Advisor  Division  so  that \nthe mediation could be conducted.  The mediation conference was scheduled for \n\nBRISCOE – H203365 \n3 \n \nJanuary  12,  2023.    However,  at  the  appointed  date  and  time,  Claimant  failed  to \nappear.  The evidence also shows that she failed to respond to discovery that had \nbeen propounded to her. \n The  record  reflects  that  no  further  activity  occurred  on  the  claim  until \nFebruary  3,  2023,  when  Respondents  filed  the  instant  motion,  moving  for \ndismissal of it under AWCC R. 099.13 and Ark. Code Ann. § 11-9-702(a)(4) (Repl. \n2012).  On February 15, 2023, my office wrote Claimant, asking for a response to \nthe motion within 20 days.  The letter was sent by first-class and certified mail to \nthe address listed for her in the file and matching that on her Form AR-C.  It was \nalso  sent  to  an  email  address  that  Claimant  had  furnished  to  the  Commission.  \nThe United States Postal Service was unable to verify whether Claimant claimed \nthe  certified  letter;  but  the  first-class  letter  was  not  returned  to  the  Commission.  \nRegardless,  no  response  from  her  was  forthcoming.    On  March  24,  2023,  I \nscheduled a hearing on Respondents’ motion for May 19, 2023, at 10:30 a.m. at \nthe  Craighead  County  Courthouse  in  Jonesboro.    Notice  of  this  was  sent  to \nClaimant  (as  well  as  Respondents)  by  certified  and  first-class  mail  at  the  same \naddress  as  before.    In  this  instance,  the  certified  letter  was  returned  to  the \nCommission.    But  the  first-class  letter  to  her  was  never  returned.    Thus,  the \nevidence preponderates that she received the notice. \n The hearing on the Motion to Dismiss proceeded as scheduled on May 19, \n2023.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents \n\nBRISCOE – H203365 \n4 \n \nappeared  through  counsel  and  argued  for  dismissal  under  the  aforementioned \nauthorities. \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. Claimant has failed to prosecute her claim. \n4. Dismissal of this claim is thus warranted under AWCC R. 099.13. \n5. The  application  of  Ark.  Code  Ann.  §  11-9-702(a)(4)  (Repl.  2012)  is \nmoot and will not be addressed. \n6. The claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n Arkansas  Code  Annotated  §  11-9-702(a)(4)  (Repl.  2012)  provides  as \nfollows: \nIf within six (6) months after the filing of a claim for compensation no \nbona  fide  request  for  a  hearing  has  been  made  with  respect  to  the \nclaim,  the  claim  may,  upon  motion  and  after  hearing,  be  dismissed \nwithout  prejudice  to  the  refiling  of  the  claim within  limitation  periods \nspecified in subdivisions (a)(1)-(3) of this section. \n\nBRISCOE – H203365 \n5 \n \n \nIn turn, 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). \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 \nclaim–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 her claim because  she has taken no further action \nin pursuit of it (including appearing at the May 19, 2023, hearing to argue against \nits dismissal) since she made her hearing request on August 30, 2022.  Thus, the \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.    Because  of \nthis  finding,  the  application  of  Ark.  Code  Ann.  §  11-9-702(a)(4)  (Repl.  2012)  is \nmoot and will not be addressed. \n\nBRISCOE – H203365 \n6 \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)).  At  the  hearing,  Respondents  asked  for  a  dismissal \nwithout  prejudice.    Based  on  the  above  authorities,  I  agree  and  find  that the \ndismissal of this claim should be and hereby is entered without prejudice.\n1\n \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 \n \n \n1\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. H203365 SHANIQUA BRISCOE, EMPLOYEE CLAIMANT EMPLOYEE SOLUTIONS, LLC, EMPLOYER RESPONDENT ZURICH AMERICAN INS. CO., CARRIER RESPONDENT OPINION FILED JUNE 8, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on May 19, 2023, in Jonesboro, Cra...","fetched_at":"2026-05-19T23:06:08.913Z","links":{"html":"/opinions/alj-H203365-2023-06-08","pdf":"https://labor.arkansas.gov/wp-content/uploads//Briscoe_Shaniqua_H203365_20230608.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}