{"id":"alj-H203870-2024-03-18","awcc_number":"H203870","decision_date":"2024-03-18","opinion_type":"alj","claimant_name":"Randal Billingsley","employer_name":"Coralee’s Memphis-Style Chicken","title":"BILLINGSLEY VS. CORALEE’S MEMPHIS-STYLE CHICKEN AWCC# H203870 MARCH 18, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Billingsley_Randal_H203870_20240318.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Billingsley_Randal_H203870_20240318.pdf","text_length":8692,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H203870 \n \n \nRANDAL L. BILLINGSLEY, EMPLOYEE CLAIMANT \n \nCORALEE’S MEMPHIS-STYLE CHICKEN, \nEMPLOYER RESPONDENT \n \nSECURITY NATL. INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED MARCH 18, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on March 15, 2024, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not 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 the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on March 15,  2024, 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.   In \norder  to  address  adequately  this  matter  under  Ark.  Code  Ann. § 11-9-705(a)(1) \n(Repl. 2012)(Commission must “conduct the hearing . . . in a manner which best \nascertains the rights of the parties”), and without objection, I have into the record \nwhat   has   been   marked   as   Commission   Exhibit   1, forms,   pleadings,   and \ncorrespondence from the Commission’s file on the claim, consisting of 27 pages. \n \n\nBILLINGSLEY – H203870 \n \n2 \n \n The record reflects the following procedural history: \n On May 25, 2022, Claimant filed a Form AR-C, alleging that he injured his \nback on April 15, 2022, while unloading a truck at work. No request for a hearing \non the claim accompanied this filing.  However, on July 22, 2022, Claimant wrote \nthe  Committee  to  request a  hearing.    The  file  was  initially  assigned  to  the  Legal \nAdvisor  Division.    Claimant  expressed  a  willingness  to  mediate;  but  he  failed  to \nreturn  his  preliminary notice.    For  that  reason,  the  file  was assigned to  my  office \non  August  23,  2022.    Prehearing  questionnaires  were  issued  to  the  parties  on \nAugust   26,   2022.      While   in   this   instance   Claimant   promptly   returned   the \npreliminary notice, he failed to file a questionnaire response.  For that reason, on \nSeptember 22, 2022, my office returned his file to the Commission’s general files. \n On March 29, 2023, Respondents filed the instant Motion to Dismiss under \nAWCC R. 099.13.  The file was reassigned to me on March 30, 2023; and on April \n5,  2023,  I  wrote  Claimant,  requesting  that  he  respond  to  the  motion  within  20 \ndays.  He did so on April 18, 2023.  In this letter, received by my office on April 24, \n2023, and indicating that its origin was the Craighead County Jail, Claimant wrote:  \n“I Randal Billingsley with the AWCC # of H203870, object to the dismissal of my \ncase.  I plan on working on the case on my end very soon.  Thank you.”  Based \non this, I held the motion in abeyance and sent prehearing questionnaires to the \nparties  on  May  12,  2023.    Claimant  filed  a  timely  response  thereto  on  May  24, \n2023.    Respondents  followed  suit  on June  12,  2023,  representing  that  the  claim \n\nBILLINGSLEY – H203870 \n \n3 \n \nhad   been   controverted   in   its   entirety.    Informed   that   Claimant   was   still \nincarcerated  in  the  Craighead  County  Jail  and  would  be  there  until  October  5, \n2023,  making  it impractical  for  him  to  participate  in  a  prehearing  telephone \nconference  and  a  hearing,  I  informed  the  parties  on  June  22,  2023,  that  I  would \ncontinue  to  hold  the Motion  to  Dismiss in  abeyance  and  return  the  file  to  the \nCommission’s general files until November 2023. \n Respondents  renewed  their  motion  on  November  21,  2023,  emailing  my \noffice.    For  reasons  unknown,  this  did  not  result  in  the  file  getting  reassigned  to \nme  to  hear  the  motion.    In  the  meantime,  on  December  11,  2023,  Claimant \nnotified the Commission that his address had changed to 328 CR 390, Mountain \nHome, Arkansas 72635.  On January 10, 2024, Respondents again renewed their \nMotion to Dismiss.  In this instance, the Clerk of the Commission reassigned the \nfile  to  my  office  on  that  same  date.   My  office  wrote  Claimant  on  January  19, \n2024, requesting another response to the motion within 20 days.  The letter was \nsent  via  first-class  and  certified  mail  to  his  Mountain  Home  address.    Someone \nwith an illegible signature claimed the certified letter on February 1, 2024; and the \nfirst-class letter was not returned.  However, no response from him to the motion \nwas  forthcoming this  time.    On February  9,  2024,  a  hearing  on  the motion to \ndismiss was scheduled for March 15, 2024, at 1:00 p.m. at the Craighead County \nCourthouse in Jonesboro.   The  notice  was  sent  to  Claimant  via  first-class  and \n\nBILLINGSLEY – H203870 \n \n4 \n \ncertified  mail to  the  same  address as  before.   In  this  instance, both  items  were \nreturned to the Commission with the notation: \nRETURN TO SENDER \nNO MAIL RECEPTACLE \nUNABLE TO FORWARD \n \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled  on March \n15,  2024.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents \nappeared through counsel and argued for dismissal under AWCC R. 099.13. \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): \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;  this claim for  initial  benefits is \nhereby dismissed without prejudice under AWCC R. 099.13. \n \n\nBILLINGSLEY – H203870 \n \n5 \n \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). \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 the \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 his claim because he has taken no further action in \npursuit of it (including appearing at the March 15, 2024, hearing to argue against \nits dismissal) since the filing of his prehearing questionnaire response on May 24, \n2023.  Thus, the evidence preponderates that dismissal is warranted under Rule \n13. \n\nBILLINGSLEY – H203870 \n \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).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for additional benefits 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. H203870 RANDAL L. BILLINGSLEY, EMPLOYEE CLAIMANT CORALEE’S MEMPHIS-STYLE CHICKEN, EMPLOYER RESPONDENT SECURITY NATL. INS. CO., CARRIER RESPONDENT OPINION FILED MARCH 18, 2024 Hearing before Administrative Law Judge O. Milton Fine II on March 15, 2024, in Jone...","fetched_at":"2026-05-19T22:56:34.813Z","links":{"html":"/opinions/alj-H203870-2024-03-18","pdf":"https://labor.arkansas.gov/wp-content/uploads/Billingsley_Randal_H203870_20240318.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}