{"id":"alj-H203950-2023-06-23","awcc_number":"H203950","decision_date":"2023-06-23","opinion_type":"alj","claimant_name":"Danny Andrew","employer_name":"Tfc, Inc","title":"ANDREW VS. TFC, INC. AWCC# H203950 JUNE 23, 2023","outcome":"dismissed","outcome_keywords":["dismissed:6"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//Andrew_Danny_H203950_20230623.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Andrew_Danny_H203950_20230623.pdf","text_length":7834,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H203950 \n \n \nDANNY T. ANDREW, EMPLOYEE CLAIMANT \n \nTFC, INC., EMPLOYER RESPONDENT \n \nEMCASCO INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JUNE 23, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  June 22, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  David  C.  Jones,  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 June 22, 2023, in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro se,  failed  to  appear  at  the  hearing.    Without \nobjection,  the  Commission’s  file  on  the  claim  has been  incorporated  herein  in  its \nentirety  by  reference.    In  addition,  Respondents’  Exhibit  1, forms,  pleadings  and \ncorrespondence  related  to  the  claim,  consisting  of 22  numbered  pages,  was \nadmitted into evidence. \n\nANDREW – H203950 \n2 \n \n The record reflects the following procedural history: \n The  First  Report  of  Injury  or  Illness  filed  on  June  7,  2022,  reflects  that \nClaimant purportedly injured the middle and index fingers of his left hand at work \non March  22,  2022.    Per  the  Form  AR-2  that  was  also  filed  on  June  7,  2022, \nRespondents  accepted  the  claim  as  a  medical-only  one.  Claimant  filed  a  Form \nAR-C on May 25, 2022.  Therein, he asserted that on March 22, 2022, the tips of \nthe fingers referenced above were amputated by a brake press. \n Respondents   covered   the   treatment  that   Claimant   received.      It   was \nrecommended  that  he  undergo  surgical  treatment  of  his  fingers.    But  on  four \nseparate occasions, he failed to show up to undergo the procedure.\n1\n \n The record reflects that no further activity occurred on the claim until March \n1,  2023,  when  Respondents  filed  the  instant  motion,  asking  for  dismissal  of  it \nunder AWCC R. 099.13 and Ark. Code Ann. § 11-9-702 (Repl. 2012).  On March \n20, 2023, my office wrote Claimant, asking for a response to the motion within 20 \ndays.  The letter was sent by first-class and certified mail to the address listed for \nClaimant in the file and matching that on his Form AR-C.  The certified letter was \nreturned to the Commission, unclaimed, on June 1, 2023; but the first-class letter \nwas  not  returned  to  the  Commission.    Regardless,  no  response  from  him  was \nforthcoming.  On May 18, 2023, I scheduled a hearing on Respondents’ motion for \n \n \n1\nThe  Arkansas  Court  of  Appeals  has  held  that  if  a  claimant  abandons  his \ncourse  of  treatment,  his  healing  period  could  be  found  to  have  ended  with  that \nabandonment.  See, e.g., Breakfield v. In & Out, Inc., 79 Ark. App. 402, 88 S.W.3d \n861 (2002). \n\nANDREW – H203950 \n3 \n \nJune 22, 2023, at 10:00 a.m. at the Commission in Little Rock.  Notice of this was \nsent to Claimant by certified and first-class mail at the same address as before.  In \nthis  instance,  Claimant  signed  for  the  certified  letter  on  May  20,  2023;  and  the \nfirst-class  letter  to  him  was  never  returned.    Thus,  the  evidence  preponderates \nthat he received the Notice of Hearing. \n The hearing on the Motion to Dismiss proceeded as scheduled on June 22, \n2023.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents \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 his claim. \n4. Dismissal of this claim is thus warranted under AWCC R. 099.13. \n5. The  application  of  Ark.  Code  Ann.  §  11-9-702(d)  (Repl.  2012)  is \nmoot and will not be addressed. \n\nANDREW – H203950 \n4 \n \n6. The claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n Arkansas Code Annotated § 11-9-702(d) (Repl. 2012) provides as follows: \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 limitation period specified in subsection (b) of this \nsection. \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,  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 his claim because he has taken no further action in \n\nANDREW – H203950 \n5 \n \npursuit of it (including appearing at the June 22, 2023, hearing to argue against its \ndismissal) since the filing of the Form AR-C on May 25, 2022.  Thus, the evidence \npreponderates that dismissal is warranted under Rule 13.  Because of this finding, \nthe application of § 11-9-702(d) is moot and will not be addressed. \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.\n2\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 \n \n2\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). \n\nANDREW – H203950 \n6 \n \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. H203950 DANNY T. ANDREW, EMPLOYEE CLAIMANT TFC, INC., EMPLOYER RESPONDENT EMCASCO INS. CO., CARRIER RESPONDENT OPINION FILED JUNE 23, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on June 22, 2023, in Little Rock, Pulaski County, Arkans...","fetched_at":"2026-05-19T23:06:42.430Z","links":{"html":"/opinions/alj-H203950-2023-06-23","pdf":"https://labor.arkansas.gov/wp-content/uploads//Andrew_Danny_H203950_20230623.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}