{"id":"alj-H204222-2024-07-12","awcc_number":"H204222","decision_date":"2024-07-12","opinion_type":"alj","claimant_name":"Maria Lopez","employer_name":null,"title":"LOPEZ VS. CHENAL PKWY. SHELL, INC.AWCC# H204222July 12, 2024","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:1"],"injury_keywords":["wrist"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Lopez_Maria_H204222_20240712.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Lopez_Maria_H204222_20240712.pdf","text_length":8329,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H204222 \n \n \nMARIA G. LOPEZ, EMPLOYEE CLAIMANT \n \nCHENAL PKWY. SHELL, INC., \n EMPLOYER RESPONDENT \n \nFIRSTCOMP INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JULY 12, 2024 \n \nHearing  before Chief Administrative  Law  Judge  O.  Milton  Fine  II  on July  11, \n2024, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Randy P. Murphy, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on the Motion to Dismiss filed \nby  Respondents.    A  hearing  on  the  motion  was  conducted  on July  11,  2024, in \nLittle  Rock,  Arkansas.   Claimant,  who  is pro se,  failed to  appear.   Respondents \nwere  represented  at  the  hearing  by Mr.  Randy  P.  Murphy,  Attorney  at  Law,  of \nLittle  Rock,  Arkansas.   In  order  to  address  adequately  this  matter  under  Ark. \nCode Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must “conduct the hearing  \n.  .  .  in  a  manner  which  best  ascertains  the rights of the parties”), and without \nobjection,  I  have  blue-backed to the record documents from the Commission’s \nfile  on  the  claim,  consisting  of 29 pages.    In  accordance  with Sapp  v.  Tyson \nFoods, Inc.,  2010 Ark.  App.  517,  ___ S.W.3d  ___,  these  documents  have  been \n\nLOPEZ – H204222 \n \n2 \nserved on the parties in conjunction with this opinion.  Also, the transcript of the \nFebruary 22, 2024, hearing in this matter, consisting of 16 numbered pages plus \nthree pages of exhibits, has been incorporated herein by reference. \n The evidence reflects that per the First Report of Injury or Illness filed on \nAugust  2, 2022, Claimant  purportedly suffered  an  injury to  her  left  wrist at  work \non April 15, 2022, when a customer closed a door on her hand.  According to the \nForm AR-2 that was filed on August 2, 2022, Respondents accepted the claim as \na medical-only one. \n On June 9, 2022, Claimant filed a Form AR-C, requesting the full range of \nadditional  benefits,  and  stated  that her  left  wrist  was  broken  as  a  result  of  an \nassault by a customer.  Respondents’ counsel made his entry of appearance on \nJune 17, 2022. \n On January 26, 2023, Mark Alan Peoples entered his appearance before \nthe Commission on Claimant’s behalf, and requested that she be granted her \none-time  change  of  physician.    In  an  order  entered  by Interim Medical  Cost \nContainment Division Administrator Mark McGuire on March 2, 2023, Claimant’s \nauthorized  treating  physician  was  changed  from  Brian  Norton,  M.D.,  to  Barry \nBaskin,  M.D.;  and  she  was  scheduled  for  a  visit  with  the  latter  for  March  14, \n2023. \n On July 18, 2023, Peoples moved to withdraw from the case.  In an order \nentered  on  July  28,  2023,  the  Full  Commission  granted  the  motion  pursuant  to \nAWCC Advisory 2003-2. \n\nLOPEZ – H204222 \n \n3 \n No further action on the claim took place until November 6, 2023.  On that \ndate, Respondents filed the instant Motion to Dismiss.  Therein, they argued that \ndismissal  was  warranted  under Ark.  Code  Ann. § 11-9-702 (Repl.  2012)  and \nAWCC R. 099.13 because Claimant had not sought a hearing on her claim.  On \nFebruary  22,  2024, the  hearing  on  the  motion  took  place.   Claimant appeared, \nobjected  to  dismissal, and  requested a  hearing  on  her  claim.  Based  on  this, \nRespondents asked that their motion be held in abeyance.  This was granted.  I \ninformed them that I would hold the file in my office for 30 days to allow them to \npursue an amicable resolution of the matter. \n However,  because  no  joint  petition  was  filed  during  that  timeframe,  my \noffice   issued   prehearing   questionnaires   to   the   parties   on   April   23,   2024.  \nRespondents  filed  a  timely  response  thereto  on  May  24,  2024.   However, \nClaimant  failed  to  respond.   While  the  questionnaire  was  sent  to  Claimant  via \ncertified   and   first-class   mail,   the   certified   mailing   was   returned   to   the \nCommission,  unclaimed,  on  May  20,  2023.    The  first-class  mailing  was  not \nreturned.   On  May  31,  2024,  Respondents  renewed  their  Motion  to  Dismiss.  \nThat same day, I reset the hearing on the motion for July 11, 2024, at 10:00 a.m. \nThe  Notice  of  Hearing,  like  all other correspondence in  this  matter,  was  sent  to \nClaimant at the address she confirmed in her February 22, 2024 testimony.  She \nclaimed the certified mailing on June 5, 2024; and the first-class mailing was not \nreturned as undeliverable.  The hearing on the Motion to Dismiss proceeded as \nscheduled on July  11,  2024.   Again, Claimant failed  to appear.    Respondents \n\nLOPEZ – H204222 \n \n4 \nappeared  through  counsel  and  argued  for  dismissal  of  the  action  under the \naforementioned authorities. \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. \n2. All parties received notice of the Motion to Dismiss and the July 11, \n2024, hearing thereon pursuant to AWCC R. 099.13. \n3. Respondents have proven by a preponderance of the evidence that \nClaimant has failed to prosecute her claim under AWCC R. 099.13. \n4. Respondents’ Motion to Dismiss should be, and hereby is, granted. \n5. This claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \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).  (Emphasis added) \n\nLOPEZ – H204222 \n \n5 \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 July 11, 2024, hearing to argue against \nits  dismissal—since she  appeared  at  the  first  hearing  thereon  on  February  22, \n2024.  Thus, the evidence preponderates that dismissal is warranted under Rule \n13.  Because of this finding, the application of Ark. Code Ann. § 11-9-702 (Repl. \n2012) 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).    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  with  prejudice. But  based  on \n\nLOPEZ – H204222 \n \n6 \nthe  foregoing, I find  that  the  dismissal  of  this  claim  should  be  and  hereby  is \nentered 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. H204222 MARIA G. LOPEZ, EMPLOYEE CLAIMANT CHENAL PKWY. SHELL, INC., EMPLOYER RESPONDENT FIRSTCOMP INS. CO., CARRIER RESPONDENT OPINION FILED JULY 12, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on July 11, 2024, in Little Rock, Pulask...","fetched_at":"2026-05-19T22:51:18.339Z","links":{"html":"/opinions/alj-H204222-2024-07-12","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Lopez_Maria_H204222_20240712.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}