{"id":"alj-H204773-2023-04-24","awcc_number":"H204773","decision_date":"2023-04-24","opinion_type":"alj","claimant_name":"Byron Willcutt","employer_name":"Hytrol Conveyor Co., Inc","title":"WILLCUTT VS. HYTROL CONVEYOR CO., INC. AWCC# H204773 APRIL 24, 2023","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:1"],"injury_keywords":["shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Willcutt_Byron_H204773_20230424.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Willcutt_Byron_H204773_20230424.pdf","text_length":7307,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H204773 \n \n \nBYRON WILLCUTT, EMPLOYEE CLAIMANT \n \nHYTROL CONVEYOR CO., INC., \n SELF-INSURED EMPLOYER RESPONDENT \n \nCANNON COCHRAN MGMT. SVCS., INC., \n THIRD PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED APRIL 24, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on April 21, 2023, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Justin  Parkey,  Attorney  at  Law,  Jonesboro, \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  April  21,  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.    At \nRespondents’ request, the Commission’s file on the claim has been incorporated \nherein in its entirety by reference. \n The record reveals the following procedural history: \n Claimant,  through  then-counsel  Laura  Beth  York,  filed  a  Form  AR-C on \nJuly 1, 2022, asking for the full range of initial and additional benefits and alleging \n\nWILLCUTT – H204773 \n2 \n \nthat  he  injured “his  head,  right  shoulder,  and  other  whole  body”  when  he lost \nconsciousness and  fell  to  the  ground  at  work on March 16,  2022.   Per  the  Form \nAR-2  filed  on  July  13,  2022,  Respondents  accepted  the  claim  as  a  medical-only \none and paid benefits pursuant thereto. \n On September 6, 2022, York moved to withdraw from the case.  In an order \nentered  on  September  16,  2022,  the  Full  Commission  granted  the  motion  under \nAWCC Advisory 2003-2. \n The  record  reflects  that  no  further  action  took  place  on  this  claim  until \nJanuary  17,  2023,  when  Respondents  filed   the  instant  Motion  to   Dismiss.  \nTherein,  they  argued that dismissal of  the  claim  was  warranted  under  Ark.  Code \nAnn.  §  11-9-702(a)(4)  &  (d)  (Repl.  2012),  and  alleged  that  Claimant has  never \nmade a bona fide hearing request to the Commission.  On January 20, 2023, my \noffice  wrote  Claimant,  asking  for  a  response  to  the  motion  within 20  days.    This \ncertified letter was returned to my office, unclaimed, on February 21, 2023; but the \nfirst-class   letter   containing   the   same   correspondence,   sent   to   the   address \nsupplied  to  the  Commission  by  Claimant,  was  not  returned.    Nonetheless,  no \nresponse   from   him   was   forthcoming.      On March   2,   2023,   a   hearing   on \nRespondents’  motion  was  scheduled  for April  21,  2023,  at  1:30 p.m.  at  the \nCraighead  County  Courthouse  in  Jonesboro,  Arkansas.    The  Notice  of  Hearing \nwas  sent  to  Claimant  by  certified  and  first-class  mail  to  the  same  address  as \nbefore.    In  this  instance,  the  United  States  Postal  Service  was  unable  to  verify \nwhether  Claimant  had  claimed  the  certified  letter.    But  the  first-class  letter  was \n\nWILLCUTT – H204773 \n3 \n \nnever  returned.    Thus,  the  evidence  preponderates  that  the  notice  reached  its \nproper destination. \n The  hearing  proceeded  as  scheduled  on  April  21,  2023.    Again,  Claimant \nfailed to appear at the hearing.  But Respondents appeared through counsel and \nargued  for  dismissal  under  the  aforementioned  authorities  as  well  as  AWCC  R. \n099.13. \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 claim. \n2. The parties were provided reasonable notice of the  Motion to Dismiss and \nof the hearing thereon. \n3. Respondents  have  proven  by  a  preponderance  of  the  evidence  that \nClaimant has failed to prosecute his claim. \n4. Respondents  have  proven  by  a  preponderance  of  the  evidence  that  this \nclaim should be dismissed under AWCC R. 099.13. \n5. The Motion to Dismiss is hereby granted. \n6. This claim is hereby dismissed without prejudice. \n\nWILLCUTT – H204773 \n4 \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)(discussing, inter alia, Rule 13). \n Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must \nprove  by  a  preponderance  of  the  evidence  that  this  claim  should  be  dismissed.  \nThis  standard  means  the  evidence  having  greater  weight  or  convincing  force.  \nBarre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (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 April 21, 2023, hearing to argue against its \ndismissal)  since  the  filing  of  his  Form  AR-C  on  July  1,  2022.    Thus,  dismissal  is \nwarranted  under  Rule  13.    Respondents  have  met  their  burden  of  proof  in  this \nmatter.    Because  of  this  finding,  it  is  unnecessary  to  address  the  application  of      \n§ 11-9-702 here. \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 \n\nWILLCUTT – H204773 \n5 \n \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 requested a dismissal with \nprejudice.    But  based  on  the  foregoing,  I  find  that  the  dismissal  of  this  claim \nshould 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. H204773 BYRON WILLCUTT, EMPLOYEE CLAIMANT HYTROL CONVEYOR CO., INC., SELF-INSURED EMPLOYER RESPONDENT CANNON COCHRAN MGMT. SVCS., INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED APRIL 24, 2023 Hearing before Chief Administrative Law Judge O. Milton F...","fetched_at":"2026-05-19T23:08:43.712Z","links":{"html":"/opinions/alj-H204773-2023-04-24","pdf":"https://labor.arkansas.gov/wp-content/uploads/Willcutt_Byron_H204773_20230424.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}