{"id":"alj-H205073-2024-10-28","awcc_number":"H205073","decision_date":"2024-10-28","opinion_type":"alj","claimant_name":"Deleon Morehead","employer_name":"Hino Mtrs. Mfg. USA","title":"MOREHEAD VS. HINO MTRS. MFG. USA AWCC# H205073 October 28, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":["knee"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Morehead_Deleon_H205073_20241028.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Morehead_Deleon_H205073_20241028.pdf","text_length":7545,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H205073 \n \n \nDeLEON MOREHEAD, EMPLOYEE CLAIMANT \n \nHINO MTRS. MFG. USA, INC., \nEMPLOYER RESPONDENT \n \nFIRST LIBERTY INS. CORP., \nCARRIER RESPONDENT \n \n \nOPINION FILED OCTOBER 28, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on October 25, 2024, in \nForrest City, St. Francis County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by  Mr. Jason  M.  Ryburn, Attorney at Law, Little  Rock, \nArkansas. \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 October 25,  2024, in \nForrest  City,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  was Commission Exhibit  1 (see Ark.  Code  Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich best ascertains the rights of the parties”),  forms,  pleadings,  reports,  and \ncorrespondence related to this claim, consisting of 16 pages. \n\nMOREHEAD – H205073 \n \n2 \n \n The record shows the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on July  15,  2022,  Claimant \npurportedly  suffered  an  injury  to  his  knee at work  on July  7, 2022.    According  to \nthe   Forms AR-2   that   were filed   on July   19   and   20,   2022, respectively, \nRespondents  accepted   the   claim and   paid  medical   and   indemnity   benefits \npursuant thereto. \n On November  29,  2023, through  then-counsel B.  Tanner  Thomas  of \nRainwater, Holt & Sexton, Claimant filed a Form AR-C, requesting the full range of \ninitial and  additional benefits in  connection  with his  knee injury that  he  allegedly \nsuffered  at  work  on  July 7,  2022,  while he was “marking inventory.”  No  hearing \nrequest  accompanied this  filing.   Respondents  emailed  the  Commission  on \nNovember 29, 2023, indicating that their position had not changed. \n Respondents’ counsel entered his appearance before  the  Commission on \nMay  29,  2024.  On March 18,  2024, through  co-counsel  Laura  Beth  York,  the \nRainwater  firm moved  to  withdraw  from their representation  of  Claimant.    In \nsupport  of  the  motion,  York  attached  to  it  a  letter  the  firm  sent  Claimant  on \nFebruary 6, 2024, documenting that they had been unsuccessful in their efforts to \nreach Claimant by phone and by mail.  In an Order entered on April 23, 2024, the \nFull Commission granted the motion under AWCC Advisory 2003-2. \n The record reflects that nothing further took place on the claim until August \n15, 2024.  On that date, Respondents filed the instant motion, asking for dismissal \n\nMOREHEAD – H205073 \n \n3 \n \nof the claim because “the claimant has failed to prosecute his claim for additional \nworkers’ compensation benefits.”  My  office wrote  Claimant on August  20,  2024, \nasking  for  a  response  to  the  motion within  20  days.   The  letter  was  sent  by  first \nclass and  certified mail  to the Memphis,  Tennessee address for him listed  in  the \nfile and  on  the  Form  AR-C.   The  United  States  Postal  Service (“USPS”) was \nunable  to  confirm  whether Claimant had  claimed the  certified  letter; but the  first-\nclass  letter  was  not  returned.   Regardless,  no  response  from him to  the  motion \nwas  forthcoming.    On September  13,  2024,  a  hearing  on  the Motion to Dismiss \nwas  scheduled for October 25,  2024, at 12:30 p.m.  at  the St.  Francis  County \nCourthouse in Forrest  City.   The  notice  was  sent  to  Claimant  via  first-class  and \ncertified  mail to  the  same  address as in  the  previous  instance.   As  before,  while \nUSPS could not confirm delivery of the certified letter, the first-class letter was not \nreturned to the Commission. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \ncounsel 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): \n\nMOREHEAD – H205073 \n \n4 \n \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 additional benefits \nis hereby dismissed without prejudice under AWCC R. 099.13. \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\nMOREHEAD – H205073 \n \n5 \n \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 October 25, 2024, hearing to argue against \nits dismissal) since the filing of his Form AR-C on November 29, 2023.  Thus, the \nevidence preponderates that dismissal is warranted under Rule 13. \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 \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). \n\nMOREHEAD – H205073 \n \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. H205073 DeLEON MOREHEAD, EMPLOYEE CLAIMANT HINO MTRS. MFG. USA, INC., EMPLOYER RESPONDENT FIRST LIBERTY INS. CORP., CARRIER RESPONDENT OPINION FILED OCTOBER 28, 2024 Hearing before Administrative Law Judge O. Milton Fine II on October 25, 2024, in Forrest Cit...","fetched_at":"2026-05-19T22:48:08.763Z","links":{"html":"/opinions/alj-H205073-2024-10-28","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Morehead_Deleon_H205073_20241028.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}