{"id":"alj-H205333-2023-04-13","awcc_number":"H205333","decision_date":"2023-04-13","opinion_type":"alj","claimant_name":"James Reese","employer_name":"Cracker Barrel Old Country Store","title":"REESE VS. CRACKER BARREL OLD COUNTRY STORE AWCC# H205333 APRIL 13, 2023","outcome":"dismissed","outcome_keywords":["dismissed:5","granted:1"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Reese_James_H205333_20230413.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Reese_James_H205333_20230413.pdf","text_length":5749,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H205333 \n \n \nJAMES F. REESE, EMPLOYEE   CLAIMANT \n \nCRACKER BARREL OLD COUNTRY STORE, \n SELF-INSURED EMPLOYER RESPONDENT \n \nCANNON COCHRAN MGMT. SVCS., INC., \n THIRD PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED APRIL 13, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  April 12, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Mr.  Eric  Newkirk,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  Respondents’ Motion  to \nDismiss.    The  record  consists  of  Commission  Exhibit  1,  the  February  7,  2023, \nPrehearing Order. \n This  matter  was  set  for  hearing  on  the  merits  of  the  claim  for  April 12, \n2023, at  9:30 a.m. at the  Commission in Little Rock.  The following issues were \nto have been litigated: \n1. Whether Claimant sustained compensable injuries to his upper and \nlower back, right arm, and right hand by specific incident, or in the \nalternative, by gradual onset. \n\nREESE – H205333 \n2 \n \n2. Whether Claimant is entitled to  reasonable and necessary medical \ntreatment. \n3. Whether Claimant is entitled to temporary total disability benefits. \nAll other issues were reserved.  Claimant was to testify.  Respondents intended \nto  call  Leanna  Bearden—who  appeared  at  the  hearing.    However,  Claimant  did \nnot  appear.    Several  minutes  had  elapsed  after  the  appointed  time  for  the \nhearing,  I  opened  the  record  to  make  note  of  his  failure  to  appear  and  to  hear \nfrom Respondents.  Review of the record confirmed that the Commission utilized \nthe correct address in sending Claimant a copy of the Prehearing Order.  I noted \nthat  I  had  observed  Claimant  at  the  Commission  in  the  past,  when  he had \ntestified in the same courtroom in a hearing on a joint petition of a different claim; \nand that he had been personally advised during the February 6, 2023, prehearing \ntelephone conference of the date, time, and location of the hearing on this claim. \n Based   upon   Claimant’s   non-appearance,   Respondents   moved   for   a \ndismissal  of  the  claim  pursuant  to  AWCC  R.  099.13.    I  took  the  motion  under \nadvisement,  and  noted  before  closing  the  record  that  it  was  approximately  30 \nminutes past when the full hearing had supposed to begin. \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\nREESE – H205333 \n3 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. Claimant has failed to prosecute this claim. \n3. Claimant  was  provided  reasonable  notice  of  the  April 12,  2023, \nhearing, at which time the Motion to Dismiss was heard. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n5. This  claim  is  hereby  dismissed without  prejudice  under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n Under AWCC R. 099.13, \n \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 As shown by the evidence, Claimant without good cause failed to appear \nat  the  merits  hearing  on  this  claim,  where  he  was  to  have  testified  and  had  the \nburden  of  proof  on  the  stated  issues  in  the  Prehearing  Order.    He  received \nreasonable notice of this hearing from the Commission.  Claimant was unready, \nwithout  justification,  to  litigate  his  claim.    The  evidence  thus  shows  that he  has \nfailed  to  prosecute  his  claim,  and  that  reasonable  notice  of  the  proceeding  was \nprovided  to  him.    No  evidence  has  been  brought  to  the  attention  of  the \n\nREESE – H205333 \n4 \n \nCommission that would excuse his failure to appear at his own hearing.  Hence, \ndismissal of the instant claim is justified under Rule 13.  Respondents’ motion is \nhereby granted. \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. \nLEXIS  5  10,  Claim  No.  F404774  (Full  Commission  Opinion  filed  November  15, \n2005),  the  Commission  wrote:    “In  numerous  past  decisions,  this  Commission \nand  the  Appellate  Courts  have  expressed  a  preference  for  dismissals without \nprejudice.”  (Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v.  Strong, \n75  Ark.  249,  629  S.W.2d  284  (1982)).  Respondents  at  the hearing  asked  for  a \ndismissal  with  prejudice.    But  based  on  the  above  authorities, I  find  that  the \ndismissal of this claim should be and hereby is entered without prejudice.\na\n \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \na\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. H205333 JAMES F. REESE, EMPLOYEE CLAIMANT CRACKER BARREL OLD COUNTRY STORE, SELF-INSURED EMPLOYER RESPONDENT CANNON COCHRAN MGMT. SVCS., INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED APRIL 13, 2023 Hearing before Chief Administrative Law Judge O. M...","fetched_at":"2026-05-19T23:08:28.899Z","links":{"html":"/opinions/alj-H205333-2023-04-13","pdf":"https://labor.arkansas.gov/wp-content/uploads/Reese_James_H205333_20230413.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}