{"id":"alj-H206370-2023-11-13","awcc_number":"H206370","decision_date":"2023-11-13","opinion_type":"alj","claimant_name":"Kytryk Robinson","employer_name":"Pods LLC","title":"ROBINSON VS. PODS LLC AWCC# H206370 NOVEMBER 13, 2023","outcome":"dismissed","outcome_keywords":["dismissed:5"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Robinson_Kytryk_H206730_20231113.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Robinson_Kytryk_H206730_20231113.pdf","text_length":8032,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H206730 \n \n \nKYTRYK L. ROBINSON, EMPLOYEE CLAIMANT \n \nPODS LLC, EMPLOYER RESPONDENT \n \nLM INS. CORP., \n CARRIER RESPONDENT \n \n \nOPINION FILED NOVEMBER 13, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on November 9, \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  November 9, 2023, in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro se,  failed  to  appear  at  the  hearing.  \nWithout  objection,  the  Commission’s  file  on  the  claim  has  been  incorporated \nherein  in  its  entirety  by  reference.    In  addition,  Respondents’  Exhibit  1, forms, \npleadings  and  correspondence  related  to  the  claim,  consisting  of 33  numbered \npages, was admitted into evidence. \n\nROBINSON – H206730 \n2 \n \n The record reflects the following procedural history: \n The  First  Report  of  Injury  or  Illness  filed  on  September  19,  2022,  reflects \nthat  Claimant  purportedly  injured  his  lower  back  in  a  motor  vehicle  accident  on \nSeptember  8,  2022.    Per  the  Form  AR-2  that  was  also  filed  on  September 21, \n2022,  Respondents  accepted  the  claim  and  paid  medical  and  temporary  total \ndisability benefits pursuant thereto. \n Through  then-counsel  Laura  Beth  York,  Claimant  filed  a  Form  AR-C  on \nNovember  1,  2022.    Therein,  he  requested  the  full  range  of  initial  and  additional \nbenefits   in   connection   with   his   alleged   back   injury.      No   hearing   request \naccompanied this filing.  On February 27, 2023, York moved to withdraw from her \nrepresentation  of  Claimant.    In  an  order  entered  on  March  9,  2023,  the  Full \nCommission granted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  no  further  activity  occurred  on  the  claim  until \nSeptember  11,  2023,  when  Respondents  filed  the  instant  motion,  asking  for \ndismissal of it under AWCC R. 099.13 and Ark. Code Ann. § 11-9-702(a)(4) & (d) \n(Repl.  2012).    On  September  14,  2023,  my  office  wrote  Claimant,  asking  for  a \nresponse  to  the  motion  within 20  days.    The  letter  was  sent  by  first-class  and \ncertified mail to the address listed for Claimant in the file and matching that on his \nForm  AR-C.    Someone  with  an  illegible  signature  claimed  the  certified  letter  on \nSeptember 16,  2023; and  the first-class  correspondence  was  not  returned to  the \nCommission.  Regardless, no response from him was forthcoming.  On October 9, \n2023,  I  scheduled  a  hearing  on  Respondents’  motion  for November  9,  2023,  at \n\nROBINSON – H206730 \n3 \n \n11:00 a.m. at the Commission in Little Rock.  Notice of this was sent to Claimant \nby  certified  and  first-class  mail  at  the  same  address  as  before.    In  this  instance, \nthe  United  States Postal  Service  was  unable  to  verify  whether or  not he  claimed \nthe  certified  letter.    But  the  record  reflects  that  neither  it  nor  the  first-class \ncorrespondence   was   returned   to   the   Commission.      Thus,   the   evidence \npreponderates that he received the Notice of Hearing. \n The   hearing   on   the   Motion   to   Dismiss  proceeded  as   scheduled   on \nNovember  9,  2023.    Again,  Claimant  failed  to  appear  at  the  hearing.   But \nRespondents  appeared  through  counsel  and  argued  for  dismissal  under  the \naforementioned authorities. \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. \n\nROBINSON – H206730 \n4 \n \n5. The  application  of  Ark.  Code  Ann.  §  11-9-702(d)  (Repl.  2012)  is \nmoot and will not be addressed. \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\nROBINSON – H206730 \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  November  9,  2023,  hearing  to  argue \nagainst  its  dismissal)  since  the  filing  of  the  Form  AR-C on November  1,  2022.  \nThus,  the  evidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  \nBecause  of  this  finding,  the  application  of  §  11-9-702(d)  is  moot  and  will  not  be \naddressed. \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.\n1\n \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\nROBINSON – H206730 \n6 \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","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H206730 KYTRYK L. ROBINSON, EMPLOYEE CLAIMANT PODS LLC, EMPLOYER RESPONDENT LM INS. CORP., CARRIER RESPONDENT OPINION FILED NOVEMBER 13, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on November 9, 2023, in Little Rock, Pulaski County, ...","fetched_at":"2026-05-19T23:00:21.248Z","links":{"html":"/opinions/alj-H206370-2023-11-13","pdf":"https://labor.arkansas.gov/wp-content/uploads/Robinson_Kytryk_H206730_20231113.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}