{"id":"alj-H206747-2023-08-28","awcc_number":"H206747","decision_date":"2023-08-28","opinion_type":"alj","claimant_name":"Susan Williams","employer_name":"Trumann Sch. Dist","title":"WILLIAMS VS. TRUMANN SCH. DIST. AWCC# H206747 AUGUST 28, 2023","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:1"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Williams_Susan_H206747_20230828.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Williams_Susan_H206747_20230828.pdf","text_length":7939,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H206747 \n \n \nSUSAN G. WILLIAMS, EMPLOYEE CLAIMANT \n \nTRUMANN SCH. DIST., \nSELF-INSURED EMPLOYER RESPONDENT \n \nARK. SCH. BDS. ASSN., \nTHIRD-PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED AUGUST 28, 2023 \n \nHearing before Administrative Law Judge O. Milton Fine II on August 18, 2023, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant   represented   by   Mr.   Jim   R.   Burton,   Attorney   at   Law,   Jonesboro, \nArkansas (neither appearing). \n \nRespondents  represented  by  Ms.  Melissa  Wood,  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  August  18,  2023,  in \nJonesboro, Arkansas.  No testimony was taken in the case.  Neither Claimant nor \nher counsel appeared at the hearing.  Without objection, the Commission’s file on \nthe claim has been incorporated herein in its entirety by reference.  Admitted into \nevidence  was  Respondents’  Exhibit  1—forms,  pleadings  and  correspondence \nrelated to the claim—consisting of one (1) index page and thirteen (13) numbered \npages thereafter. \n\nWILLIAMS – H206747 \n \n2 \n \n \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on September  20,  2022, \nClaimant  purportedly  injured  her  left  foot  at  work  on  September  16,  2022.  \nAccording to the Form AR-2 that was filed on September 29, 2022, Respondents \naccepted  the  injury  as  compensable  and  paid  medical  and  temporary  total \ndisability benefits pursuant thereto.   \n Claimant has not filed a Form AR-C in this matter.  However, on November \n8, 2022, she (at that time pro se) emailed the Commission: \nMy  name  is  Susan  Grace  Williams.    I  am  requesting  a  hearing  for \nadditional  workman’s  compensation  benefits.    The  claim  is  over \n$2,500 and I am willing to go to mediation. \n \nThis communication is legally sufficient to constitute a claim for additional benefits \nunder Ark. Code Ann. § 11-9-702(c) (Repl. 2012), which reads: \nA claim for additional compensation must specifically state that it is a \nclaim   for   additional   compensation.      Documents   which   do   not \nspecifically  request  additional  benefits  shall  not  be  considered  a \nclaim for additional compensation. \n \nSee  White  Cty.  Judge  v. Menser,  2020  Ark.  140,  597  S.W.3d  640.  She  later \nwithdrew  her  hearing  request  that  same  day.    But  just  two  days  later,  on \nNovember 10, 2022, she renewed the request. \n Respondents’  counsel  entered  her  appearance  on  their  behalf  before  the \nCommission  on  November 16,  2022.    Claimant’s  counsel  followed  suit  on \nNovember  28,  2022.  On  November  18,  2022,  Respondents  indicated  that  they \nwere willing to mediate the matter.  After months of unsuccessful efforts to set up \n\nWILLIAMS – H206747 \n \n3 \n \n \na mediation conference, the file was returned to the Commission’s general files on \nFebruary 20, 2023. \n No  further  activity  occurred  on  this  claim  until  May  10,  2023,  when \nRespondents  filed  the  instant  Motion  to  Dismiss.    Therein,  they  alleged  that \ndismissal of the claim was called for under AWCC R. 099.13 and Ark. Code Ann. \n§   11-9-702  because  Claimant had  not  sought  a  hearing  before  the  Commission \nover  the  previous  six  months.  On  May  30,  2023,  my  office  wrote  both  Claimant \nand  her  attorney,  giving  them  20  days  to  respond  to  the  motion.    However, no \nresponse to the motion was forthcoming. \n On  June  27,  2023,  I  scheduled  a  hearing  on  the  Motion  to  Dismiss  for \nAugust 18,   2023,   at   11:30   a.m.   at   the   Craighead   County   Courthouse   in \nJonesboro.  The hearing notice was sent not only to the attorneys of record, but to \nClaimant at  the  address  for  her  listed  in  the  file.    She  or  someone  on  her  behalf \nsigned  for  the  certified  mail  on  June  29,  2023;  and  the  first-class  mail  was  not \nreturned. \n The  hearing  on  the  Motion to  Dismiss  proceeded  as  scheduled  on August \n18, 2023.  Neither Claimant nor her attorney made an appearance.  Respondents \nappeared  through  counsel  and  argued  for  dismissal  under  the  aforementioned \nauthorities. \n\nWILLIAMS – H206747 \n \n4 \n \n \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. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby \ndismissed 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\nWILLIAMS – H206747 \n \n5 \n \n \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 the claim because she has taken no further action in \npursuit of it—including appearing at the August 18, 2023, hearing to argue against \nits dismissal—since the November 10, 2022, hearing request.  Thus, the evidence \npreponderates that dismissal is warranted under Rule 13.  Because of this finding, \nit  is  unnecessary  to  address the  applicability  of  Ark.  Code  Ann.  § 11-9-702(d) \n(Repl. 2012). \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\nWILLIAMS – H206747 \n \n6 \n \n \n(Emphasis  added)(citing Professional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629  S.W.2d  284  (1982)).    Respondents  at  the  hearing  asked  for a  dismissal \nwithout  prejudice.    Based  on  the  above  authorities, I  agree  and  find  that  the \ndismissal of the claim should be and hereby is entered without prejudice. \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. H206747 SUSAN G. WILLIAMS, EMPLOYEE CLAIMANT TRUMANN SCH. DIST., SELF-INSURED EMPLOYER RESPONDENT ARK. SCH. BDS. ASSN., THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 28, 2023 Hearing before Administrative Law Judge O. Milton Fine II on August 18, ...","fetched_at":"2026-05-19T23:04:22.241Z","links":{"html":"/opinions/alj-H206747-2023-08-28","pdf":"https://labor.arkansas.gov/wp-content/uploads/Williams_Susan_H206747_20230828.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}