{"id":"alj-H208220-2024-01-12","awcc_number":"H208220","decision_date":"2024-01-12","opinion_type":"alj","claimant_name":"Gregory Kricher","employer_name":"Allied Universal","title":"KRICHER VS. ALLIED UNIVERSAL AWCC# H208220 JANUARY 12, 2024","outcome":"dismissed","outcome_keywords":["dismissed:6","granted:1"],"injury_keywords":["knee"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Kricher_Gregory_H208220_20240112.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Kricher_Gregory_H208220_20240112.pdf","text_length":7841,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H208220 \n \n \nGREGORY P. KRICHER, EMPLOYEE CLAIMANT \n \nALLIED UNIVERSAL, \nEMPLOYER RESPONDENT \n \nXL INS. AMERICA, \nCARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 12, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on January 10, 2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \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  the  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  January  10,  2024,  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.  \nAdmitted  into  evidence  were  Commission  Exhibit  1,  certified  mail  receipts, \nconsisting of two pages; and Respondents’ Exhibit 1, pleadings, correspondence \nand forms related to this claim, consisting of 20 numbered pages. \n The record reflects the following procedural history: \n Per the First Report of Injury or Illness filed November 21, 2022, Claimant \npurportedly  suffered  an  injury  to  his  right  knee on October  17, 2022,  when  he \n\nKRICHER – H208220 \n \n2 \n \nstepped  into  a  pothole  while  coming  off  the  loading  dock  at  work.  According  to \nthe Form AR-2 that was also filed on November 21, 2022, Respondents accepted \nthe  injury  as  compensable  and  paid  medical  and  indemnity  benefits  pursuant \nthereto. \n On  December  19,  2022,  through  then-counsel  Laura  Beth  York,  Claimant  \nfiled  a  Form  AR-C,  alleging  that  he  was  entitled  to  the  full  range  of initial  and \nadditional  benefits  concerning  his  alleged  knee  injury.    No  hearing  request \naccompanied this filing.  Later, on April 5, 2023, York moved to withdraw from her \nrepresentation  of  Claimant.    In  an  Order  entered  on  April  18,  2023,  the Full \nCommission granted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nNovember 2, 2023.  On that date, Respondents filed the instant motion, asking for \ndismissal  of  the  claim  under  Ark.  Code  Ann.  §  11-9-702(a)(4)\n1\n  (Repl.  2012)  and \nAWCC R. 099.13 because more than six months had elapsed since Claimant took \nany action to prosecute his claim.  The Clerk of the Commission on November 2, \n2023, assigned the motion to Administrative Law Judge Chandra Black. \n \n \n1\nSince Respondents have acknowledge in their motion, and the evidentiary \nrecord  establishes,  that  Respondents  accepted  this  claim  and  paid  benefits \npursuant  thereto  (see supra),  the  appropriate  provision  would  instead  be  §  11-9-\n702(d). \n\nKRICHER – H208220 \n \n3 \n \n On November 3, 2023, Judge Black wrote Claimant, asking for a response \nto the motion within 20 days.  The letter was sent by first class and certified mail \nto  the  Camden,  Arkansas  address  of  Claimant  listed  in  the  file  and  on  his  Form \nAR-C.  Claimant signed for the certified letter on November 6, 2023; and the first-\nclass  letter  was  not  returned.    Regardless,  no  response  from  him  to  the  motion \nwas  forthcoming.    On  November 27,  2023,  a  hearing  on  the  Motion  to  Dismiss \nwas  scheduled  fo r  January  10,  2024,  at  9:30  a.m.  at  the  Commission  in  Little \nRock.  The Notice of Hearing was sent to Claimant via first-class and certified mail \nto  the  same  address  as  before.  In  this  instance, “Carla  Kricher”  signed  for  the \ncertified letter on December 12, 2023; and the first-class letter was not returned to \nthe Commission.  Thus, the evidence preponderates that Claimant received notice \nof the hearing. \n The hearing on the Motion to Dismiss proceeded as scheduled on January \n10,  2024,  before  the  undersigned.  Again,  Claimant  failed  to  appear  at  the \nhearing.    But  Respondents  appeared  through  counsel  and  argued  for dismissal \nunder the aforementioned 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): \n\nKRICHER – H208220 \n \n4 \n \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. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  his \nclaim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby  dismissed \nwithout 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\nKRICHER – H208220 \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 January 10, 2024, hearing to argue against \nits dismissal) since the filing of his Form AR-C on December 19, 2022.  Thus, the \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  Because  of \nthis finding, it is unnecessary to address the applicability of Ark. Code Ann. § 11-\n9-  702 (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(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.\n2\n \n \n \n2\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\nKRICHER – H208220 \n \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. H208220 GREGORY P. KRICHER, EMPLOYEE CLAIMANT ALLIED UNIVERSAL, EMPLOYER RESPONDENT XL INS. AMERICA, CARRIER RESPONDENT OPINION FILED JANUARY 12, 2024 Hearing before Administrative Law Judge O. Milton Fine II on January 10, 2024, in Little Rock, Pulaski Count...","fetched_at":"2026-05-19T22:58:23.599Z","links":{"html":"/opinions/alj-H208220-2024-01-12","pdf":"https://labor.arkansas.gov/wp-content/uploads/Kricher_Gregory_H208220_20240112.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}