{"id":"alj-H208397-2024-07-26","awcc_number":"H208397","decision_date":"2024-07-26","opinion_type":"alj","claimant_name":"Aniefiok Jacob","employer_name":"Nucor Yamato Steel Co","title":"JACOB VS. NUCOR YAMATO STEEL CO. AWCC# H208397 July 26, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":["back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Jacob_Aniefiok_H208397_20240726.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Jacob_Aniefiok_H208397_20240726.pdf","text_length":10367,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H208397 \n \n \nANIEFIOK JACOB, EMPLOYEE CLAIMANT \n \nNUCOR YAMATO STEEL CO., \nEMPLOYER RESPONDENT \n \nARCH INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED JULY 26, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on July 25,  2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant  represented  by  Mr. Scott  Hunter,  Jr.,  Attorney  at  Law, Jonesboro, \nArkansas (neither appearing). \n \nRespondents represented by Mr. Zachary F. 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 July 25, 2024, in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant failed to appear \nat  the  hearing;  and  his  counsel  waived  his  appearance.  Admitted  into  evidence \nwas Respondents’  Exhibit  1,  correspondence  and  forms  related  to  this  claim, \nconsisting of one index page and four pages thereafter.  Also, in order to address \nadequately   this   matter   under   Ark.   Code   Ann. § 11-9-705(a)(1)   (Repl. \n2012)(Commission  must  “conduct  the  hearing    .  .  .  in  a  manner  which  best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe record documents from the Commission’s file on the claim, consisting of 34 \n\nJACOB – H208397 \n \n2 \n \npages.   In accordance  with Sapp  v.  Tyson  Foods,  Inc.,  2010  Ark. App.  517, ___ \nS.W.3d  ___,  these  documents  have  been  served  on  the  parties  in  conjunction \nwith this opinion. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on December  15, 2022, \nClaimant purportedly suffered an injury to his lower back while driving a forklift at \nwork  on January 21,  2020.   According  to  the  Form  AR-2  that  was also filed  on \nDecember  15,  2022, Respondents controverted the  claim in  its  entirety,  claiming \nthat  the statute  of  limitations  barred  the  claim  and  that  the  Commission  lacked \njurisdiction  over  the  matter  since  Claimant  was  hired  in  Tennessee  and  the \nalleged injury purportedly occurred there. \n On November  30,  2022,  through  counsel,  Claimant  filed  a  Form  AR-C.  \nTherein, he asserted that his client was entitled to the full range of initial benefits \nas  the  result  of  his  alleged  back  injury,  which  was  represented  to have occurred \non  January  20,  2020.    In  an  amended  Form  AR-C  filed  on  December  14,  2022, \nthe alleged date of injury was changed to January 21, 2020. \n Counsel sent a letter to the Commission on January 5, 2023, requesting a \nhearing on  the  claim.   The  file  was  assigned  to  me  on  January  6,  2023;  and  on \nJanuary    12,    2023,    I    issued    prehearing    questionnaires    to    the    parties.  \nRespondents’ co-counsel entered his appearance on January 17, 2023.  Claimant \nfiled  a  timely  response  thereto  on January  27,  2023,  and  Respondents  followed \n\nJACOB – H208397 \n \n3 \n \nsuit on February 2, 2023.  Following a prehearing telephone conference on March \n6, 2023, I issued a prehearing order on March 7, 2023, that scheduled a hearing \nfor May 19, 2023, on the following issues: \n1. Whether the Commission has jurisdiction over this claim. \n2. Whether this claim is barred by the statute of limitations. \n3. Whether Claimant sustained  a  compensable  injury  to  his  back  by \nspecific incident. \n4. Whether  Claimant is  entitled  to reasonable  and  necessary  medical \ntreatment of his alleged back injury. \n5. Whether Claimant is entitled to temporary total disability benefits. \n6. Whether Claimant is entitled to an impairment rating and permanent \npartial disability benefits pursuant thereto. \n7. Whether Claimant is entitled to a controverted attorney’s fee. \nHowever, on May  18, 2023,  Claimant  requested  that  the hearing be  cancelled in \norder  to  allow  the  parties  time  to  pursue  settlement.   The  request  was  granted, \nand the file was returned to the Commission’s general files. \n On April  24,  2024,  Claimant’s  counsel  again  wrote  the  Commission, \nrequesting a hearing on the claim.  The file was reassigned to me by the Clerk of \nthe Commission on April 30; 2024; and on May 1, 2024, I again issued prehearing \nquestionnaires to the parties.  Claimant filed a timely response thereto on May 20, \n2024,  and  Respondents  did  as  well  on  June  10,  2024.   During the  July  1,  2024, \n\nJACOB – H208397 \n \n4 \n \nprehearing telephone conference, the parties agreed that another conference was \nneeded.  This was set by agreement for July 15, 2024. \n However, on July 8, 2024, the office of Claimant’s counsel emailed me the \nfollowing: \nJudge Fine, \n \nWe  have  spent  a  considerable  amount  of  time  discussing  this \nmatter with our Claimant and after thoughtful consideration, he has \ndecided that he does not want to continue to pursue this matter any \nfurther.    We  are  unsure  of  the  best  route  to  take  as  far  as \nproceeding forward with a Motion to Dismiss without prejudice or if \nwe should allow it to sit in general files for the 6 month time frame \nbefore  proceeding.    If  you  will,  please  advise  and  we  will  act \npromptly.  Thank you, Your Honor! \n \nI replied to the parties that same day: \nI   am   interpreting   this   communication   as   (1)   a   withdrawal   of \nClaimant’s hearing request and (2) his lack of objection to dismissal \nof  his  case  without  prejudice.    I  will  hold  the  file  in  my  office  for \nseven days.  If a motion to dismiss is filed within that time frame, I \nwill expedite the hearing and hold it here in Little Rock.  Otherwise, \nI  will  simply  return  this  file  to  the  Commission’s  general  files.  \nThanks \n \nClaimant’s counsel replied to this: \nJudge Fine, \n \nWith  regard  to  your  below  email,  we  are  withdrawing  our  hearing \nrequest and will not be objecting to a dismissal of his case without \nprejudice. \n \n In  prompt  response  to  my  communication,  Respondents  on  July  8,  2024, \nfiled the instant Motion to Dismiss.  Because of Claimant’s waiver of objection to \ndismissal,  no  formal  response  to  the  motion  was  sought  from  him.    Instead,  as \n\nJACOB – H208397 \n \n5 \n \nindicated, a hearing was set for July 25, 2024, at 10:00 a.m. at the Commission in \nLittle  Rock.   The July  17,  2024, Notice  of  Hearing was  sent  to  Claimant  via \ncertified  mail.  He  claimed  the mailing  on  July  23, 2024.  The  attorneys received \ntheir copies of the notice via email. \n The hearing on the Motion to Dismiss proceeded as scheduled on July 25, \n2024.  Again, both Claimant and his attorney 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 matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. Respondents have proven by a preponderance of the evidence that \nClaimant has failed to prosecute his claim under AWCC R. 099.13. \n\nJACOB – H208397 \n \n6 \n \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  for  initial \nbenefits  is  hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \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 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 of his stated intention on July 8, \n2024,  that  he  would  not  be  pursuing it any  further.    Thus,  the  evidence \npreponderates that dismissal is warranted under Rule 13.  Because of this finding, \n\nJACOB – H208397 \n \n7 \n \nit  is  unnecessary  to  address  the  application  of Ark.  Code  Ann. §  11-9-702(a)(4) \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).    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 initial benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \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).","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H208397 ANIEFIOK JACOB, EMPLOYEE CLAIMANT NUCOR YAMATO STEEL CO., EMPLOYER RESPONDENT ARCH INS. CO., CARRIER RESPONDENT OPINION FILED JULY 26, 2024 Hearing before Administrative Law Judge O. Milton Fine II on July 25, 2024, in Little Rock, Pulaski County, Ark...","fetched_at":"2026-05-19T22:52:06.676Z","links":{"html":"/opinions/alj-H208397-2024-07-26","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Jacob_Aniefiok_H208397_20240726.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}