{"id":"alj-H208422-2024-02-12","awcc_number":"H208422","decision_date":"2024-02-12","opinion_type":"alj","claimant_name":"Marlis Scott","employer_name":"Core Mark Holding Co., Inc","title":"SCOTT VS. CORE MARK HOLDING CO., INC. AWCC# H208422 FEBRUARY 12, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":["back","ankle"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Scott_Marlis_H208422_20240212.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Scott_Marlis_H208422_20240212.pdf","text_length":7706,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H208422 \n \n \nMARLIS M. SCOTT, EMPLOYEE CLAIMANT \n \nCORE MARK HOLDING CO., INC., \nEMPLOYER RESPONDENT \n \nINDEMNITY INS. CO. OF NO. AMER., \nCARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 12, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on February 9, 2024, in \nForrest City, St. Francis County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Rick  Behring,  Jr.,  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  February  9,  2024,  in \nForrest  City,  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  was  Respondents’  Exhibit  1,  pleadings,  correspondence \nand forms related to this claim, consisting of  33 numbered pages.  Also, in order \nto  address  adequately  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  two \n\nSCOTT – H208422 \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  14,  2022, \nClaimant purportedly suffered an injury to his lower extremity at work on October \n21, 2022, when a stack of pallets fell over and struck him.  According to the Form \nAR-2  that  was  filed  on March  14,  2023,  Respondents  denied  the  claim  due  to, \ninter alia, the lack of medical evidence. \n On  December  1,  2022,  through  then-counsel  Laura  Beth  York,  Claimant \nfiled  a  Form  AR-C.    Therein, he alleged  that he was  entitled  to  the  full  range  of \ninitial  and  additional  benefits  as  a  result  of  compensable  injuries  that  he  had \nsustained to his lower back, right leg, right ankle, left foot, and “other whole body.”  \nNo hearing request accompanied this filing.   Respondents propounded discovery \nto Claimant on May 11, 2023.  But responses thereto remained outstanding. \n On October 10, 2023, York moved to withdraw from the case.  In an Order \nended  on  October  24,  2023,  the  Full  Commission  granted  the  motion  under \nAWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nNovember 28, 2023.   On  that date,  Respondents  filed the  instant motion, asking \nfor dismissal of the claim under AWCC R. 099.13 and Ark. Code Ann. § 11-9-702 \n\nSCOTT – H208422 \n \n3 \n \n(Repl.  2012).    My  office  wrote  Claimant  on  November 28,  2023,  asking  for  a \nresponse  to  the  motion  within  20  days.    The  letter  was  sent  by  first  class and \ncertified  mail  to  the  Marianna  address  of  Claimant  listed  in  the  file  and  his  Form \nAR-C.  Claimant signed for the certified letter on December 2, 2023; and the first-\nclass  letter  was  not  returned.    Regardless,  no  response  from  Claimant  to  the \nmotion  was  forthcoming.    On  December  21,  2023,  a  hearing  on  the  Motion  to \nDismiss  was  scheduled  fo r  February  9,  2023,  at  10:30  a.m.  at  the  St.  Francis \nCounty Courthouse in Forrest City.  The notice was sent to Claimant via first-class \nand certified mail to the same address as before.  As before, Claimant signed for \nthe  certified  letter,  on  December  26,  2023;  and  the  first-class  letter  was not \nreturned to the Commission. \n The   hearing   on   the   Motion   to   Dismiss   proceeded   as   scheduled   on \nFebruary  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): \n\nSCOTT – H208422 \n \n4 \n \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis matter. \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;  this  claim  for  initial  benefits is \nhereby dismissed 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 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\nSCOTT – H208422 \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 February 9, 2023, hearing to argue against \nits dismissal) since the  filing of his Form AR-C on December 1, 2022.   Thus, the \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  Because  of \nthis finding, it is unnecessary to address the application of § 11-9-702. \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 Pr  ofessional \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 \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\nSCOTT – H208422 \n \n6 \n \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. H208422 MARLIS M. SCOTT, EMPLOYEE CLAIMANT CORE MARK HOLDING CO., INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED FEBRUARY 12, 2024 Hearing before Administrative Law Judge O. Milton Fine II on February 9, 2024, in F...","fetched_at":"2026-05-19T22:57:18.565Z","links":{"html":"/opinions/alj-H208422-2024-02-12","pdf":"https://labor.arkansas.gov/wp-content/uploads/Scott_Marlis_H208422_20240212.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}