{"id":"alj-H208936-2023-08-10","awcc_number":"H208936","decision_date":"2023-08-10","opinion_type":"alj","claimant_name":"Ralph Johnson","employer_name":"Thompson Constr. Grp., Inc","title":"JOHNSON VS. THOMPSON CONSTR. GRP., INC. AWCC# H208936 AUGUST 10, 2023","outcome":"dismissed","outcome_keywords":["dismissed:5","granted:3"],"injury_keywords":["neck"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//Johnson_Ralph_H208936_20230810.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Johnson_Ralph_H208936_20230810.pdf","text_length":8325,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H208936 \n \n \nRALPH JOHNSON, EMPLOYEE CLAIMANT \n \nTHOMPSON CONSTR. GRP., INC. \n EMPLOYER RESPONDENT \n \nZURICH AMER. INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED AUGUST 10, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  August  10, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Ms.  Carol  Lockard  Worley,  Attorney  at  Law,  Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on  the Motion to Dismiss filed \nby Respondents.  A hearing on the motion was conducted on August 10, 2023, in \nLittle  Rock,  Arkansas.   Claimant,  who  is pro se,  failed to  appear.  Respondents \nwere represented at the hearing by Ms. Carol Lockard Worley, Attorney at Law, \nof  Little  Rock,  Arkansas.    The  record  consists  of  Respondents’  Exhibit  1, \npleadings,  forms  and  correspondence  related  to  the  claim,  consisting  of  one \nindex page and nine numbered pages thereafter.  In addition,  without objection, \nthe Commission’s file has been incorporated herein in its entirety by reference. \n The evidence reflects that  per the First Report of Injury or Illness filed on \nDecember  23,  2022,  Claimant  purportedly  injured  h  is  neck  on  December 16, \n\nJOHNSON – H208936 \n \n2 \n2022, when  he was  riding  a  UTV  at  work  and  struck  some  iron  beams.  \nAccording to the Form AR-2 that was filed on December 30, 2022, Respondents \ndenied the claim due to an alleged lack of objective findings. \n On  December  28,  2022,  Claimant  (through  then-counsel  Jim  R.  Burton) \nfiled  a  Form  AR-C,  requesting  various  initial  benefits.    No  hearing  request \naccompanied the filing.   In an email to the Operations & Compliance Division of \nthe  Commission  on  January  4,  2023,  Respondents  reiterated  that  they  were \ncontroverting  the  claim  on  the  basis  cited  above.    Their  attorney  entered  her \nappearance before the Commission on January 5, 2023. \n The  record  further  reflects  that  on  May  1,  2023,  Respondents  filed  the \ninstant  Motion  to  Dismiss.    Therein,  they  argued  that  dismissal  was  warranted \nunder AWCC R. 099.13 because “Claimant has not sought any type of bona fide \nhearing  before  the  Workers’  Compensation  Commission  .  .  .  nor  has  he \ncooperated in discovery efforts regarding his claim.”  On May 19, 2023, my office \nwrote Mr. Burton, asking for a response to the motion within twenty (20) days.  A \ncopy  was  sent  to  Claimant  at  the  address  listed  for  him  in  his  Forms AR-1  and \nAR-C; however, it was returned to the Commission, unclaimed, on May 31, 2023. \n However,  Mr.  Burton  by  this  point  had  already  filed  with  the  Clerk  of  the \nCommission a Motion to Withdraw from the case.  Therein, he stated that he “has \nmade several attempts to contact claimant with no response” therefrom.  On May \n23,  2023,  the  Full  Commission  granted  the  Motion  to  Withdraw  under  AWCC \nAdvisory  2003-2.    Upon  learning  of  this,  my  office  re-sent  the  20-day  letter to \n\nJOHNSON – H208936 \n \n3 \nClaimant, now pro se, on June 13, 2023.  This correspondence was sent by first-\nclass  and  certified mail  to  the  same  address  as  before.    The  certified  letter  was \nreturned  to  the  Commission,  unclaimed,  on  June  26,  2023;  however  the  first-\nclass  letter  was  not  returned.  Nonetheless,  no  response  was  forthcoming  from \nhim. \n On  July 11,  2023,  a  hearing on  the  Motion  to  Dismiss  was  scheduled  for \nAugust 10, 2023, at 9:30 a.m. at the Commission in Little Rock.  The notice was \nsent  to  Claimant  by  first-class  mail  to  the  same  address  as  before.    The letter \nwas returned; the envelope bears the handwritten notations “MY SON NOT ME” \nand “Return  to  Sender.”  Again,  this  was  the  only  address  furnished  to  the \nCommission in connection with this claim. \n The hearing on the Motion to Dismiss proceeded as scheduled on August \n10, 2023.  Again, Claimant failed to appear.  But Respondents appeared through \ncounsel  and  argued  for  dismissal  of  the  action  under  Rule  13  along  with  Ark. \nCode Ann. § 11-9-702(a)(4) (Repl. 2012). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n\nJOHNSON – H208936 \n \n4 \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 \nthis claim should be dismissed under AWCC R. 099.13. \n4.  The Motion to Dismiss is hereby granted. \n5.  This claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \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).  (Emphasis added)  In turn, Ark. Code Ann. § 11-9-702(a)(4) (Repl. 2012) \nreads: \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  compensation \nno  bona  fide  request  for  a  hearing has  been  made  with  respect to \nthe  claim,  the  claim  may,  upon  motion  and  after  hearing, be \ndismissed  without  prejudice  to  the  refiling  of  the  claim  within \nlimitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must prove \nby  a  preponderance  of  the  evidence  that  dismissal  should  be  granted.    The \nstandard  “preponderance  of  the  evidence”  means  the  evidence  having greater \nweight  or  convincing  force.   Barre  v.  Hoffman,  2009  Ark.  373,  326  S.W.3d  415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n\nJOHNSON – H208936 \n \n5 \n The  evidence  shows  that  (1)  the  parties  were  provided  with  reasonable \nnotice  of  the  Motion  to  Dismiss  and  the  hearing  thereon,  and  (2)  Claimant  has \ntaken  no  action  in  pursuit  of  his  claim  since  the  filing  of  his  Form  AR-C  on \nDecember 28,  2022.    Thus,  the  evidence  preponderates  that  dismissal  is \nwarranted  under  Rule  13.  This  motion  is  hereby  granted  under  that  provision.  \nBecause  of  this  finding,  the  status  of  the  claim  under  § 11-9-702(a)(4)  is  moot \nand will not be addressed. \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. \nLEXIS  5  10,  Claim  No.  F404774  (Full  Commission  Opinion  filed  November  15, \n2005),  the  Commission  wrote:    “In  numerous  past  decisions,  this  Commission \nand  the  Appellate  Courts  have  expressed  a  preference  for  dismissals without \nprejudice.”  (Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v.  Strong, \n75 Ark. 249, 629 S.W.2d 284 (1982)).  At the hearing, Respondents requested a \ndismissal with prejudice.  But based on the foregoing, I find that the dismissal of \nthis 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\nJOHNSON – H208936 \n \n6 \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth \nabove, the Motion to Dismiss is hereby granted.  This claim is hereby dismissed \nwithout 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. H208936 RALPH JOHNSON, EMPLOYEE CLAIMANT THOMPSON CONSTR. GRP., INC. EMPLOYER RESPONDENT ZURICH AMER. INS. CO., CARRIER RESPONDENT OPINION FILED AUGUST 10, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on August 10, 2023, in Little Rock...","fetched_at":"2026-05-19T23:03:48.669Z","links":{"html":"/opinions/alj-H208936-2023-08-10","pdf":"https://labor.arkansas.gov/wp-content/uploads//Johnson_Ralph_H208936_20230810.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}