{"id":"alj-H300188-2023-10-12","awcc_number":"H300188","decision_date":"2023-10-12","opinion_type":"alj","claimant_name":"Jayne Phillips","employer_name":"Khkw Logistics LLC","title":"PHILLIPS VS. KHKW LOGISTICS LLC AWCC# H300188 OCTOBER 12, 2023","outcome":"dismissed","outcome_keywords":["dismissed:9","granted:1"],"injury_keywords":["neck","back","shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Phillips_Jayne_H300188_20231012.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Phillips_Jayne_H300188_20231012.pdf","text_length":7064,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H300188 \n \n \nJAYNE PHILLIPS, EMPLOYEE CLAIMANT \n \nKHKW LOGISTICS LLC, \n EMPLOYER RESPONDENT \n \nBRIDGEFIELD CASUALTY INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED OCTOBER 12, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on October  12, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not 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  a  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  October 12,  2023,  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.  \nWithout  objection,  the  Commission’s  file  on  the  claim  has  been  incorporated \nherein in its entirety by reference. \n The record reveals the following procedural history: \n Claimant,  through  then-counsel  Laura  Beth  York,  filed  a  Form  AR-C on \nJanuary  18,  2023,  asking  for  the  full  range  of  initial  and  additional  benefits  and \n\nPHILLIPS – H300188 \n2 \n \nalleging  that  Claimant  suffered  compensable  injuries  to  her  neck,  back,  left \nshoulder,  right  shoulder  and  other  whole  body on December  29,  2022.    Per  the \nForms AR-2  that  were  filed  on  January  10  and 26,  2023,  Respondents  initially \naccepted the claim as compensable before electing to controvert it in its entirety. \n On February 15, 2023, York moved to withdraw from the case.  In an order \nentered on February 28,  2023,  the  Full  Commission  granted  the  motion  under \nAWCC Advisory 2003-2. \n The  record  reflects  that  no  further  action  took  place  on  this  claim  until \nAugust 3, 2023, when Respondents filed the instant Motion to Dismiss.  Therein, \nthey argued that dismissal of the claim was warranted because “[n]o further efforts \nto  prosecute  the  claim  have  been  made”  since  the  filing  of  the  Form  AR-C.    On \nAugust  8,  2023,  my  office  wrote  Claimant,  asking  for  a  response  to  the  motion \nwithin 20  days.    This  certified  letter  was  claimed  by  someone  with  an  illegible \nsignature  on  August  11,  2023;  and  the  first-class  letter  containing  the  same \ncorrespondence,  sent  to  the  address  supplied  to  the  Commission  by  Claimant, \nwas  not  returned.    Nonetheless,  no  response  from  her  was  forthcoming.    On \nAugust  30,  2023,  a  hearing  on  Respondents’  motion  was  scheduled  for October \n12, 2023, at 9:30 a.m. at the Commission in Little Rock, Arkansas.  The Notice of \nHearing was sent to Claimant by certified and first-class mail to the same address \nas before.  In this instance, the United States Postal Service was unable to verify \nwhether  Claimant  had  claimed  the  certified  letter.    But  the  first-class  letter  was \n\nPHILLIPS – H300188 \n3 \n \nnever  returned.    Thus,  the  evidence  preponderates  that  the  notice  reached  its \nproper destination. \n The  hearing  proceeded  as  scheduled  on  October  12,  2023.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents  appeared through \ncounsel and argued for dismissal under AWCC R. 099.13. \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  over \nthis claim. \n2. The parties were provided reasonable notice of the  Motion to Dismiss and \nof the hearing thereon. \n3. Respondents  have  proven  by  a  preponderance  of  the  evidence  that \nClaimant has failed to prosecute her claim. \n4. Respondents  have  proven  by  a  preponderance  of  the  evidence  that  this \nclaim should be dismissed under AWCC R. 099.13. \n5. The Motion to Dismiss is hereby granted. \n6. This claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \n\nPHILLIPS – H300188 \n4 \n \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)(discussing, inter alia, Rule 13). \n Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must \nprove  by  a  preponderance  of  the  evidence  that  this  claim  should  be  dismissed.  \nThis  standard  means  the  evidence  having  greater  weight  or  convincing  force.  \nBarre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (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 her claim because he has taken no further action in \npursuit of it (including appearing at the October 12, 2023, hearing to argue against \nits  dismissal)  since  the  filing  of her  Form  AR-C  on  January  18,  2023.    Thus, \ndismissal  is  warranted  under  Rule  13.    Respondents  have  met  their  burden  of \nproof in this matter. \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 \n\nPHILLIPS – H300188 \n5 \n \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  requested  a  dismissal \nwithout prejudice.   Based on the  foregoing, I agree and  find that the dismissal of \nthis claim should be and hereby is entered without prejudice.\n1\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 \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. H300188 JAYNE PHILLIPS, EMPLOYEE CLAIMANT KHKW LOGISTICS LLC, EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INS. CO., CARRIER RESPONDENT OPINION FILED OCTOBER 12, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on October 12, 2023, in Little R...","fetched_at":"2026-05-19T23:01:36.961Z","links":{"html":"/opinions/alj-H300188-2023-10-12","pdf":"https://labor.arkansas.gov/wp-content/uploads/Phillips_Jayne_H300188_20231012.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}