{"id":"alj-H300194-2024-08-22","awcc_number":"H300194","decision_date":"2024-08-22","opinion_type":"alj","claimant_name":"Tammy Craig","employer_name":"Hino Motors Mfg. USA, Inc","title":"CRAIG VS. HINO MOTORS MFG. USA, INC. AWCC# H300194 August 22, 2024","outcome":"dismissed","outcome_keywords":["dismissed:7"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Craig_Tammy_H300194_20240822.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Craig_Tammy_H300194_20240822.pdf","text_length":10053,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H300194 \n \n \nTAMMY T. CRAIG, EMPLOYEE CLAIMANT \n \nHINO MOTORS MFG. USA, INC., \nEMPLOYER RESPONDENT NO. 1 \n \nFIRST LIBERTY INS. CORP., \nCARRIER RESPONDENT NO. 1 \n \nARROW WORKFORCE SOLUTIONS, \nUNINSURED EMPLOYER RESPONDENT NO. 2 \n \n \n \nOPINION FILED AUGUST 22, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on August 22, 2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents No. 1 represented by Mr. Zachary F. Ryburn, Attorney at Law, Little \nRock, Arkansas. \n \nRespondent No.  2, represented  by  Mr. R.  Scott  Zuerker,  Attorney  at  Law, Fort \nSmith, Arkansas, not appearing. \n \n \nI.  BACKGROUND \n This    matter    comes    before    the Arkansas  Workers’  Compensation \nCommission (the “Commission”) on a Motion to Dismiss by Respondents No. 1.  A \nhearing  on  the  motion  was  conducted  on August  22,  2024, in Little  Rock, \nArkansas.  No testimony was taken in the case.  Claimant failed to appear at the \nhearing; she  notified  the  Commission  that  she  was  waiving  her appearance see \ninfra).  Admitted  into  evidence  were  Commission  Exhibit  1  and Respondents’ \n\nCRAIG – H300194 \n \n2 \n \n \nExhibit 1—forms, pleadings and correspondence related to the claim—consisting \nof 42 pages and one page, respectively. \n The evidentiary record reflects the following procedural history: \n Per  the Form  AR-C filed on January 10,  2023,  Claimant allegedly injured \nherself at  work  on  July 11,  2022,  when she slipped  and  fell  while  loading  the \ncarrier  cases  machine  at  Respondent  Hino.   Counsel  for  Respondent  No.  1 \nentered  his  appearance  on  January  16,  2023.   According  to the  Form  AR-2 that \nwas filed on January 24, 2023, Respondents No. 1 controverted the claim on the \nground  that  Claimant  was  not  employed  by  Respondent  Hino.  Thereafter,  on \nFebruary  21,  2023,  Claimant  failed another  Form  AR-C,  this  time  naming  the \nemployer  as  Canadian  Executive  Search  Group/Arrow  Workforce  Solutions—\nRespondent No. 2—which was uninsured for workers’ compensation purposes as \nof the alleged date of injury. \n The  file  was  assigned  to  the  Legal  Advisor  Division of  the  Commission.  \nHowever, because   attempts   to   set   up   a   mediation   conference   had   failed \n(apparently between Claimant and Respondent No. 2), the file was returned to the \nClerk of the Commission on May 15, 2023.  The file was reassigned to my office \non  May  16,  2023.    Because  of  the  uncertainly  surrounding  who  the  named \nrespondents should be, prehearing questionnaires were not issued to the parties \nuntil  June  14,  2023.    When  this  occurred,  they  went  to  Claimant  and  to \n\nCRAIG – H300194 \n \n3 \n \n \nRespondent  No.  2  only.   Claimant  filed  a  timely  response  thereto  on  June  23, \n2023. \n When  no  response  by  Respondent  No.  2  was  forthcoming,  my  office \ncontacted counsel for Respondents No. 1.  He explained that his clients were not \nthe   proper   party   to   the   claim   because   Claimant   was   actually   working   for \nRespondent No. 2.  Counsel for Respondents No. 1 followed up on this by moving \nfor dismissal of his clients from this claim on August 1, 2023.  I took no action on \nthe motion.    Instead,  I  notified  counsel  for  Respondents  No. 1  that  because  of a \npotential  dual  employment  issue  in  the  matter,  I  was  sending  them  a  prehearing \nquestionnaire  as  well.    They  filed  a  timely  response  thereto  on  September  7, \n2023.    On  September  20,  2023,  I  wrote  Respondent  No.  2,  giving  them  until \nOctober  11,  2023,  to  file  a  prehearing  questionnaire  response  to  avoid  being \npenalized.  On October 10, 2023, counsel for Respondent No. 2 made his entry of \nappearance.   The  next  day,  he  filed  a  prehearing  questionnaire  response  by  the \nabove deadline. \n At the request of all the parties, on October 11, 2023, I asked that the file \nbe  reassigned  to  the  Legal  Advisor  Division  to  conduct  a  mediation.   The \nmediation  eventually  took  place  on  July  9,  2024.    Unfortunately,  the  matter  was \nnot  resolved  as  a  result  of  that  mediation.    The  next  day,  the  Legal  Advisor \nDivision asked that the file be reassigned back to my office.  This occurred on July \n11, 2024. \n\nCRAIG – H300194 \n \n4 \n \n \n On July 10, 2024, counsel for Respondents No. 1 filed what was termed a \n“Renewed Motion to Dismiss.”  Therein, he alleged that Claimant agreed with his \nclients  that  there  was  no  employment  relationship  between  her  and  Respondent \nHino Motors.  On July 16, 2024, my office wrote Claimant, requesting a response \nto the motion within 20 days.  The letter was sent to her by certified and first-class \nmail  at  the  address  for  her  listed  in  the  file  and  on  her  Forms  AR-C.    Claimant \nsigned  for  the certified  letter  on  July  22,  2024;  and  the  first-class  letter  was  not \nreturned.    Claimant  telephoned  my  office  to  state  that  she  had  no  objection  to \nRespondents  No.  1  being  dismissed  from  the  claim;  and  she  restated  this  in  an \nemail on August 13, 2024. \n The next day, Claimant emailed my office to state that she was waiving her \nappearance  at  the  hearing  on  the  Motion  to  Dismiss.    Because  of  this  waiver,  I \nissued a Notice of Hearing on August 14, 2024, which scheduled a hearing on the \nMotion  to  Dismiss  for August  22,  2024,  at  9:30  a.m.  at  the  Commission  in  Little \nRock.  This was sent to Claimant not only by first-class and certified mail, but was \nemailed to her as well.  To date, the notice has not been returned. \n The  hearing  on  the motion  proceeded  as  scheduled  on August  22,  2024.  \nAgain, Claimant did  not  appear.  Counsel  for  Respondent  No.  2  waived  his \nappearance  as  well.   But Respondents No.  1 appeared  through  counsel  and \nargued for dismissal under, inter alia, AWCC R. 099.13. \n\nCRAIG – H300194 \n \n5 \n \n \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 claim. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim against Respondents No. 1 under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim—i.e.,  the \nJanuary   10,   2023,   Form   AR-C—is hereby   dismissed without \nprejudice against Respondents No. 1 under AWCC R. 099.13. \n5. The February 21, 2023, Form AR-C, which names Respondent No. \n2 as the respondent employer, remains in full force and effect. \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 \n\nCRAIG – H300194 \n \n6 \n \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 No.  1 under  Ark.  Code  Ann.  §  11-9-\n705(a)(3)  (Repl.  2012)  must  prove  their  entitlement  to  the  relief  requested–\ndismissal of this claim–by a preponderance of the evidence.  This standard means \nthe  evidence  having  greater  weight  or  convincing  force.  Barre  v. Hoffman,  2009 \nArk.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491, \n206 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  the  claim (i.e.,  the  January  10,  2023,  Form  AR-C) \nbecause she has  taken  no  further  action  in  pursuit  of  it—including  appearing  at \nthe August 22, 2024, hearing on the Motion to Dismiss—since its reassignment to \nme  after  the  unsuccessful  mediation.    Moreover,  she  has  clearly  indicated  that \nshe  has no  intention  of  pursuing  it  further  by  (1) communicating  that  she did  not \nobject to dismissal of it, and (2) waiving her opportunity to appear at the hearing \non the Motion to Dismiss in order to oppose it.  Thus, the evidence preponderates \nthat  dismissal of  this  particular  claim and  Respondents  No. 1 is  warranted  under \nRule 13. \n That leaves the question of whether the dismissal should be with or without \nprejudice.    The  Commission  possesses  the  authority  to  dismiss  claims  with \n\nCRAIG – H300194 \n \n7 \n \n \nprejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App.  137,  744 \nS.W.2d 402 (1988).  The Commission and the Appellate Courts have expressed a \npreference for dismissals without prejudice.  See Professional Adjustment Bureau \nv.  Strong,  75  Ark.  249,  629  S.W.2d  284  (1982)).  Respondents No.  1 at  the \nhearing  asked  for  a  dismissal  without prejudice.    I agree  and  find  that  the \ndismissal of this claim should be and hereby is entered without prejudice. \n The  February  21,  2023,  Form  AR-C,  on  the  other  hand—which  names \nRespondent No. 2 as the respondent employer—remains in full force and effect. \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim—to-wit, the January 10, 2023, Form AR-C—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. H300194 TAMMY T. CRAIG, EMPLOYEE CLAIMANT HINO MOTORS MFG. USA, INC., EMPLOYER RESPONDENT NO. 1 FIRST LIBERTY INS. CORP., CARRIER RESPONDENT NO. 1 ARROW WORKFORCE SOLUTIONS, UNINSURED EMPLOYER RESPONDENT NO. 2 OPINION FILED AUGUST 22, 2024 Hearing before Admi...","fetched_at":"2026-05-19T22:50:23.745Z","links":{"html":"/opinions/alj-H300194-2024-08-22","pdf":"https://labor.arkansas.gov/wp-content/uploads/Craig_Tammy_H300194_20240822.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}