{"id":"alj-H300512-2024-10-31","awcc_number":"H300512","decision_date":"2024-10-31","opinion_type":"alj","claimant_name":"Willie Jackson","employer_name":"Tyson Poultry, Inc","title":"JACKSON VS. TYSON POULTRY, INC. AWCC# H300512 October 31, 2024","outcome":"dismissed","outcome_keywords":["dismissed:5"],"injury_keywords":[],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Jackson_Willie_H300512_20241031.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Jackson_Willie_H300512_20241031.pdf","text_length":11474,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H300512 \n \n \nWILLIE L. JACKSON, EMPLOYEE CLAIMANT \n \nTYSON POULTRY, INC., \n SELF-INSURED EMPLOYER RESPONDENT \n \nTYNET CORP., \n THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED OCTOBER 31, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on October 31, \n2024, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr. Jeremy  Swearingen,  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 October 31, 2024, \nin Little Rock, Arkansas.  Claimant, who is pro se, failed to appear.  Respondents \nwere represented at the hearing by Mr. Jeremy Swearingen, Attorney at Law, of \nLittle  Rock,  Arkansas.   Admitted  into  evidence  was  Commission  Exhibit  1  (see \nArk.  Code  Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must “conduct the \nhearing . . . in a manner which best ascertains the rights of the parties”), forms, \npleadings,  reports,  and  correspondence  related  to  this  claim,  consisting  of 70 \npages. \n\nJACKSON – H300512 \n \n2 \n The evidence reflects that per the First Report of Injury or Illness filed on \nFebruary 2, 2023, Claimant  purportedly suffered multiple injuries to  his  face at \nwork on January 2, 2023, when he tripped and fell, hitting his head on a hopper.  \nAccording  to  the Form  AR-2  that  was filed on February  3,  2023, Respondents \naccepted the claim as a medical-only one. \n On January  25,  2023,  Claimant  filed  a  Form  AR-C,  requesting only \nmedical treatment.  In response thereto on February 1, 2023, Respondents sent \na letter to the Commission, stating that they had accepted Claimant’s nose and \nleft injuries as compensable. \n No  further  action  on the  claim  took  place  until August  14, 2023.   On  that \ndate,  Respondents filed  their  first Motion  to Dismiss.    Therein,  they  argued  that \ndismissal  was  warranted  under Ark.  Code  Ann. § 11-9-702(a)(4)\n1\n (Repl.  2012) \nand AWCC  R.  099.13  because Claimant “has made no bona fide request for a \nhearing  in  over  six  (6)  months  and  has  made  no  indication  of  any  intent  to \nprosecute the claim toward a resolution.”  The file was assigned to me on August \n15,  2023;  and  on  August  16,  2023,  my  office  wrote  Claimant,  requesting  a \nresponse  to  the  motion  within  20  days.    The  letter  was  sent  to  the  address  for \nClaimant that he had placed on his Form AR-C.  He claimed the certified letter on \nAugust  18,  2023;  and the  first-class mailing was  not  returned.    Nonetheless, no \nresponse  to  the  Motion  to  Dismiss  was  forthcoming.   On  September  6,  2023,  a \n \n \n1\nBecause this is an accepted claim, the applicable provision is instead  \n§ 11-9-702(d). \n\nJACKSON – H300512 \n \n3 \nhearing on the motion was scheduled for October 12, 2023, at the Commission in \nLittle  Rock.    The  Notice  of  Hearing  was  sent  to  Claimant  by  certified  and  first-\nclass mail to the same address as before.  Once again, he signed for the certified \nmailing—on September 9, 2023—and the first-class letter was not returned. \n On October  12,  2023,  just  prior  to  the  commencement  of the  hearing, \nClaimant appeared, objected to dismissal, and requested a hearing on his claim.  \nBased on this, Respondents withdrew their motion.  I retained the file and issued \nprehearing  questionnaires  to  the  parties that  same  day.  Claimant filed  his \nresponse  to  the  Preliminary  Notice  on  October  26,  2023,  representing  that  the \namount in dispute was $2,500.00 or less.  Based on this, I had the file transferred \nto the Legal Advisor Division to conduct a mediation.  However, the mediation did \nnot take place because Claimant informed the Legal Advisor Division that he was \nno  longer  sure  that  the  amount  in  dispute  was  at  or  below  the $2,500.00 \nthreshold.   For  that  reason,  on  March  11,  2024,  the  file  was  returned  to  the \nCommission’s general files. \n On  March  8,  2024,  Respondents  filed  their  second  Motion  to  Dismiss.  \nTherein, they contended that despite their efforts to discover from Claimant what \nmedical benefits were at issue in this matter, he had not been forthcoming.  The \nfile was reassigned to me on March 12, 2024; and the next day my office wrote \nClaimant,  asking  that  he  respond  to  the  motion  within  20  days.   In  a  certified \nletter sent to the Commission on March 27, 2024, and received on April 3, 2024, \nClaimant responded, writing: \n\nJACKSON – H300512 \n \n4 \nDear Mrs. Catherine Ferguson, \n \nI Willie Jackson, [am] requesting a hearing. \n \nSincerely, /s/ Willie Jackson \n \n The   second   Motion   to   Dismiss   was   held   in   abeyance,   and   new \nquestionnaires  were  issued  to  the  parties  on  April  3,  2024.    Respondents’ \ncounsel—as  he  has done  in  the  past—reached  out  to  Claimant  by  email, \nrequesting  that  he  contact  him  by  phone.    Claimant  filed  a  timely  prehearing \nquestionnaire  response  on  April  17,  2024;  and  Respondents  followed  suit  on \nApril  30,  2024.  On  May  9,  2024,  a  prehearing  conference  was  scheduled  for \nJune  17,  2024.    However,  Claimant  sent  an  email  on  June  3,  2024,  indicating \nthat  he  wanted  to  obtain  counsel.    Based  on  this,  I  postponed  the  conference \nuntil August 19, 2024. \n The prehearing conference took place as scheduled on August 19, 2024.  \nClaimant  was pro  se.    A  hearing  was  scheduled  for  December  5,  2024,  at  9:30 \na.m.  at  the  Commission  in  Little  Rock  to  litigate  the  following  issue:  “Whether \nClaimant is entitled to additional treatment of his stipulated compensable injury [a \nlaceration about his left eye].” \n On   September   20,   2024,   Respondents   informed   me   by   email   that \nClaimant had not responded to their discovery requests.  I emailed Claimant that \nsame day, utilizing the same email thread, stating: \nMr. Jackson, you are expected to cooperate with Mr. Swearingen in \ngetting him the discovery that he is seeking from you.  If you fail to \ndo  this,  I  fully  expect  him  either  to  ask  me  to  order  you  to  do  this, \n\nJACKSON – H300512 \n \n5 \nand/or to dismiss your claim for your failure to prosecute it.  Please \ncontact my office with any questions. \n \n Respondents  emailed  my  office  on  September  26,  2024,  detailing  their \nfruitless efforts to get Claimant to respond.  Based on this, I informed the parties \nthat I would be scheduling a hearing on the second Motion to Dismiss.  However, \nthe December 5, 2024, hearing was kept on the calendar. \n That   same   day,   Respondents   filed   their   third   Motion   to   Dismiss, \ncontending   that   Claimant   had   not   provided   them   with   responses   to   their \ndiscovery requests  and  had  ignored  communications  from  them.   Also  on \nSeptember 26, 2024, I scheduled a hearing on the motion for October 31, 2024, \nat 9:30 a.m. at the Commission in Little Rock.  As was done previously, Claimant \nwas  sent  this  notice  by  first-class  and  certified  mail.    He  signed  for  the  certified \nmailing on October 2, 2024; and the first-class mailing was not returned. \n The  hearing  on  the third Motion  to Dismiss proceeded  as scheduled on \nOctober  31,  2024.   Again, Claimant failed  to appear.    Respondents  appeared \nthrough counsel and argued for dismissal of the action under the aforementioned \nauthorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  I  hereby  make  the  following \nFindings  of Fact  and Conclusions  of Law  in  accordance  with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n\nJACKSON – H300512 \n \n6 \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. All  parties  received  notice  of  the third Motion  to  Dismiss  and  the \nOctober 31, 2024, hearing thereon pursuant to AWCC R. 099.13. \n3. Respondents have proven by a preponderance of the evidence that \nClaimant has failed to prosecute his claim under AWCC R. 099.13. \n4. Respondents’ third Motion  to  Dismiss  should  be,  and  hereby  is, \ngranted. \n5. This claim for  additional  benefits is  hereby  dismissed without \nprejudice. \n6. The   December   5,   2024,   full   hearing   on   this   claim   is  hereby \ncancelled. \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) \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 this \nclaim–by a  preponderance  of  the evidence.   This  standard  means  the  evidence \n\nJACKSON – H300512 \n \n7 \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 third Motion to Dismiss and of the hearing thereon; and \n(2) Claimant has failed to pursue his claim because he has repeatedly refused to \nrespond to discovery, despite my explicit instructions for him to do so and despite \nRespondents’ efforts to get him to cooperate.    Moreover,  he  failed  to appear at \nthe  hearing  on October  31,  2024.    Thus,  the  evidence  preponderates  that \ndismissal is warranted under Rule 13.  Because of this finding, the application of \nArk. Code Ann. § 11-9-702 (Repl. 2012) is moot and 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).    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.  Based  on \nthe  foregoing, I concur  and find  that  the  dismissal  of  this  claim  should  be  and \nhereby is entered without prejudice.\n2\n \n \n \n2\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\nJACKSON – H300512 \n \n8 \n Because  of  the  above  finding,  the  full  hearing  on  this  claim,  currently \nscheduled  for  December  5,  2024,  has  been  rendered  moot  and  is  hereby \ncancelled. \nIV.  CONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth \nabove, this claim for additional benefits is hereby dismissed without 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. H300512 WILLIE L. JACKSON, EMPLOYEE CLAIMANT TYSON POULTRY, INC., SELF-INSURED EMPLOYER RESPONDENT TYNET CORP., THIRD-PARTY ADM’R RESPONDENT OPINION FILED OCTOBER 31, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on October 31, 2024, in...","fetched_at":"2026-05-19T22:48:25.547Z","links":{"html":"/opinions/alj-H300512-2024-10-31","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Jackson_Willie_H300512_20241031.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}