{"id":"alj-H300727-2024-07-08","awcc_number":"H300727","decision_date":"2024-07-08","opinion_type":"alj","claimant_name":"Lela Key","employer_name":null,"title":"KEY VS. KEDRION BIOPHARMA, INC.AWCC# H300727July 8, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":[],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Key_Lela_H300727_20240708.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Key_Lela_H300727_20240708.pdf","text_length":8804,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H300727 \n \n \nLELA KEY, EMPLOYEE CLAIMANT \n \nKEDRION BIOPHARMA, INC., \nEMPLOYER RESPONDENT \n \nBANKERS STD. INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED JULY 8, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on July 5,  2024, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Eric  Newkirk,  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 July 5,  2024,  in \nJonesboro,  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  were  Commission  Exhibit  1, correspondence  and United \nStates  Postal  Service  (“USPS”)  responses,  consisting  of three pages;  and \nRespondents’  Exhibit  1,  pleadings,  correspondence  and  forms  related  to  this \nclaim, consisting of 58 numbered pages. \n\nKEY – H300727 \n \n2 \n \n The record reflects the following procedural history: \n Per the First Report of Injury or Illness filed on February 2, 2023, Claimant \npurportedly suffered an injury to her left foot while walking to work on January 18, \n2023.    She  related  that she  stepped  in a pipe,  causing  her  to  twist  her  foot  and \nfall.  According to the Form AR-2 that was filed on February 2, 2023, Respondents \ncontroverted the  claim in  its  entirety,  claiming  that  the  Going  and  Coming  Rule \nmade the alleged injury not compensable. \n On March 15, 2023, through then-counsel Andy Caldwell, Claimant filed a \nForm  AR-C.    Therein,  he  alleged  that his client was  entitled  to  the  full  range  of \ninitial  benefits not  only as  a  result  of her alleged foot injury,  but  due  to  alleged \ninjuries to her right hand and “other body parts.”  A hearing request accompanied \nthis filing.  Respondents’ co-counsel entered his appearance on March 16, 2023; \nand in a letter to the Commission on March 24, 2023, he reiterated their position \nexpressed in the Form AR-2. \n The file was assigned to me on March 29, 2023.  On April 4, 2023, I issued \nprehearing questionnaires to the parties.  Claimant filed a timely response thereto \non  April  24,  2023,  and  Respondents  followed  suit  on  May  2,  2023.   Following  a \nprehearing  telephone  conference  on  June  19,  2023,  I  issued  a  prehearing  order \nthat scheduled a hearing for September 1, 2023, on the following issues: \n1. Whether Claimant sustained a compensable injury to her right hand \nand left foot by specific incident. \n\nKEY – H300727 \n \n3 \n \n2. Whether  Claimant  is  entitled  to  reasonable  and  necessary  medical \ntreatment. \n3. Whether Claimant is entitled to temporary total disability benefits. \n4. Whether Claimant is entitled to a controverted attorney’s fee. \nHowever, on August 17, 2023, Claimant requested that the hearing be cancelled \nand that the file be returned to the Commission’s general files.  In support of this \nrequest,  he  related  that  his  client  failed  to  appear  for  her  August  14,  2023, \ndeposition, and that he had been unable to reach her by phone.  The request was \ngranted. \n On October 6,  2023, Caldwell moved  to  withdraw  from  the  case.   His \nmotion includes the following allegation: \nThe   undersigned   has   lost   contact   with   the   Claimant.      The \nundersigned  has  sent  letters,  emails  and  attempted  to  contact  the \nClaimant at all known telephone numbers to no avail. \n \nIn an Order ended on October 24, 2023, the Full Commission granted the motion \nunder AWCC Advisory 2003-2. \n The record reflects that nothing further took place on the claim until March \n19, 2024.  On that date, Respondents filed the instant motion and brief in support \nthereof, asking  for dismissal  of  the  claim  under  AWCC  R. 099.13 and  Ark.  Code \nAnn. § 11-9-702  (Repl.  2012).    My  office  wrote  Claimant  on March  21,  2024, \nasking  for  a  response  to  the  motion  within  20  days.    The  letter  was  sent  by  first \nclass and certified mail to the Jonesboro address of Claimant listed in the file and \n\nKEY – H300727 \n \n4 \n \non her Form  AR-C.   The  certified  letter was  returned  to  the  Commission, \nunclaimed,   on   May   28,   2024; but the   first-class   letter   was   not   returned.  \nRegardless, no response from Claimant to the motion was forthcoming.  On May \n17, 2024, a hearing on the Motion to Dismiss was scheduled for July 5, 2024, at \n1:30 p.m.  at  the Craighead County  Courthouse  in Jonesboro.    The  notice  was \nsent  to  Claimant  via  first-class  and  certified mail  to the  same  address  as  before.  \nIn this instance, the United States Postal Service could not confirm that Claimant \nclaimed the certified letter; but the one sent by first-class mail was not returned to \nthe Commission. \n The  hearing  on the  Motion to  Dismiss proceeded  as  scheduled  on July 5, \n2024.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents \nappeared  through  counsel  and  argued  for  dismissal  under  the  aforementioned \nauthorities. \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 matter. \n\nKEY – H300727 \n \n5 \n \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 \nClaimant has failed to prosecute her claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  for  initial \nbenefits  is  hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \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\nKEY – H300727 \n \n6 \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 her claim because she has taken no further action \nin pursuit of it (including appearing at the July 5, 2024, hearing to argue against its \ndismissal) since the cancellation of the hearing on the claim on August 17, 2023.  \nThus,  the  evidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  \nBecause of this 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 Professional \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\nKEY – H300727 \n \n7 \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. H300727 LELA KEY, EMPLOYEE CLAIMANT KEDRION BIOPHARMA, INC., EMPLOYER RESPONDENT BANKERS STD. INS. CO., CARRIER RESPONDENT OPINION FILED JULY 8, 2024 Hearing before Administrative Law Judge O. Milton Fine II on July 5, 2024, in Jonesboro, Craighead County, Ar...","fetched_at":"2026-05-19T22:50:55.274Z","links":{"html":"/opinions/alj-H300727-2024-07-08","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Key_Lela_H300727_20240708.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}