{"id":"alj-H300871-2024-08-01","awcc_number":"H300871","decision_date":"2024-08-01","opinion_type":"alj","claimant_name":"John Cannon","employer_name":null,"title":"CANNON VS. LITTLE ROCK SCH. DIST.AWCC# H300871August 1, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Cannon_John_H300871_20240801.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Cannon_John_H300871_20240801.pdf","text_length":9089,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H300871 \n \n \nJOHN E. CANNON, EMPLOYEE CLAIMANT \n \nLITTLE ROCK SCH. DIST., \nSELF-INSURED EMPLOYER RESPONDENT \n \nARK. SCH. BDS. ASSN., \nTHIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED AUGUST 1, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on August 1, 2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se. \n \nRespondents represented  by  Mr. Jarrod  S.  Parrish,  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 August  1,  2024, in \nLittle Rock, Arkansas.  Claimant, who is pro se, appeared at the hearing and gave \ntestimony.  Admitted into evidence were Commission Exhibit 1 and Respondents’ \nExhibit 1, pleadings, correspondence and forms related to this claim, consisting of \n31 pages and one index page/nine numbered pages thereafter, respectively. \n The record reflects the following procedural history: \n Per the First Report of Injury or Illness filed on February 8, 2023, Claimant \npurportedly suffered an injury to his  lower  back at  work  on January  24,  2023, \nwhen he slipped  and  fell  on  a  freshly-mopped  bathroom  floor.  According  to the \n\nCANNON – H300871 \n \n2 \n \ninitial  and  amended Forms AR-2 that  were filed on February  10  and  13,  2023, \nRespondents accepted the   claim and paid indemnity   and  medical benefits \npursuant thereto. \n Through  then-counsel  Gregory  R.  Giles, Claimant filed  a  Form  AR-C on \nApril 20, 2023.  Therein, he alleged that he was entitled to the full range of initial \nand additional benefits as a result of the alleged lower back injury.  Accompanying \nthis filing was a letter from Claimant’s counsel to the Commission, requesting that \nhis  client  be  awarded  temporary  total  disability  benefits  from April  7,  2023,  to  a \ndate  yet  to  be  determined.    Respondents  responded  to  this  correspondence  on \nApril  21,  2023,  reiterating  that  they  had  accepted  the  claim  and  were  paying \nindemnity as well as medical benefits thereon. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nFebruary  7,  2024.    On  that  date,  Respondents  filed  their  first Motion to  Dismiss, \nasking  for  dismissal  of  the  claim  under  AWCC  R.  099.13  and  Ark.  Code  Ann.       \n§ 11-9-702 (Repl. 2012) due to Claimant’s alleged failure to seek “any type of \nbona fide hearing before the Workers’ Compensation Commission over the last \nsix months.”  My office wrote Claimant’s counsel on February 9, 2024, asking for a \nresponse to the motion within 20 days.  He responded via letter on February 14, \n2024,  objecting  to  dismissal  and  requesting  a  hearing.    I  elected  to  take  the \nmotion under advisement, and issued prehearing questionnaires to the parties on \nFebruary  16,  2024.    However,  they informed  my  office  that  they  were  willing  to \n\nCANNON – H300871 \n \n3 \n \nmediate.    For  that  reason,  on February  27,  2024,  the  file  was  transferred  to  the \nLegal Advisor Division.  It was assigned to a legal advisor on February 29, 2024.  \nAfter Respondents’ co-counsel inquired as to the status of the mediation on April \n4, 2024, a Notice of Mediation Conference was issued the next day, setting it for \nApril  30,  2024.  But  on  April  17,  2024,  Claimant’s  counsel  emailed  the  legal \nadvisor,  indicating  that  the  mediation  was  no  longer  needed,  and that the  file \ncould be returned to the Commission’s general files.  This was granted. \n On April  26,  2024, Giles moved  to  withdraw  from his  representation  of \nClaimant.  In an order entered on May 14, 2024, the Full Commission granted the \nmotion under AWCC Advisory 2003-2. \n On May  31,  2024, Respondents filed  the  instant  motion, again asking  for \ndismissal  of  the  claim under  AWCC  R.  099.13  and  Ark.  Code  Ann. § 11-9-702 \n(Repl.  2012) on  the  same  basis  as  stated  in  initial  motion.    My  office wrote \nClaimant on June 5,  2024,  asking  for  a  response  to  the  motion within  20  days.  \nThe  letter  was  sent  by  first  class and  certified mail  to the Little  Rock address of \nClaimant listed  in  the  file and on his  Form  AR-C.   Claimant failed  to claim the \ncertified letter, and it was returned to the Commission, undelivered, on August 1, \n2024;  but the first-class  letter  was not  returned to  the  Commission.   Regardless, \nno response from Claimant to the motion was forthcoming.  On June 27, 2024, a \nhearing on the Motion to Dismiss was scheduled for August 1, 2024, at 9:30 a.m. \nat the Commission in Little Rock.  The notice was sent to Claimant via first-class \n\nCANNON – H300871 \n \n4 \n \nand  certified  mail to  the  same  address as  before.   In  this  instance, Claimant \nsigned  for the  certified  letter on  July  1,  2024;  and the first-class  letter was not \nreturned. \n The hearing on the Motion to Dismiss proceeded as scheduled on August \n1, 2024.  Respondents appeared through counsel and argued for dismissal under \nthe aforementioned authorities.  Claimant likewise appeared.  He testified that he \ndoes  not feel that it is “worth it” to continue with his claim, and that he does not \nobject  to  dismissal  of it.   In  so doing, he  stated  that  he  was  aware that  if  it  were \ndismissed  without  prejudice,  he  could  re-file  it,  provided  that  the  statute  of \nlimitations did not operate as a bar. \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, and having had the opportunity to hear \nthe  testimony  of  Claimant  and  determine  his  credibility, the  following Findings  of \nFact and Conclusions of Law are hereby made in accordance with Ark. Code Ann. \n§ 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n\nCANNON – H300871 \n \n5 \n \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim for additional \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 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 his claim because (a) he has taken no further action \n\nCANNON – H300871 \n \n6 \n \nin pursuit of it since the filing of his Form AR-C on April 20, 2023, and (b) he does \nnot  intend  to  pursue  it  any  further.   Thus,  the  evidence  preponderates  that \ndismissal is warranted under Rule 13.  Because of this finding, it is unnecessary \nto 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 additional benefits 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).  \nSee supra.","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H300871 JOHN E. CANNON, EMPLOYEE CLAIMANT LITTLE ROCK SCH. DIST., SELF-INSURED EMPLOYER RESPONDENT ARK. SCH. BDS. ASSN., THIRD-PARTY ADM’R RESPONDENT OPINION FILED AUGUST 1, 2024 Hearing before Administrative Law Judge O. Milton Fine II on August 1, 2024, in ...","fetched_at":"2026-05-19T22:49:41.478Z","links":{"html":"/opinions/alj-H300871-2024-08-01","pdf":"https://labor.arkansas.gov/wp-content/uploads/Cannon_John_H300871_20240801.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}