{"id":"alj-H300913-2025-09-22","awcc_number":"H300913","decision_date":"2025-09-22","opinion_type":"alj","claimant_name":"Lakenya Young","employer_name":"City Of Osceola","title":"YOUNG VS. CITY OF OSCEOLA AWCC# H300913 September 22, 2025","outcome":"dismissed","outcome_keywords":["dismissed:5"],"injury_keywords":["ankle"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Young_Lakenya_H300913_20250922.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Young_Lakenya_H300913_20250922.pdf","text_length":8146,"full_text":"`BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H300913 \n \n \nLAKENYA D. YOUNG, EMPLOYEE CLAIMANT \n \nCITY OF OSCEOLA, \n SELF-INSURED EMPLOYER RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE, \n THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED SEPTEMBER 22, 2025 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on September  19, \n2025, in Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Ms. Mary K. Edwards, Attorney at Law, North Little \nRock, Arkansas. \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 September 19, 2025, 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 (see Ark.  Code  Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich  best  ascertains  the  rights  of  the  parties”) and  Respondents’  Exhibit  1, \nforms, pleadings,  and correspondence  related  to  this  claim,  consisting  of 22 and \n12 pages, respectively. \n\nYOUNG – H300913 \n \n2 \n \n The record shows the following procedural history: \n Per the First Report of Injury or Illness that was filed on February 10, 2023, \n2025,  Claimant  purportedly  suffered a fractured right  ankle at  work  on April  17, \n2024, when she slipped on ice and fell while reading water meters.  According to \nthe  Form  AR-2  that  was filed  on February  16,  2023, Respondents accepted  the \nclaim as compensable and paid medical and indemnity benefits pursuant thereto. \n On July 15,  2024, through  then-counsel  Mark  Peoples, Claimant  filed  a \nForm  AR-C.    Therein, she  requested  the  full  range  of  additional  benefits  in \nconnection    with    her    right    ankle    injury.     In    electronic    correspondence \naccompanying this  filing,  Peoples wrote:  “I  am  not  asking  for  a  hearing  at  this \ntime.”  In  response  to this,  Respondents  sent  a  letter to  the  Commission  on  July \n17, 2024, reiterating that they had accepted the claim. \n On July 16, 2024, Claimant through Peoples requested that she be granted \na  one-time  change  of  physician  to  Dr.  Michael  Haughey.   However,  this  request \nwas withdrawn on December 10, 2024. \n Peoples moved  to  withdraw  from  his  representation  of  Claimant  on  March \n27, 2025.  In an Order entered on April 30, 2025, the Full Commission granted the \nmotion pursuant to AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until June \n26, 2025.  On that date, Respondents’ counsel entered her appearance and filed \nthe  instant  motion,  asking  for  dismissal  of  the  claim because Claimant  has not \n\nYOUNG – H300913 \n \n3 \n \nmade a bona fide hearing request on the claim since its filing.  Also on June 26, \n2025,  my  office wrote  Claimant,  asking  for  a  response  to  the  motion within  20 \ndays.  The letter was sent by first class and certified mail to the Osceola address \nfor Claimant that was listed in the file and on her Form AR-C.  The certified letter \nwas returned to the Commission, unclaimed, on July 21, 2025; but the first-class \nletter was not returned.  Regardless, no response to the motion was forthcoming.  \nOn August  5,  2025,  a  hearing  on  the  Motion  to  Dismiss  was  scheduled  for \nSeptember  19,  2025,  at 1:00 p.m.  at  the  Craighead  County  Courthouse  in \nJonesboro.   The  certified  mailing  of  the Notice of  Hearing  to  Claimant was \nreturned to the Commission, unclaimed, on September 2, 2025; but the first-class \nmailing was not returned. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \ncounsel and argued for dismissal under both AWCC R. 099.13 (now codified at 11 \nC.A.R. § 25-110(d)) and Ark. Code Ann. § 11-9-702(d) (Repl. 2012). \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): \n\nYOUNG – H300913 \n \n4 \n \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. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nher claim under 11 C.A.R. § 25-110(d). \n4. The Motion  to Dismiss  is hereby  granted;  this claim is hereby \ndismissed without prejudice under 11 C.A.R. § 25-110(d). \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) (formerly 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).  In turn, Ark. Code Ann. § 11-9-702(d) (Repl. 2012) reads: \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim may,  upon  motion  and  after \nhearing,  if  necessary,  be  dismissed  without  prejudice  to  the  refiling \nof  the  claim  within  limitation  periods  specified  in  subsection  (b)  of \nthis section. \n \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 \n\nYOUNG – H300913 \n \n5 \n \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 her claim because she has taken no steps to pursue \nit  (including  appearing  at  the  September  19,  2025,  hearing to  argue  against  its \ndismissal) since the filing of her aborted change-of-physician request on July 16, \n2024.  Thus, the evidence preponderates that dismissal of the claim is warranted \nunder 11 C.A.R. § 25-110(d).  Because of this finding, the applicability of § 11-9-\n702(d) 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 \n\nYOUNG – H300913 \n \n6 \n \nthe  foregoing,  I agree  and find  that  the  dismissal  of  this  claim  should  be  and \nhereby 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 for initial 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).","preview":"`BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H300913 LAKENYA D. YOUNG, EMPLOYEE CLAIMANT CITY OF OSCEOLA, SELF-INSURED EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE, THIRD-PARTY ADM’R RESPONDENT OPINION FILED SEPTEMBER 22, 2025 Hearing before Administrative Law Judge O. Milton Fine II on September 19, ...","fetched_at":"2026-05-19T22:36:39.015Z","links":{"html":"/opinions/alj-H300913-2025-09-22","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Young_Lakenya_H300913_20250922.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}