{"id":"alj-H301032-2024-10-07","awcc_number":"H301032","decision_date":"2024-10-07","opinion_type":"alj","claimant_name":"Dewayne Walls","employer_name":"Marmaduke Sch. Dist","title":"WALLS VS. MARMADUKE SCH. DIST. AWCC# H301032 & H303323 October 07, 2024","outcome":"dismissed","outcome_keywords":["dismissed:7","granted:1"],"injury_keywords":["shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/WALLS_DEWAYNE_H301032_H303323_20241007.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WALLS_DEWAYNE_H301032_H303323_20241007.pdf","text_length":9991,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NOS. H301032 & H303323 \n \n \nDEWAYNE WALLS, EMPLOYEE CLAIMANT \n \nMARMADUKE SCH. DIST., \n SELF-INSURED EMPLOYER RESPONDENT \n \nARK. SCH. BDS. ASSN. \n THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED OCTOBER 7, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on October 4, 2024, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \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  October 4,  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  (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, reports, and correspondence related to this claim, consisting of \n27 and 16 pages, respectively. \n\nWALLS – H301032 & H303323 \n \n2 \n \n The record reflects the following procedural history: \n H301032.   Per  the  First  Report  of  Injury  or  Illness  filed on February  15, \n2023,  Claimant  purportedly suffered an injury to his left  foot at  work  on January \n27, 2023, when he was retrieving supplies from a storage room.  According to the \nForm AR-2 that was also filed on February 15, 2023, Respondents accepted the \nclaim and paid medical and indemnity benefits pursuant thereto. \n On May 23, 2023, through then-counsel Scott Hunter, Jr., Claimant filed a \nForm AR-C, requesting the full range of additional benefits in connection with an \ninjuries to his left foot that he allegedly suffered at work on January 26, 2023.  No \nhearing request accompanied this filing.  In a letter to the Commission dated May \n24, 2023, Respondents reiterated that they accepted the claim and have paid “all \nreasonable, necessary and authorized medical expenses and indemnity benefits” \nin connection with it. \n H303323.    Per  the  First  Report  of  Injury  or  Illness  filed  on  May 4,  2023, \nClaimant purportedly suffered an injury to his left shoulder at work on January 10, \n2023, when he reached for a door that was about to strike a student.  According to \nthe Form AR-2 that was filed on May 24, 2023, Respondents accepted the claim \nas a medical-only one and paid benefits pursuant thereto. \n On May 23, 2023, through then-counsel Hunter, Claimant filed a Form AR-\nC.  Therein, he alleged that he was entitled to the full range of additional benefits.  \nAs before, no hearing request accompanied this filing.  Respondents advised the \n\nWALLS – H301032 & H303323 \n \n3 \n \nCommission by letter on May 24, 2023, that they “have accepted this claim as \ncompensable,  and  all  reasonable,  necessary  and  authorized  medical  expenses \nand indemnity benefits have been paid.” \n The record reflects that nothing further took place on either claim until May \n1, 2024.  On that date, Respondents filed the instant motion, asking for dismissal \nof both claims under  AWCC  R.  099.13  and  Ark.  Code  Ann. § 11-9-702  (Repl. \n2012).    My  office wrote  Claimant and  his  counsel on May 2,  2024,  asking  for  a \nresponse  to  the  motion within  20  days.   The  letter to  Claimant was  sent  by  first \nclass and certified mail to the Marmaduke address for him listed in the files and on \nhis  Forms AR-C.   In  response  to  this,  Hunter  wrote  the  Commission  on  May  16, \n2024,  requesting  a  hearing  on  both  claims.    Based  on  this  request,  I  took  the \nMotion   to   Dismiss   under   advisement   and   issued   preliminary   notices   and \nprehearing  questionnaires  to  the  parties  on  May  17,  2024.    Claimant  filed  his \npreliminary notice on June 3, 2024—two days late; Respondents’ notice, filed on \nMay 20, 2024, was timely. \n On June 13, 2024, Hunter’s office emailed me to state that they “have \nfound  that  this matter no  longer  requires a hearing and  request  that this  file  [sic] \nbe  returned  to  general  files  to  allow  the  parties  to  evaluate  the  possibility  of  the \nresolution of the claim [sic] as a whole.”  Respondent’s co-counsel  added  the \nfollowing:  “Respondents have no objection to this.  If we can’t get it resolved I will \n\nWALLS – H301032 & H303323 \n \n4 \n \nrequest it be reassigned to your honor to address our MTD [Motion to Dismiss].”  \nBased on this, I returned the files to the Commission’s general files. \n On  June  21,  2024,  Hunter  moved  to  withdraw  from  his  representation  of \nClaimant  in  both  claims.    In  an  Order  entered  on  July  10,  2024,  the  Full \nCommission granted the motion under AWCC Advisory 2003-2. \n On  July  19,  2024,  Respondents’  co-counsel   wrote   the   Clerk   of   the \nCommission,  asking  that  the  above-captioned  files  be  reassigned  to  me  for  the \npurpose of adjudicating the Motion to Dismiss.  The file was reassigned to me on \nJuly  22,  2024;  and on  July  23, 2024,  I  wrote  Claimant,  requesting a  response  to \nthe motion within 20 days.  This letter was sent via first-class and certified mail to \nthe same address that was used before.  In this instance, Claimant signed for the \ncertified  mailing  on  July  26,  2024;  and  the  first-class  letter  was  not  returned.  \nHowever, no response from him was forthcoming. \n On August 28, 2024, a hearing on the Motion to Dismiss was scheduled for \nOctober 4, 2024, at 1:00 p.m. at the Craighead County Courthouse in Jonesboro.  \nThe  notice  was  sent  to  Claimant  via  first-class  and  certified  mail to  the  same \naddress as  before.   The certified  letter was  claimed  by Claimant on August  30, \n2024; and as was the case previously, the first-class letter was not returned to the \nCommission. \n The hearing on the Motion to Dismiss proceeded as scheduled on October \n4,  2024.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents \n\nWALLS – H301032 & H303323 \n \n5 \n \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. \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 \nhis two claims under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  these two claims for \nadditional  benefits are hereby  dismissed without  prejudice under \nAWCC R. 099.13. \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 \n\nWALLS – H301032 & H303323 \n \n6 \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 \nclaims—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 two claims because  he  has  taken  no  further \naction  in  pursuit  of them (including  appearing  at  the October  4,  2024, hearing  to \nargue   against their dismissal)   since the prehearing   process   on   them   was \ncancelled at his request, and the files were returned to the Commission’s general \nfiles, on June 14, 2023.  Thus, the evidence preponderates that dismissal of both \nis warranted under Rule 13.  Because of this finding, it is unnecessary to address \nthe application of Ark. Code Ann. § 11-9-702(d) (Repl. 2012). \n That leaves the question of whether the dismissal of the claims 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 \n\nWALLS – H301032 & H303323 \n \n7 \n \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  these claims 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,  these two claims for  additional  benefits are hereby  dismissed without \nprejudice. \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 NOS. H301032 & H303323 DEWAYNE WALLS, EMPLOYEE CLAIMANT MARMADUKE SCH. DIST., SELF-INSURED EMPLOYER RESPONDENT ARK. SCH. BDS. ASSN. THIRD-PARTY ADM’R RESPONDENT OPINION FILED OCTOBER 7, 2024 Hearing before Administrative Law Judge O. Milton Fine II on October 4, ...","fetched_at":"2026-05-19T22:47:28.794Z","links":{"html":"/opinions/alj-H301032-2024-10-07","pdf":"https://labor.arkansas.gov/wp-content/uploads/WALLS_DEWAYNE_H301032_H303323_20241007.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}