{"id":"alj-H301098-2023-12-18","awcc_number":"H301098","decision_date":"2023-12-18","opinion_type":"alj","claimant_name":"Steven Carrick","employer_name":"Circle K Stores, Inc","title":"CARRICK VS. CIRCLE K STORES, INC. AWCC# H301098 DECEMBER 18, 2023","outcome":"dismissed","outcome_keywords":["dismissed:6","granted:1"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Carrick_Steven_H301098_20231218.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Carrick_Steven_H301098_20231218.pdf","text_length":6302,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301098 \n \n \nSTEVEN C. CARRICK, EMPLOYEE CLAIMANT \n \nCIRCLE K STORES, INC., \n EMPLOYER RESPONDENT \n \nINDEMN. INS. CO. OF NO. AMER., \n CARRIER RESPONDENT \n \n \nOPINION FILED DECEMBER 18, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on December 13, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Mr. Lee  J.  Muldrow,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  Respondents’  Motion  to \nDismiss.    In  addition  to  Claimant’s  testimony,  the  record  consists of  Commission \nExhibit  1,  the  October  9,  2023,  Order  by  Administrative  Law  Judge  Chandra \nBlack,  copies  of  electronic  correspondence,  the  Notice  of  Hearing,  and  proof  of \nservice  thereof,  consisting  of  ten  numbered  pages;  Claimant’s  Exhibit  1,  forms, \npleadings  and  correspondence,  consisting  of  11  pages;  Respondents’  Exhibit  1, \nthe  Order,  consisting  of  three  numbered  pages;  Respondents’  Exhibit  2,  their \nprehearing  questionnaire  response,  consisting  of  four  numbered  pages; and \n\nCARRICK – H301098 \n2 \n \nRespondents’ Exhibit 3, their August 22, 2023, letter to Judge Black, consisting of \ntwo numbered pages. \n In the above-referenced Order, Judge Black wrote: \nAccordingly,   the   Commission   grants   [R]espondents’   motion   to \ncompel.  Claimant is ordered to execute a HIPAA [Health Insurance \nPortability and Accountability Act]-compliant [release] prepared and \nprovided  by  [R]espondents.    Claimant  must  return  the  executed \nrelease  to  [R]espondents’  counsel  no  later  than October  23,  2023.  \nAny  failure  to  abide  by  this  [O]rder  may  subject  [C]laimant  to \nsanctions,  including  without  limitation  contempt  or  dismissal  of  his \nclaim. \n \n On  October 31,  2023,  Respondents  moved  for  dismissal  of  this  claim, \nbased  on  Claimant’s  alleged  failure  to  obey the above directive.    He  was  served \nwith the November 2, 2023, Notice of Hearing on November 3, 2023, via certified \nmail.  At the December 13, 2023, hearing, Claimant in his testimony admitted that \n(1) he received notice of the hearing; (2) despite his understanding that he was to \ncomply with the October 9, 2023, Order—specifically the language therein quoted \nabove—he has failed and refused to do so.  He compounded this non-compliance \nby again declining at the hearing to sign the release in question.  In so doing, he \nraised the same objections that Judge Black had already carefully considered and \nproperly rejected in her Order. \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  an  opportunity  to  hear \n\nCARRICK – H301098 \n3 \n \nthe testimony of Claimant, the following Findings of Fact and Conclusions of Law \nare hereby made in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the   Motion  to \nDismiss and of the hearing thereon. \n3. Claimant has failed to prosecute his claim. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n5. The claim is hereby dismissed without prejudice. \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)(discussing, inter alia, Rule 13). \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 \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\nCARRICK – H301098 \n4 \n \n The  evidence  adduced  at  the  hearing  shows  that  Claimant  without  good \ncause  has  repeatedly  knowingly  failed  and  refused  to  cooperate  during  the \ndiscovery  phase  of  this  matter  by  executing  a  HIPAA-compliant  medical  release \nas directed by Judge Black.  Thus, the preponderance of the evidence establishes \nthat  he  has  failed  to  prosecute  his  claim.    He  was  duly  warned  that  this  non-\ncompliance could result in dismissal of his claim; and indeed it should.  Dismissal \nis  clearly  warranted  here  under  Rule  13.  Respondents’  Motion  to  Dismiss  is \nhereby granted. \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).  In Abo v. Kawneer Co.,  2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629 S.W.2d 284 (1982)).  Based on the above authorities, I find that the dismissal \nof this claim should be and hereby is entered without prejudice.\n1\n \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\nCARRICK – H301098 \n5 \n \nCONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim 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. H301098 STEVEN C. CARRICK, EMPLOYEE CLAIMANT CIRCLE K STORES, INC., EMPLOYER RESPONDENT INDEMN. INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED DECEMBER 18, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on December 13, 2023, in ...","fetched_at":"2026-05-19T22:59:45.030Z","links":{"html":"/opinions/alj-H301098-2023-12-18","pdf":"https://labor.arkansas.gov/wp-content/uploads/Carrick_Steven_H301098_20231218.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}