{"id":"alj-H301255-2024-01-12","awcc_number":"H301255","decision_date":"2024-01-12","opinion_type":"alj","claimant_name":"Sharice Roddy","employer_name":"Core Mark Ami Artic East","title":"RODDY VS. CORE MARK AMI ARTIC EAST AWCC# H301255 JANUARY 12, 2024","outcome":"dismissed","outcome_keywords":["dismissed:7"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Roddy_Sharice_H301255_20240112.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Roddy_Sharice_H301255_20240112.pdf","text_length":6783,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301255 \n \n \nSHARICE RODDY, EMPLOYEE CLAIMANT \n \nCORE MARK AMI ARTIC EAST, \n EMPLOYER RESPONDENT \n \nINDEMNITY INS. CO. OF NO. AMER., \n CARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 12, 2024 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on \nJanuary 12, 2024, in Forrest City, St. Francis County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Rick  Behring,  Jr.,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  January  12,  2024,  in \nForrest  City,  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 without objection were the following:  Commission Exhibit \n1  and Respondents’ Exhibit 1,  forms,  pleadings,  and  correspondence  related  to \nthis claim, consisting of 17 and 27 pages, respectively. \n\nRODDY – H301255 \n2 \n \n The record reveals the following procedural history: \n The First Report of Injury or Illness, filed on February 23, 2023, reflects that \nClaimant  purportedly  suffered  an  injury  to  multiple  body  parts  on  May  26,  2022, \nfrom being pinned between a pallet jack and  a rack.  Per the Form AR-2 filed on \nMarch 14, 2023, Respondents accepted the claim and paid medical and indemnity \nbenefits pursuant thereto. \n On  April  4,  2023,  through  then-counsel  Laura  Beth  York,  Claimant  filed  a \nForm AR-C, alleging that she was entitled to the full range of initial and additional \nbenefits  concerning  her  alleged  injuries.    No  hearing  request  accompanied  this \nfiling.  Later, on August 2, 2023, York moved to withdraw from her representation \nof  Claimant.    In  an  Order  entered  on  August  25,  2023,  the  Full Commission \ngranted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  no  further  action  was  taken  on  the  case  until \nOctober  23,  2023,  when  Respondents  filed  the  instant  Motion  to  Dismiss  under \nArk. Code Ann. § 11-9-702 (Repl. 2012) and AWCC R. 099.13, along with a brief \nin support thereof.  On October 24, 2023, my office wrote Claimant, requesting a \nresponse  to  the  motion  within 20  days.    This  correspondence  was  sent  by  both \ncertified and first-class mail to the address for Claimant listed in the file and on her \nForm AR-C.  While the United States Postal Service was unable to verify whether \nClaimant   signed   for   the   certified   letter,   the   first-class   correspondence   was \nreturned with the notation “NOT DELIVERABLE AS ADDRESSED.”  Regardless, \nno response by Claimant to the motion was forthcoming. \n\nRODDY – H301255 \n3 \n \n On November 14, 2023, a hearing on Respondents’ motion was scheduled \nfor  January  12,  2024,  at 10:3 0  a.m.  at  the  St.  Francis  County  Courthouse  in \nForrest  City.    The  Notice  of  Hearing  was  sent  to  Claimant  by  certified  and  first-\nclass mail to the same address as before.  Again, it could not be verified whether \nClaimant signed for the certified letter.  But this time, the first-class letter was not \nreturned. \n The hearing proceeded as scheduled on January 12, 2024.  Claimant failed \nto appear at the hearing.  But Respondents appeared through counsel and argued \nfor dismissal under, inter alia, Rule 13. \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 claim. \n2. The  parties  were  provided  reasonable  notice  of  the   Motion  to \nDismiss and of the hearing thereon. \n3. Claimant has failed to prosecute her claim. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n5. The claim is hereby dismissed without prejudice. \n\nRODDY – H301255 \n4 \n \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 The  evidence  adduced  at  the  hearing  shows  that  Claimant  has  taken  no \naction  in  pursuit  of  her  claim  since  the  filing  of  her  Form  AR-C  on  April  4,  2023.  \nMoreover,  she  failed  to  appear  on  the  hearing  to  argue  against  dismissal  of  the \nclaim,  despite  the  evidence  showing  that  both  she  and  Respondents  were \nprovided  reasonable  notice  of  the  Motion  to Dismiss  and  of  the  hearing  thereon.  \nThus,  the  evidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  \nBecause of this finding, it is unnecessary to address the applicability of Ark. Code \nAnn. § 11-9-702(a)(4) (Repl. 2012). \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\nRODDY – H301255 \n5 \n \n(Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629  S.W.2d  284  (1982)).  Respondents  at  the  hearing  asked  for  a  dismissal \nwithout  prejudice.    Based  on  the  above  authorities, I  agree  and  find  that  the \ndismissal of this claim should be and hereby is entered without prejudice.\n1\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 \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. H301255 SHARICE RODDY, EMPLOYEE CLAIMANT CORE MARK AMI ARTIC EAST, EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED JANUARY 12, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on January 12, 2024, in F...","fetched_at":"2026-05-19T22:58:25.727Z","links":{"html":"/opinions/alj-H301255-2024-01-12","pdf":"https://labor.arkansas.gov/wp-content/uploads/Roddy_Sharice_H301255_20240112.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}