{"id":"alj-H301748-2024-01-26","awcc_number":"H301748","decision_date":"2024-01-26","opinion_type":"alj","claimant_name":"Melanie Brown","employer_name":null,"title":"BROWN VS. HINO MTRS. MFG. USA, INC.AWCC# H301748 JANUARY 26, 2024","outcome":"dismissed","outcome_keywords":["dismissed:7"],"injury_keywords":["knee","neck","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Brown_Melanie_H301748_20240126.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Brown_Melanie_H301748_20240126.pdf","text_length":6649,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301748 \n \n \nMELANIE BROWN, EMPLOYEE CLAIMANT \n \nHINO MTRS. MFG. USA, INC., \n EMPLOYER RESPONDENT \n \nFIRST LIBERTY INS. CORP., \n CARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 26, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on January 26, \n2024, in Marion, Crittenden County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Zachary F. Ryburn, 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 26,  2024,  in \nMarion, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.    Admitted  into \nevidence  without  objection  were  the  following:    Commission  Exhibit  1 and \nRespondents’  Exhibit  1,  forms,  pleadings,  and  correspondence  related  to  this \nclaim, consisting of 14 and 10 pages, respectively. \n\nBROWN – H 301748 \n2 \n \n The record reveals the following procedural history: \n The  First  Report  of  Injury  or  Illness,  filed  on  March  15,  2023,  reflects  that \nClaimant  purportedly  suffered an injury to her knee on March 5, 2023, when she \nfell down the stairs at her workplace.  Per the Forms AR-2 filed on March 17 and \n21,  2023,  Respondents  accepted  the  claim  and  paid  medical  and  indemnity \nbenefits pursuant thereto. \n On March 22, 2023, through then-counsel Laura Beth York,  Claimant filed \na  Form  AR-C,  alleging  that  she  was  entitled  to  the  full  range  of  initial  and \nadditional benefits for injuries to her knees, legs, neck, chest, face back, head and \n“other  whole  body.”  No  hearing  request  accompanied  this  filing.  Respondents \ninformed the Commission on March 27, 2023, that their position had not changed \nregarding  the  claim.    Later,  on  October  20,  2023,  York  moved  to  withdraw  from \nher  representation  of  Claimant.    In  an  Order  entered  on  November  3,  2023,  the \nFull Commission granted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  no  further  action  was  taken  on  the  case  until \nNovember  8,  2023,  when  Respondents  filed  the  instant  Motion  to  Dismiss, \ncontending that “[n]o hearing has been requested and no efforts to prosecute the \nclaim have been made in the past 6 months.”  On November 14, 2023, my office \nwrote  Claimant,  requesting  a  response  to  the  motion  within 20  days.    This \ncorrespondence  was  sent  by  both  certified and first-class mail  to the address for \nClaimant listed in the file and on her Form AR-C.  Claimant signed for the certified \nletter on November 28, 2023, and the first-class correspondence was not returned \n\nBROWN – H 301748 \n3 \n \nto  the  Commission.  However,  no  response  by  Claimant  to  the  motion  was \nforthcoming. \n On  December  6,  2023, a hearing on Respondents’ motion was scheduled \nfor  January 26,  2024,  at 10:3 0  a.m.  at  the  Crittenden  County  Courthouse  in \nMarion.    The  Notice  of  Hearing  was  sent  to  Claimant  by  certified  and  first-class \nmail  to  the  same  address  as  before.    In  this  instance,  it  could  not  be  verified \nwhether Claimant signed for the certified letter; but again, the first-class letter was \nnot returned. \n The hearing proceeded as scheduled on January 26, 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. \n\nBROWN – H 301748 \n4 \n \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 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 March 22, 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(d) (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).    The  Commission  and  the  Appellate  Courts have \nexpressed  a  preference  for  dismissals without  prejudice.   See Pr  ofessional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \n\nBROWN – H 301748 \n5 \n \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 \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. H301748 MELANIE BROWN, EMPLOYEE CLAIMANT HINO MTRS. MFG. USA, INC., EMPLOYER RESPONDENT FIRST LIBERTY INS. CORP., CARRIER RESPONDENT OPINION FILED JANUARY 26, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on January 26, 2024, in Marion,...","fetched_at":"2026-05-19T22:58:50.817Z","links":{"html":"/opinions/alj-H301748-2024-01-26","pdf":"https://labor.arkansas.gov/wp-content/uploads/Brown_Melanie_H301748_20240126.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}