{"id":"alj-H302077-2024-04-09","awcc_number":"H302077","decision_date":"2024-04-09","opinion_type":"alj","claimant_name":"Christopher Brumley","employer_name":null,"title":"BRUMLEY VS. ARK. STEEL ASSOCS. LLCAWCC# H302077April 9, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":["neck","shoulder","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Brumley_Christopher_H302077_20240409.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Brumley_Christopher_H302077_20240409.pdf","text_length":7619,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H302077 \n \n \nCHRISTOPHER L. BRUMLEY, EMPLOYEE CLAIMANT \n \nARK. STEEL ASSOCS. LLC, \nEMPLOYER RESPONDENT \n \nTRAVELERS CASUALTY & SURETY CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED APRIL 9, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on April  5,  2024, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Guy  Alton  Wade,  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 April  5,  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 and Respondents’ Exhibit 1, \npleadings, correspondence and forms related to this claim, each consisting of 16 \npages. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness dated March  31,  2023,  Claimant \npurportedly suffered an injury to his neck at work on December 17, 2021, when a \n\nBRUMLEY – H302077 \n \n2 \n \nlow-hanging pipe caught his hard hat and jerked his head backwards.  According \nto the  Form  AR-2 that  was filed on March  31,  2023, Respondents denied the \nclaim in its entirety. \n Claimant  filed  a  Form  AR-C  on  or  about  March  27,  2023,  concerning  this \nalleged injury.  Then, on August 29, 2023, through then-counsel Laura Beth York, \nClaimant filed another Form AR-C.  Therein, he alleged that he was entitled to the \nfull range of initial and additional benefits as a result of alleged injuries to his neck, \nright shoulder, and “other whole body.”  No  hearing  request  accompanied  this \nfiling.  Respondents’ counsel entered his appearance by way of letter on April 24, \n2023; and on August 30, 2023, he informed the Commission that his clients were \nstill disputing that Claimant had suffered a compensable injury. \n On November 6, 2023, York moved to withdraw from the case.  In an Order \nentered  on December 1,  2023, the  Full  Commission granted  the  motion  under \nAWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nDecember 29, 2023.   On  that date, Respondents filed the  instant motion, asking \nfor  dismissal  of  the  claim—ostensibly under  AWCC  R.  099.13,  since  it  asserted \n“lack of prosecution” as the basis for dismissal.    My  office wrote  Claimant on \nJanuary  2, 2024,  asking  for  a  response  to  the motion within 20 days.   The  letter \nwas sent by first class and certified mail to the Newport address of Claimant listed \nin the file and his Forms AR-C.  Someone with an illegible signature claimed the \n\nBRUMLEY – H302077 \n \n3 \n \ncertified letter, and the first-class letter was not returned.  However, no response \nfrom Claimant to  the  motion was  forthcoming.   For  that  reason,  on January 24, \n2024,  a  hearing  on  the Motion to Dismiss was  scheduled for March  1,  2024, at \n10:30 p.m.  at  the Craighead County  Courthouse  in Jonesboro.   The  notice  was \nsent  to  Claimant  via  first-class  and  certified mail to the  same  address as  before.  \nThe  evidence  preponderates  that  the  notice  reached  Claimant.    On  February  1, \n2024, his fiancée contacted my office and stated that he was (as of that date) in \nthe Arkansas Department of Correction with a parole date of March 1, 2024.  For \nthat reason, I issued an amended Notice of Hearing on that date, rescheduling the \nhearing on the motion for April 5, 2024, at 10:30 a.m.  Yet again, the notice was \nsent to Claimant at the same address by certified and first-class mail.  But in this \ninstance, while the first-class letter was not returned, the certified letter came back \nto the Commission, unclaimed. \n The hearing on the Motion to Dismiss proceeded as scheduled on April 5, \n2024.    Again,  Claimant  failed  to  appear  at the  hearing.    But  Respondents \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 \n\nBRUMLEY – H302077 \n \n4 \n \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 claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim for  initial \nbenefits is hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \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 \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 \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \n\nBRUMLEY – H302077 \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 his claim because he has taken no further action in \npursuit of it (including appearing at the April 5, 2024, hearing to argue against its \ndismissal) since the filing of his amended Form AR-C on August 29, 2023.  Thus, \nthe evidence preponderates that dismissal is warranted under Rule 13. \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.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\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\nBRUMLEY – H302077 \n \n6 \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","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H302077 CHRISTOPHER L. BRUMLEY, EMPLOYEE CLAIMANT ARK. STEEL ASSOCS. LLC, EMPLOYER RESPONDENT TRAVELERS CASUALTY & SURETY CO., CARRIER RESPONDENT OPINION FILED APRIL 9, 2024 Hearing before Administrative Law Judge O. Milton Fine II on April 5, 2024, in Jonesb...","fetched_at":"2026-05-19T22:55:08.753Z","links":{"html":"/opinions/alj-H302077-2024-04-09","pdf":"https://labor.arkansas.gov/wp-content/uploads/Brumley_Christopher_H302077_20240409.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}