{"id":"alj-H302088-2024-05-03","awcc_number":"H302088","decision_date":"2024-05-03","opinion_type":"alj","claimant_name":"David Fulk","employer_name":"Shearers Foods LLC","title":"FULK VS. SHEARERS FOODS LLC AWCC# H302088 May 3, 2024","outcome":"dismissed","outcome_keywords":["dismissed:7"],"injury_keywords":[],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Fulk_David_H302088_20240503.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Fulk_David_H302088_20240503.pdf","text_length":7154,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H302088 \n \n \nDAVID M. FULK, EMPLOYEE CLAIMANT \n \nSHEARERS FOODS LLC, \nEMPLOYER RESPONDENT \n \nTRAVELERS INDEMN. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED MAY 3, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  May  3,  2024,  in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Ms. Amy C. Markham, 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 May 3,  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  without  objection  was Commission  Exhibit  1,  forms, \npleadings, and correspondence related to this claim, consisting of 25 pages. \n The record reveals the following procedural history: \n The  First  Report  of  Injury  or  Illness,  filed  on March  31,  2023,  reflects that \nClaimant purportedly suffered an injury to his skull as a result of a fall at work on \n\nFULK – H302088 \n2 \n \nFebruary  3,  2023.   Per  the  Form  AR-2  filed  on March  31,  2023,  Respondents \ncontroverted the claim in its entirety. \n On March  29,  2023,  Claimant  filed  a  Form  AR-C,  alleging  that  he  was \nentitled  to  initial and  additional benefits for his  alleged  work-related injuries.  He \nelaborated that his fall at work was due to a seizure, and that although “the cause \nof  the  seizure  is  unknown,  [it]  could  have  been  cause[d]  by  chemicals  in  the \nplant.”  After  an  attempt  to  set  up  a  Legal  Advisor  conference  with  the  parties \nfailed, the file was assigned to me on June 29, 2023, to conduct a hearing on the \nmerits of the claim.  Prehearing questionnaires were issued to the parties on July \n13, 2023.  However, Claimant’s questionnaire was returned because the address \nto  which  it  was  sent  was  incorrect  (despite the  fact that  it was  the  address  he \nlisted  on  his  Form  AR-C).   The  questionnaire  was  re-sent  to  the  new  address \nsupplied  by  him.   Respondents’ counsel entered  her  appearance  on  August  10, \n2023,  and confirmed  that her clients  were still controverting  the  claim  in  its \nentirety.  While  Respondents  filed  a  timely  response  to  the  questionnaire  on \nAugust 17 and September 27, 2023, Claimant failed to do so, despite being given \nan extension until August 14, 2023.  For that reason, the file was returned to the \nCommission’s general files on September 28, 2023. \n The  record  reflects  that  no  further  action  was  taken  on  the  case  until \nFebruary 15,  2024,  when  Respondents  filed  the  instant Motion  to Dismiss, \ncontending that “[t]here  has  been  no  bona  fide  request  for  a  hearing  within  the \npast six months.”  On February 21, 2024, my office wrote Claimant, requesting a \n\nFULK – H302088 \n3 \n \nresponse  to  the  motion  within 20 days.   This  correspondence  was  sent  by  both \ncertified  and  first-class  mail to  the Jonesboro address  for  Claimant that  he \nsupplied  to  my  office.   The  certified  letter was  returned  to  the  Commission, \nundelivered, on March 29,  2024;  but the  first-class  correspondence  was not \nreturned to  the  Commission.  However,  no  response  by  Claimant  to  the  motion \nwas forthcoming. \n On March 14, 2024, a hearing on Respondents’ motion was scheduled for \nMay 3,  2024, at 10:30 a.m.  at  the Craighead  County  Courthouse in Jonesboro.  \nThe Notice of Hearing was sent to Claimant by certified and first-class mail to the \nsame address as  before.  Yet  again,  while  the certified letter  was returned—on \nApril 22, 2024—the first-class letter was not returned. \n The  hearing  proceeded  as  scheduled on May 3,  2024.    Claimant  failed  to \nappear  at  the  hearing.    But  Respondents  appeared  through  counsel  and  argued \nfor  dismissal  under Ark.  Code  Ann § 11-9-702(a)(4)  (Repl.  2012)  and AWCC  R. \n099.13. \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. \n\nFULK – H302088 \n4 \n \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 The  evidence  adduced  at  the  hearing  shows  that  Claimant  has  taken  no \naction in pursuit of his claim since the filing of his Form AR-C on March 29, 2023.  \nMoreover,  he  failed  to  appear  on  the  hearing  to  argue  against  dismissal  of  the \nclaim, despite the evidence showing that both he and Respondents were provided \nreasonable notice of the Motion to Dismiss and of the hearing thereon.  Thus, the \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.    Because  of \nthis finding, it is unnecessary to address the applicability of Ark. Code Ann. § 11-\n9-702(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 \n\nFULK – H302088 \n5 \n \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 \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. H302088 DAVID M. FULK, EMPLOYEE CLAIMANT SHEARERS FOODS LLC, EMPLOYER RESPONDENT TRAVELERS INDEMN. CO., CARRIER RESPONDENT OPINION FILED MAY 3, 2024 Hearing before Administrative Law Judge O. Milton Fine II on May 3, 2024, in Jonesboro, Craighead County, Arka...","fetched_at":"2026-05-19T22:53:47.336Z","links":{"html":"/opinions/alj-H302088-2024-05-03","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Fulk_David_H302088_20240503.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}