{"id":"alj-H302115-2024-04-18","awcc_number":"H302115","decision_date":"2024-04-18","opinion_type":"alj","claimant_name":"Latricia Polk","employer_name":"Tokusen USA, Inc","title":"POLK VS. TOKUSEN USA, INC. AWCC# H302115 April 18, 2024","outcome":"dismissed","outcome_keywords":["dismissed:7"],"injury_keywords":["knee"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Polk_Latricia_H302115_20240418.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Polk_Latricia_H302115_20240418.pdf","text_length":6590,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H302115 \n \n \nLATRICIA DENISE POLK, EMPLOYEE CLAIMANT \n \nTOKUSEN USA, INC., \n EMPLOYER RESPONDENT \n \nBRIDGEFIELD CASUALTY INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED APRIL 18, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on April 18, 2024, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented by  Mr. Jason  M.  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,  forms, \npleadings, and correspondence related to this claim, consisting of 16 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 on March 21,  2023, when  she  fell  at  her \n\nPOLK – H302115 \n2 \n \nworkplace.    Per   the   Forms AR-2   filed   on March 31 and April   6,   2023, \nRespondents accepted a  patellar  injury and  paid  medical  and  indemnity  benefits \npursuant thereto. \n On May  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 for injuries to her right knee and “other whole body.”  No hearing request \naccompanied this filing.  Respondents informed the Commission on May 9, 2023, \nthat they were now controverting the claim in its entirety.  Their counsel made his \nentry  of  appearance  on  July  13,  2023.    On January  18,  2024,  York  moved  to \nwithdraw from her representation of Claimant.  In an Order entered on February 8, \n2024, the Full Commission granted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  no  further  action  was  taken  on  the  case  until \nFebruary  16,  2024,  when  Respondents  filed  the  instant Motion  to Dismiss, \ncontending that “[n]o efforts to prosecute the claim have been made in more than \n[six]  6  months  from  the  date  of  the  Form  [AR-]C.”  On February  21,  2024, my \noffice wrote  Claimant, requesting  a  response  to  the  motion  within 20 days.  This \ncorrespondence  was  sent  by  both  certified  and  first-class  mail to  the Conway \naddress for Claimant listed in the file and on her Form AR-C.  The certified letter \nwas  returned  to  the  Commission,  undelivered, on March  18,  2024;  but the  first-\nclass  correspondence  was not returned to  the  Commission.  However,  no \nresponse by Claimant to the motion was forthcoming. \n\nPOLK – H302115 \n3 \n \n On March 19, 2024, a hearing on Respondents’ motion was scheduled for \nApril  18,  2024, at 9:30 a.m.  at  the Commission in Little  Rock.    The Notice  of \nHearing was sent to Claimant by certified and first-class mail to the same address \nas before.  In this instance, it could not be verified whether Claimant signed for the \ncertified letter; but again, the first-class letter was not returned. \n The hearing proceeded as scheduled on April 18, 2024.  Claimant failed to \nappear  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\nPOLK – H302115 \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 May  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(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 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 \n\nPOLK – H302115 \n5 \n \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. H302115 LATRICIA DENISE POLK, EMPLOYEE CLAIMANT TOKUSEN USA, INC., EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INS. CO., CARRIER RESPONDENT OPINION FILED APRIL 18, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on April 18, 2024, in Little ...","fetched_at":"2026-05-19T22:55:36.278Z","links":{"html":"/opinions/alj-H302115-2024-04-18","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Polk_Latricia_H302115_20240418.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}