{"id":"alj-H303493-2024-04-09","awcc_number":"H303493","decision_date":"2024-04-09","opinion_type":"alj","claimant_name":"Gabriel Corp","employer_name":null,"title":"CORP VS. LEXICON, INC.AWCC# H303493April 9, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":["knee"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Corp_Gabriel_H303493_20240409.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Corp_Gabriel_H303493_20240409.pdf","text_length":6655,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H303493 \n \n \nGABRIEL B. CORP., EMPLOYEE CLAIMANT \n \nLEXICON, INC., \nEMPLOYER RESPONDENT \n \nACIG INS. 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, consisting of nine and \nseven pages, respectively. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness dated June  9,  2023,  Claimant \npurportedly suffered an injury to his right knee at work on May 22, 2023, while he \n\nCORP – H303493 \n \n2 \n \nwas  welding.  According  to the  Form  AR-2 that  was filed on June  14,  2023, \nRespondents denied the claim in its entirety. \n Claimant  filed  a  Form  AR-C  on  or  about  May  31,  2023,  concerning  this \nalleged injury.  Therein, he requested the full range of initial benefits.  No hearing \nrequest  accompanied  this  filing.   Respondents’ counsel entered his appearance \nby way of letter on June 20, 2023. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nJanuary  9,  2024.    On  that  date, Respondents filed  the  instant  motion,  asking  for \ndismissal of the claim—ostensibly under AWCC R. 099.13, since it asserted “lack \nof  prosecution”  as  the  basis  for  dismissal.   The  file  was  assigned  to  me  on \nFebruary 2, 2024; and on February 5, 2024, my office wrote Claimant, asking for a \nresponse  to  the  motion within  20  days.   The  letter  was  sent  by  first  class and \ncertified mail to the Lake St. Louis, Missouri address of Claimant listed in the file \nand  his  Form  AR-C.   The  United  States  Postal  Service (“USPS”) was  unable  to \nconfirm whether Claimant claimed the certified letter; but the first-class letter was \nnot   returned.    However,   no   response   from Claimant to   the   motion was \nforthcoming.   For  that reason,  on February 29,  2024,  a  hearing on the Motion to \nDismiss was  scheduled for April  5, 2024, at 12:00 p.m. at the Craighead County \nCourthouse  in Jonesboro.   The  notice  was  sent  to  Claimant  via  first-class  and \ncertified  mail  to  the  same  address  as  before.    Once  again,  USPS  could  not \n\nCORP – H303493 \n \n3 \n \nconfirm  that  Claimant  claimed  the  certified  letter;  but  the  one  sent  by  first-class \nmail was not returned to the Commission. \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 \nauthority. \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 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. \n\nCORP – H303493 \n \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). \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 \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 Form AR-C on May 31, 2023.  Thus, the evidence \npreponderates 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 \n\nCORP – H303493 \n \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 \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 \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. H303493 GABRIEL B. CORP., EMPLOYEE CLAIMANT LEXICON, INC., EMPLOYER RESPONDENT ACIG INS. CO., CARRIER RESPONDENT OPINION FILED APRIL 9, 2024 Hearing before Administrative Law Judge O. Milton Fine II on April 5, 2024, in Jonesboro, Craighead County, Arkansas. ...","fetched_at":"2026-05-19T22:55:10.823Z","links":{"html":"/opinions/alj-H303493-2024-04-09","pdf":"https://labor.arkansas.gov/wp-content/uploads/Corp_Gabriel_H303493_20240409.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}