{"id":"alj-H303952-2024-04-05","awcc_number":"H303952","decision_date":"2024-04-05","opinion_type":"alj","claimant_name":"Andrew Lopez","employer_name":null,"title":"LOPEZ VS. RHODES MACHINE SHOP, INC.AWCC# H303952April 5, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Lopez_Andrew_H303952_20240405.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Lopez_Andrew_H303952_20240405.pdf","text_length":7135,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H303952 \n \n \nANDREW I. LOPEZ, EMPLOYEE CLAIMANT \n \nRHODES MACHINE SHOP, INC., \nEMPLOYER RESPONDENT \n \nFEDERATED MUTUAL INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED APRIL 5, 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. Rick  Behring,  Jr.,  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, email  correspondence  and \nUnited States Postal Service (“USPS”) responses, consisting of four pages;  and \nRespondents’  Exhibit  1,  pleadings,  correspondence  and  forms  related  to  this \nclaim, consisting of 14 numbered pages. \n\nLOPEZ – H303952 \n \n2 \n \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on  July  18,  2023,  Claimant \npurportedly  suffered  an  injury  to  his right  hand/upper  extremity at  work  on June \n16,  2023,  when  a piece  of  pipe  that  he  had  been  welding fell  and  struck  him.  \nAccording  to  the  Form  AR-2  that  was  filed  on June  30,  2023,  Respondents \ncontroverted the claim in its entirety. \n On June 22, 2023, through then-counsel Mark Alan Peoples, Claimant filed \na Form AR-C.  Therein, he alleged that his client was entitled to the full range of \ninitial  benefits  as  a  result  of his  alleged right  hand injury.  No  hearing  request \naccompanied  this  filing.    Respondents’ counsel entered his appearance on July \n18,  2023,  and  thereafter  propounded  discovery  to  Claimant.    Those  discovery \nrequests went unanswered. \n On December 18, 2023, Peoples moved to withdraw from the case.  In an \nOrder ended on January 9, 2024, the Full Commission granted the motion under \nAWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nJanuary 19, 2024.  On that date, Respondents filed the instant motion and brief in \nsupport thereof, asking for dismissal of the claim under AWCC R. 099.13 and Ark. \nCode  Ann. § 11-9-702  (Repl.  2012).    My  office  wrote  Claimant  on January  24, \n2024, asking for a response to the motion within 20 days.  The letter was sent by \nfirst class and certified mail to the Blytheville address of Claimant listed in the file \n\nLOPEZ – H303952 \n \n3 \n \nand his Form AR-C.  USPS could not confirm that Claimant signed for the certified \nletter; but the  first-class  letter  was  not  returned.    Regardless,  no  response  from \nClaimant to the motion was forthcoming.  On February 13, 2024, a hearing on the \nMotion to Dismiss was scheduled for April 5, 2024, at 11:30 a.m. at the Craighead \nCounty Courthouse in Jonesboro.  The notice was sent to Claimant via first-class \nand  certified  mail  to  the  same  address  as  before.   Once  again, USPS  could  not \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 \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 \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. \n\nLOPEZ – H303952 \n \n4 \n \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 \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 \n\nLOPEZ – H303952 \n \n5 \n \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 June 22, 2023.  Thus, the evidence \npreponderates that dismissal is warranted under Rule 13.  Because of this finding, \nit is unnecessary to address the application of § 11-9-702. \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 \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. H303952 ANDREW I. LOPEZ, EMPLOYEE CLAIMANT RHODES MACHINE SHOP, INC., EMPLOYER RESPONDENT FEDERATED MUTUAL INS. CO., CARRIER RESPONDENT OPINION FILED APRIL 5, 2024 Hearing before Administrative Law Judge O. Milton Fine II on April 5, 2024, in Jonesboro, Craig...","fetched_at":"2026-05-19T22:55:04.527Z","links":{"html":"/opinions/alj-H303952-2024-04-05","pdf":"https://labor.arkansas.gov/wp-content/uploads/Lopez_Andrew_H303952_20240405.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}