{"id":"alj-H304059-2024-03-01","awcc_number":"H304059","decision_date":"2024-03-01","opinion_type":"alj","claimant_name":"Adam Griffin","employer_name":"Ppg Industries","title":"GRIFFIN VS. PPG INDUSTRIES. AWCC# H304059 MARCH 1, 2024","outcome":"dismissed","outcome_keywords":["dismissed:8","granted:1"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Griffin_Adam_H304059_20240301.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Griffin_Adam_H304059_20240301.pdf","text_length":7539,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H304059 \n \n \nADAM B. GRIFFIN, EMPLOYEE CLAIMANT \n \nPPG INDUSTRIES., \nEMPLOYER RESPONDENT \n \nSENTRY INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED MARCH 1, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on February 29, 2024, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Jarrod  S.  Parrish,  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  February 29, 2024, in \nLittle  Rock,  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  was  Respondents’  Exhibit  1,  pleadings,  correspondence \nand forms related to this claim, consisting of one index page and eight numbered \npages  thereafter.  Also,  in  order  to  address  adequately  this  matter  under  Ark. \nCode Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must “conduct the hearing  \n.  .  .  in  a  manner  which  best  ascertains  the  rights  of  the  parties”),  and  without \nobjection, I have blue-backed to the record documents from the Commission’s file \n\nGRIFFIN – H304059 \n \n2 \n \non the claim, consisting of two pages.  In accordance with Sapp v. Tyson Foods, \nInc., 2010 Ark. App. 517, ___ S.W.3d ___, these documents have been served on \nthe parties in conjunction with this opinion. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on  July  13,  2023,  Claimant \npurportedly  suffered  injuries  to  multiple  body  parts  at  work  on  June  16,  2023, \nwhen  he  was  involved  in  an  incident  involving  a  forklift.  According  to  the  Form \nAR-2 that was also filed on July 13, 2023, Respondents accepted the claim as a \nmedical-only one and paid benefits pursuant thereto. \n On  June  26,  2023,  Claimant  filed  a  Form  AR-C.    Therein, he alleged  that \nhe was entitled to the full range of initial and additional benefits as a result of the \ncompensable   injuries   that   he   allegedly   sustained.  No   hearing   request \naccompanied this filing. \n On  October 25,  2023,  Tanner  Thomas  moved  to  withdraw  from  his \nrepresentation of Claimant.  In an  order entered on  November 17, 2023, the Full \nCommission granted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nJanuary  3,  2024.   On  that  date,  Respondents  filed  the  instant  motion,  asking  for \ndismissal  of  the  claim  under  AWCC  R.  099.13  and  Ark.  Code  Ann.  § 11-9-702 \n(Repl. 2012).  My office wrote Claimant on January 3, 2024, asking for a response \nto the motion within 20 days.  The letter was sent by first class and certified mail \n\nGRIFFIN – H304059 \n \n3 \n \nto  the  Little  Rock  address  of  Claimant  listed  in  the  file  and on his  Form  AR-C.  \nWhile the certified letter was returned to the Commission, unclaimed, on February \n8,  2024,  the  first-class  letter  was  not  returned.    Regardless,  no  response  from \nClaimant to the motion was forthcoming.  On January 29, 2024, a   hearing on the \nMotion  to  Dismiss  was  scheduled  fo r  February 29,  2024,  at  12:00  p.m.  at  the \nCommission  in  Little  Rock.  The  notice  was  sent  to  Claimant  via  first-class  and \ncertified  mail  to  the  same  address  as  before.  While,  it  could  not  be  verified \nwhether  Claimant  signed  for  the  certified  letter,  the  first-class  letter  was  not \nreturned to the Commission. \n The   hearing   on   the   Motion   to   Dismiss   proceeded   as   scheduled   on \nFebruary 29,  2024.  Again,  Claimant  failed  to  appear  at  the  hearing.    But \nRespondents  appeared  through  counsel  and  argued  for  dismissal  under  the \naforementioned authorities. \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. \n\nGRIFFIN – H304059 \n \n4 \n \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  additional \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\nGRIFFIN – H304059 \n \n5 \n \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  February 29,  2024,  hearing  to  argue \nagainst  its dismissal) since the filing of his Form AR-C on  June 26, 2023.  Thus, \nthe evidence preponderates that dismissal is warranted under Rule 13.  Because \nof this finding, it 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 Pr  ofessional \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 additional benefits is hereby dismissed without prejudice. \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\nGRIFFIN – H304059 \n \n6 \n \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. H304059 ADAM B. GRIFFIN, EMPLOYEE CLAIMANT PPG INDUSTRIES., EMPLOYER RESPONDENT SENTRY INS. CO., CARRIER RESPONDENT OPINION FILED MARCH 1, 2024 Hearing before Administrative Law Judge O. Milton Fine II on February 29, 2024, in Little Rock, Pulaski County, Ark...","fetched_at":"2026-05-19T22:55:50.876Z","links":{"html":"/opinions/alj-H304059-2024-03-01","pdf":"https://labor.arkansas.gov/wp-content/uploads/Griffin_Adam_H304059_20240301.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}