{"id":"alj-H304329-2024-06-06","awcc_number":"H304329","decision_date":"2024-06-06","opinion_type":"alj","claimant_name":"Kimberly Mccuien","employer_name":null,"title":"McCUIEN VS. AMAZON COM SVCS. LLCAWCC# H304329June 6, 2024","outcome":"dismissed","outcome_keywords":["dismissed:9","granted:1"],"injury_keywords":["knee"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/McCuien_Kimberly_H304329_06062024.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"McCuien_Kimberly_H304329_06062024.pdf","text_length":8123,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H304329 \n \n \nKIMBERLY D. McCUIEN, EMPLOYEE CLAIMANT \n \nAMAZON COM SVCS. LLC, \nEMPLOYER RESPONDENT \n \nAMER. ZURICH INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED JUNE 6, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on June  6,  2024, in \nLittle Rock, Pulaski 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 Arkansas  Workers’  Compensation \nCommission (the  “Commission”) on  a Motion  to Dismiss  by  Respondents.  A \nhearing on the motion was conducted on June 6, 2024, in Little Rock, Arkansas.  \nNo testimony was taken in the case.  Claimant failed to appear at the hearing; she \nnotified   the   Commission   that   she   was   waiving   her appearance see   infra).  \nAdmitted into evidence were Commission Exhibit 1 and Respondents’ Exhibit 1—\nforms,  pleadings  and  correspondence  related  to  the  claim—consisting  of 29 and \n24 pages, respectively. \n\nMcCUIEN – H304329 \n \n2 \n \n \n The evidentiary record reflects the following procedural history: \n Per  the Form  AR-C filed on July  7,  2023,  Claimant allegedly injured  her \nright knee at work on June 6, 2023, with she was struck by the tongue of a cart.  \nOn  August  15,  2023,  she  emailed  the  Clerk  of  the  Commission,  requesting  a \nhearing on her claim.  According to the Form AR-2 that was filed on October 24, \n2023, Respondents accepted the claim as a medical-only one. \n The  file  was  assigned  to  the  Legal  Advisor  Division of  the  Commission.  \nHowever, on September 14, 2023,  Claimant was  sent a  letter,  informing  her  that \nbecause she had not returned her Legal Advisor questionnaire response, her file \nwas being returned to the Commission’s general files.  She complied thereafter, \nfiling   a   completed  questionnaire  on   October   12,   2023.      Therein,   Claimant \nrepresented that the value of her claim was in excess of $2,500.00, and that she \nwas not interested in pursuing mediation. \n Because of this, the file was reassigned to my office on October 17, 2023, \nto conduct a full hearing.  Prehearing questionnaires and preliminary notices were \nissued  to  the  parties  on  October  18,  2023.    In  the  meantime,  on  November  2, \n2023,  Claimant  emailed  the  Commission,  requesting  her  one-time  change  of \nphysician.    As  a  result,  I  suspended  the  prehearing  process  and  had  the  file \nreassigned  to  the  Medical  Cost  Containment  Division of  the  Commission to \nprocess  the  request.   That  division  entered  an  order  on  December  18,  2023, \nchanging Claimant’s authorized treating physician from Dr. John Adametz to Dr. \n\nMcCUIEN – H304329 \n \n3 \n \n \nScott  Bowen,  and  scheduling  an  appointment  with  the  latter  for  December  28, \n2023.  The  appointment  took  place,  and  Respondents  accepted  the  treatment \nrecommendations  of  Bowen.  The  doctor released  her  from  treatment  as  of \nFebruary 1, 2024, assigning no permanent restrictions in connection with her knee \ninjury. \n Claimant  made  another  hearing  request  on  April  2,  2024.    The  file  was \nreassigned  to  my  office  on  April  3,  2024.    But  before  prehearing  questionnaires \nwere issued to the parties, Respondents on April 10, 2024, filed the instant Motion \nto Dismiss under Ark. Code Ann. § 11-9-702(a)(4) & (d) (Repl. 2012) and AWCC \nR. 099.13. \n Prehearing  questionnaires  were  issued  to  the  parties  on  April  12,  2024.  \nSince the hearing request came before the motion’s filing, I informed the parties \non  April  15,  2024,  that  I  was  holding  the  motion  in  abeyance.  On  May  1,  2024, \nClaimant  emailed  my  office  that  she  was  withdrawing  her  hearing  request \nbecause Respondents and she were able to resolve the matter amicably.  Based \non this, Respondents’ counsel that same day requested a hearing on the Motion \nto  Dismiss.    The next day,  May 2,  2024,  Claimant  notified my  office  that  she  did \nnot object to the motion being granted, and that she would not be appearing at the \nhearing thereon.  The Notice of Hearing, which scheduled a hearing on the Motion \nto  Dismiss  for  June  6,  2024,  at  9:30  a.m.  at  the  Commission  in  Little  Rock, was \n\nMcCUIEN – H304329 \n \n4 \n \n \nsent to the parties that same day via certified mail.  Claimant signed for her copy \nof the notice on May 9, 2024. \n The  hearing  on  the motion  proceeded  as  scheduled  on June  6,  2024.  \nAgain, Claimant did not appear.  But Respondents appeared through counsel and \nargued for dismissal under the aforementioned 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 claim. \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 \nthis claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim  is  hereby \ndismissed without prejudice under AWCC R. 099.13. \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 \n\nMcCUIEN – H304329 \n \n5 \n \n \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 this \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 the claim because she has taken no further action in \npursuit  of  it—including  appearing  at  the June  6,  2024,  hearing on  the  Motion  to \nDismiss—since withdrawing her hearing request and communicating that she did \nnot  object  to  dismissal of  the  claim.  Thus,  the  evidence  preponderates  that \ndismissal is warranted under Rule 13.  Because of this finding, it is unnecessary \nto address the applicability of Ark. Code Ann. § 11-9-702(a)(4) & (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. \n\nMcCUIEN – H304329 \n \n6 \n \n \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. \nIV.  CONCLUSION \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","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H304329 KIMBERLY D. McCUIEN, EMPLOYEE CLAIMANT AMAZON COM SVCS. LLC, EMPLOYER RESPONDENT AMER. ZURICH INS. CO., CARRIER RESPONDENT OPINION FILED JUNE 6, 2024 Hearing before Administrative Law Judge O. Milton Fine II on June 6, 2024, in Little Rock, Pulaski Co...","fetched_at":"2026-05-19T22:52:27.621Z","links":{"html":"/opinions/alj-H304329-2024-06-06","pdf":"https://labor.arkansas.gov/wp-content/uploads/McCuien_Kimberly_H304329_06062024.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}